MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This Criminal Revision Petition is directed against the order dated 15.09.2015 ("impugned order") passed by the learned Additional Sessions Judge-H, Quetta ("appellate court"), whereby the post arrest bail granted to the petitioners by the Judicial Magistrate-II, Quetta vide order dated 3rd April, 2015 was set aside.
2. Brief facts of the instant petition are that on the written report of applicant/complainant Abdul Majeed son of Ahmed Khan, FIR No.46 of 2015 was lodged with Police Station Kuchlak, District, Quetta. Wherein he alleged that on 24th March, 2015, he was present on his land, meanwhile the respondents Nos.1 and 2 assaulted upon him and caused him injuries with kicks and fists. He further alleged that the accused persons also extended threats of dire consequences.
3. The learned counsel for the petitioners contended that the impugned order is based upon non- reading and misreading of the evidence as the case against the petitioners fell within the ambit of section 497(2), Cr.P.C. And the basic ingredients for cancellation of bail within the meaning of section 497(5), Cr.P.C. Were totally missing; that no recovery was effected from the petitioners at the time of arrest; that there was nothing on record to suggest that the petitioners after being enlarged on bail had misused the concession; that there was absolutely nothing on the record to implicate the petitioners with the alleged commission of offence. He finally urged that the impugned order passed by the Additional Sessions Judge-II, Quetta having been passed in flagrant violation of law deserves to be set aside and the petitioners be admitted to bail as per order of the Judicial Magistrate-II, Quetta.
4. Mr. Aamir Muhammad Lehri, Advocate for respondent No.2/complainant strongly opposed the contention and contended that the petitioners have committed heinous crime; that no fresh ground was available to the petitioners to file second bail application before the same court; that the judicial Magistrate-II, Quetta has also erred in law while granting bail to the petitioners, when no fresh ground for moving a subsequent bail application was, available; that the Additional Sessions Judge has rightly cancelled the bail granted to the petitioners. He finally urged that the petition having no merits is liable to be dismissed and after recalling the order dated 17.09.2015 the petitioners be sent to judicial custody.
5. The learned APG also endorsed the arguments advanced by the counsel for the complainant and urged that the order passed by the Additional Sessions Judge-II, Quetta being unexceptional does not warrant any interferente by this court.
6. Heard. Record perused.
7. The petitioners were admitted to bail vide order dated 3.4.2015 passed by learned Judicial Magistrate-II Quetta. The order passed by Judicial Magistrate-II, Quetta was assailed by the complainant before the Sessions Judge, Quetta which was subsequently transmitted to the file of ASJ-II Quetta whereby the bail granted to the petitioners was cancelled vide impugned order. The order passed by ASJ-II, Quetta reveals that while cancelling the bail of the petitioners the court relied upon the judgment in the case titled "State through Advocate General NWFP V. Zubair and 4 others" (PLD 1986 SC 173) mainly on the ground that earlier bail application filed by the petitioners was rejected in accordance with law, because of none availability of the grounds for grant of bail in favour of the petitioners, therefore, the said grounds could not be reagitated at subsequent stage.
Be that as it may, it is well settled that without availability of strong, cogent and convincing grounds bail cannot be cancelled. It is also well settled that benefit of any doubt rising out even at bail stage shall be termed as a question calling for further inquiry and therefore, the accused becomes entitled for grant of bail.
8. The contention raised by the learned counsel for the complainant with regard to conduct of the petitioners, the manner and the procedure adopted by the trial court i.e. Judicial Magistrate-II, Quetta is also without any substance. The Additional Judge has erred in law and wrongly applied the ratio laid down in Zubair's case (supra).
It is well settled that each criminal case has its own features and is required to be decided on its own merits independently. Reference is "' made to Haji Muhammad Nazir v. The State (2008 SCM R 807). Therefore, fresh bail application can be moved on fresh ground at a subsequent stage, the law of bail does not impose any embargo on filing of successive bail applications, therefore, the order passed on successive bail applications would not amount to review of earlier order passed on the bail application in view of dictum laid down in Ali S'haheryar v. The State (2008 SCM R 1448).
However, withdrawal of bail application from one court and re-filing before another court, or/and the bail application once decided on merits, cannot be entertained on the same grounds, because those grounds were available in earlier round but were not agitated, and in that case, if bail is granted to the accused, it would be against the dictum laid down by the Hon'ble Apex Court in Zubair's case supra.
9. The provision of section 497(5), Cr.F.C. Is not punitive in nature and the accused shall always be presumed to be innocent unless proven guilty, therefore, the principle of benefit of doubt is known as principle of further inquiry in bail matter, when the court extends the benefit of doubt at bail stage, because in dispensation of justice, particularly in criminal justice system, only a presumption of innocence could be drawn and in no case the presumption of guilt can be drawn.
For purpose of bail, when the alleged offence for which the accused is charged, entails two quantum of sentences, the lesser shall be considered, while deciding the question of bail. Moreover, when the offence is punishable with imprisonment or with fine, at the bail stage' the offence shall not be presumed as non-bailable, because, it is entirely possible that at the final conclusion, if accused is found guilty and court punishes him with fine only, his incarceration as under trial prisoner would not be justiciable.
10. The Hon'ble Apex Court, while dealing with an identical preposition has laid down the principle for grant of bail in an elaborative manner in the judgment rendered in the case titled "The State v.
Rafiq Ahmed Channa" (2010 SCM R 580) and it is instructive to reproduce the relevant passage therefrom for learning of all concerned: "While granting bail or otherwise, the Court is required to consider the following facts:- a) Whether there is or is not a reasonable ground for believing that the accused has committed the offence with which he is charged? b) Whether the case requires further enquiry into the guilt of commission of non-bailable offence within the scope of section 497(2), Cr.P.C.? c) Whether the accused is minor, woman, sick or infirm person? d) The nature and gravity of the charge. e) The severity or degree of the punishment which might follow in the circumstances of the case on conviction.
I) The danger of the accused absconding if he is released on bail . g) The danger of witnesses being tampered with.
Ii) The danger of the alleged offence being continued or repeated. i) The character, the means and standing of the accused. j) An opportunity to the accused to prepare his defence. k) The accused has already been in jail for a considerable period and the trial is not likely to conclude in near future at least. l) Bail should never be withheld as a punishment."
11. In the instant case, according to the FIR and the medical certificate, the complainant has only sustained internal injuries and after medical treatment the complainant did not remain hospitalized, thus the injuries attributed to the petitioners come within the purview of other hurts, punishable under section 337-L, P.P.C., but since the complainant/injured witness did not disclose that the injuries caused to him in any way endangered his life, or caused him to remain in severe bodily pain for twenty days or more or rendered him unable to follow the ordinary pursuit's of life for twenty days or more. Thus, the injuries sustained by the complainant are covered by section 137- L(2), P.P.C. Which is bailable in nature. Under such circumstances the petitioners cannot be kept behind the bars as mere punishment for an offence which is bailable in nature and falls within the definition of section 337-L(2), P.P.C.
' In view of the above discussion I am inclined to accept this petition. Consequently the order dated 15.9.2015 passed by Additional Sessions Judge-II, Quetta is set aside and the order dated 3.3.2015 passed by Judicial Magistrate-II in FIR No.46 of 2015 police station, Kuchlak Quetta under sections 337-ADF Q&D, 504, 506 and 34, P.P.C. Is upheld.
These are the reasons for the short order announced in open court.