1. ' SHAUKAT ALI MEMON, J.---Through this application, post-arrest bail is sought by the applicant after his pre-arrest and post-arrest bail applications were rejected by the Court of VI-Additional Sessions Judge, Hyderabad.
2. ' As per prosecution case, the applicant on 16-2-2009 at about 1840 hours along with co-accused Ali Gul Ghalloo and Razak Ghalloo, duly armed with pistol and three unknown persons armed with Lathis is stated to have forced their entry into the house of complainant Khan Muhammad Khushk and on gun-point demanded the keys of the car and motorcycle which was resisted by the complainant's brother to which all accused persons gave him beating with fists and kicks while applicant/accused directly fired at complainant's brother Abdul Wahid hitting him at his leg. The hue and cries attracted Akhter Hussain and Sajjad, thus culprits ran away, whereafter injured was shifted to hospital for treatment and in consequences F.I.R. Was lodged on 16-2-2009 at 2330 hours.
3. ' The case after due investigation was challaned and ultimately referred for trial to the Court of VI- Additional Sessions Judge, Hyderabad where applications for pre and post-arrest bail, moved on behalf of the applicant, were declined.
4. ' The reasons assigned by the trial Court for declining the post-arrest bail is that all the grounds raised were taken into consideration in the earlier bail application and the only new ground in the post-arrest bail application urged was that requirements of section 337-N, P.P.C. Are to be fulfilled for conviction which provides that notwithstanding anything contained in the chapter in case of hurt, the Court may having regard to the kind of hurt caused by the accused in addition to payment of Daman, award Tazir when offender is a previous convict, habitual, hardened and desperate or dangerous criminal or the offence has been committed by him in the name and the protection of the honour. The observations of the trial Court are that the separate provisions of the chapter catered different situation and provides additional punishment to the offender to come within the categories mentioned therein and this does not make substantial sections of the chapter redundant.
5. ' In order to ascertain as to whether the accused is a previous convict, hardened, dangerous or desperate criminal, this Court by order dated 5-8-2013 directed SSP Hyderabad to submit criminal record against the applicant/accused by 26-8-2013, which accordingly has been submitted showing registration of seven crimes against the applicant/accused at different police station of the city. Except crime No.120/2012 of Police Station Cantt., which has been disposed of in "C" Class, all culminated into submission of challan.
6. ' In rebuttal, learned counsel for the applicant placed on record copies of acquittal judgment/orders in three F.I.Rs. Bearing Crime Nos.352/2008 (Police Station Qasimabad), 100/2009 (Police Station Qasimabad) and 239/2003 (Police Station Cantonment) and bail order in Crime No.16/2013 (Police Station Cantonment). For Crime No.280/2009 (Police Station Qasimabad), it is contended that same is pending trial, which fact has not been controverted by learned Deputy Prosecutor-General.
7. ' It is argued that the registration of the crime and involvement of the accused is motivated one as complainant party is habitual in teasing the mohalla girls and when they were objected to, the false case has been registered against the applicant and his brother. It is next argued that pendency of the cases and registration of crime is no ground for withholding the concession of bail until case is tried and decided against the accused and referring to the bail order and judgments/orders of acquittal placed on record it is further argued that in three cases acquittal has been recorded, while in fourth case bail is granted and one crime/F.I.R. Was disposed of in "C" class, whereas the sixth one is the instant crime which is pending trial, thus according to learned counsel, the applicant/accused cannot be adjudged as habitual, desperate and hardened criminal for purpose of concession of bail. In support authority 1999 PCr.LJ 271 (Karachi) is relied upon wherein mere pendency of cases against accused and the view taken by the trial Court was held as no ground for rejection of bail and bail was allowed.
8. ' Conversely learned D.P.G. Opposed the application with the submissions that accused has committed a non-bailable offence and has got a criminal record, thus is not entitled to any concession.
9. ' I have considered the arguments advanced at bar and have scrutinized the record.
10. Admittedly punishment of Tazir only is awarded when ingredients of provisions as discussed by learned trial Court are satisfied. In the instant case, no previous record of conviction against the applicant is placed on record, thus in absence of such record, the applicant/accused cannot be stated as habitual, hardened and desperate criminal inviting punishment of Tazir under section 337-A(iii), P. P.C.
11. Even otherwise, the maximum punishment of three years as Tazir, which too does not fall within the prohibitory clause of section 497, Cr.P.C. And the fact that applicant is behind bars since 12-3-2013, this application is allowed and the bail is granted to the applicant in sum of Rs.200,000 (Two Lac) and P.R bond in the like amount to the satisfaction of the trial Court.