Through this petition, petitioner seeks post-arrest bail in case F.I.R. No, 401/2009 dated 03.11.2009 registered at Police Station Qadirpur Raan, District Multan, under Sections 337-H(2), 337A(i), 337(i), 338-B, 337-L(2), 148, 149 P.P.C., at the instance of Nabi Bakhsh, complainant, Respondent No, 2.
2. Brief facts of the case are that on 23.09.2009 his son Haq Nawaz along with his wife Mst.
Malookan Bibi was busy in cutting grass in the fields where the petitioner along with other co- accused came and started beating to his son and Mst. Malookan. I he petitioner grave a club blow on the abdomen of Mst. Malookan Bibi, whereupon, she started bleeding and co-accused, Zahoor Ahmad also gave blow of wire lock on the breast and, abdomen of Mst. Malookan Bibi, thereby she fell on the ground co-accused Ashiq gave a blow of Butt of pistol .30 bore on the head of Haqnawaz. On hue and cry the witnesses approached the place of occurrence and rescued complainant's son of Haq Nawaz and Mst. Malookan Bibi due to injuries lost her pregnancy, hence, this FIR.
3. Petitioner applied for his post-arrest bail before the learned Judicial Magistrate, Multan, who vide order dated 19.01.2010 dismissed the same. Thereafter, petitioner filed his post-arrest bail before the learned Additional Sessions Judge, Multan, who vide order dated 03.2010 also dismissed the same.
4. Learned counsel for the petitioner contends that petitioner has been falsely involved in this case; there is unexplained delay of one month and 10 days in lodging the FIR; false implication cannot be ruled out; offence under Section 337-H(2), A-(ii), F(I), 338-D PPC are all bailable except Section 337- L(2) PPC; petitioner has been falsely implicated in this case; petitioner was arrested on 11.01.2010 since then he is behind the bar; further contends that injured Malookan when first time was examined on 23.09.2009 by the doctor vide MLC No, 214/09 dated 23.09.2009 was issued to Mst.
Malookan Bibi wherein it is clearly mentioned that Mst Malookan Bibi at the time of examination was pregnant of 27 weeks and 5 days and it was found that no discharge or bleeding was found; further submits that after passage of 10 days, she appeared before the Medical Board for re- examination; the Medical Board opined that Mst. Malookan Bibi has misled the Court that no MLC has been issued and fetus was aborted on examination; further submits that there was no visible injury on the abdomen of Mst. Malookan Bibi; no injury was found in the MLC on the abdomen of Mst. Malookan; further contends that as a result of abortion complainant did not prove any fetus (Dead or alive) before the Medical Board or before the doctor at any stage, which makes the case of the petitioner one of further inquiry into his guilt; Section 338-H PPC is not attracted to the facts and circumstances of the case; further submits that Medical Board was not independent because it mentioned in the opinion "condition which led to expulsion of fetus cannot be determined after lapse of four weeks, abortion/expulsion co-relates with the scuffle of 23.09.2009 and falls under Section 382-B PPC"; petitioner was entangled along with his father and brother, Ashiq; co-accused is the father of the petitioner and Rashid is the brother of the petitioner another co-accused Mahrram Ali has been allowed bail by the Judicial Magistrate; in the MLC some injuries were found on log which are not attributed to anybody; when first time the lady was medically examined there was no clue of abortion but at the second time with the connivance of the doctor report was sought; report under Section 173 Cr.P.C. has been submitted; petitioner is no more required for any probe and inquiry; therefore, petitioners are entitled to the concession of bail.
5. On the other hand, learned D.D.P.P. vehemently opposed the grant of bail to the petitioner on the ground that petitioner is nominated in the FIR with specific role; offence falls within the prohibitory clause of Section 497 Cr.P.C. Section 337-L(2) PPC is attracted maximum punishment of which is 10 years; petitioner has committed heinous offence, therefore, petitioner is not entitled to the concession of bail.
6. I have heard the learned counsel for the parties at length and perused the record.
7. There is unexplained delay of one month and 10 days in lodging the FIR which gave rise to presumption of false presumption which goes in favour of the petitioner accused. When the injured lady Mst. Malookan was examined first time by the doctor no injury was found on her abdomen.
Fetus at any stage is not observed or seen by the doctor, Medical Board or the Investigating Officer which is alleged as caused miscarriage which makes the case of the petitioner one of further inquiry. The other co-accused Mahrram Ali was allowed bail by the learned trial Court of Judicial Magistrate. Whole Family members are dragged with mala fide intention in this case, Ashiq is the father of the petitioner and Rashid is the brother of the petitioner. No sanctity can be attached to the opinion of the Medical Board because no fetus is seen (dead or alive) as a consequence of abortion as a piece of evidence. It is observed in case titled Amir vs. The State (PLD 1972 Supreme Court 277) for purpose of bail law not to be stretched in favour of prosecution. Benefit of doubt, if any arising, must go to accused. A fetus is not observed or looked on the body (dead or alive) which gave rise to doubt about the story of prosecution and the benefit of doubt must go to the accused. Report under Section 173 Cr.P.C. has been filed before the learned trial Court. Charge has also been framed but no prosecution witness is recorded. The petitioner is no more required for any probe or inquiry. It will not serve any useful purpose for keeping the petitioner behind the bars for an indefinite period as punishment. It is observed in case titled Haji Muhammad Nazir vs. The State (2008 SCM R 807) that grant of bail does not mean acquittal of accused but only change of custody from Government. Agencies to the Sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he is required to be produced. If the petitioner is found guilty in the trial he will be convicted and sentenced accordingly. If the petitioner is acquitted there will be no reparation for depravation of his liberty by putting them behind the bars in case of refusal of bail. Reliance can be placed on the judgment of Hon'ble Supreme Court reported as Tariq Bashir etc. vs. The State (PLD 1995 SC 34).
"The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfaction reparation can be offered to an innocent man for his unjustified incarceration at any state of the case, albeit his acquittal in the long run."
8. In the light of above discussion, this petition is accepted and the petitioner is admitted to post- arrest bail subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. However, observations made above are tentative in nature, will not prejudice the case of either side during the trial.