Sayye d Mazahar Ali Akbar Naqvi, J. Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 13.01.2021 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 155/2020 dated 03.03.2020 under Sections 337- F(vi)/337-A(i)/34, P.P.C. at Police Station Saddar, Sheikhupura, in the interest of safe administration of criminal justice.
2. Briefly stated the allegation against the petitioner is that he along with two co-accused attacked on the 'complainant's son and struck the complainant's son on the right hand with an iron rod due to which his bone got fractured.
3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case due to mala fides of the complainant in connivance with local police. Contends that the FIR was registered after a delay of three days for which no plausible explanation has been given and the same shows deliberation and consultation on the part of the complainant. Contends that in fact the complainant party was the aggressor and in the incident the petitioner had also sustained injuries on his head, nose and left arm, which were suppressed and despite the fact that the petitioner immediately approached the Police for registration of FIR but his application was kept pending and the cross-version was registered after hectic efforts. Contends that the petitioner was also got medically examined on the same day and the factum of receiving injuries on his person has been proved. Contends that the offence under Section 337- A(i), P.P.C. is bailable in nature whereas the offence under Section 337-F(vi), P.P.C. does not fall within the prohibitory clause of Section 497, Cr.P.C., therefore, the petitioner deserves the concession of pre-arrest bail.
4. On the other hand, learned Law Officer defended the impugned order whereby pre-arrest bail was declined to the petitioner by contending that the petitioner has specifically been nominated in the crime report with a specific accusation of fracturing the right hand of the complainant's son, therefore, he does not deserve any leniency by this Court.
5. We have heard learned counsel for the parties at some length and have perused the record with their assistance.
It is an admitted position that the FIR in the instant case was registered after a delay of three days for which no plausible explanation has been given. As per the contents of the crime report, the allegation levelled against the petitioner is that he caused blow on the right hand of the complainant's son with an iron rod due to which it got fractured/broken. However, it is the case of the petitioner that the complainant party was the aggressor and in the incident the petitioner had also sustained injuries on his head, nose and left arm, which were suppressed. The petitioner was got medically examined on the same day i.e. 29.02.2020 and the medico legal examination certificate confirms the factum of receiving injuries by the petitioner. We have been informed that the petitioner immediately approached the Police for registration of FIR and after hectic efforts his cross-version could be recorded and the complainant's son has been found guilty in cross-version.
It is also not denied that the complainant's son namely Amjad was medically examined after three days of the occurrence for which no plausible explanation has been given. The perusal of record reveals that previously an FIR was registered against the petitioner, by the complainant party but the same was cancelled.
Keeping in view this aspect of the matter that the previous registration of case was proved to be false and was recommended for cancellation coupled with the fact that the medico legal of the complainant's son was conducted after three days of the incident and the injuries caused to the petitioner were suppressed, the possibility of implicating the petitioner in the instant case with mala fide intention cannot be ruled out. No doubt the merits of the case can be touched upon while granting pre-arrest bail in view of the dictum laid down by this Court in Miran Bux v. The State (PLD 1989 SC 347). The offence under Section 337-A(i), P.P.C. is bailable in nature whereas the offence under Section 337-F(vi), P.P.C. does not fall within the prohibitory clause of Section 497, Cr.P.C. In these circumstances, a prima facie doubt has arisen qua the authenticity of the prosecution's case. It has been held by this Court from time to time that benefit of doubt, if established, can be extended even at bail stage. Reliance is placed on Samiullah v. Laiqzada (2020 SCMR 1115) and Muhammad Faisal v. The State (2020 SCMR 971). All these circumstances conjointly persuade us to hold that the case of the petitioner squarely falls within the purview of Section 497(2), Cr.P.C. entitling for further inquiry into his guilt and it is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner.
6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 13.01.2021 and admit the petition to pre-arrest bail subject to his furnishing bail bonds in the sum of Rs. 200,000/- with one surety in the like amount to the satisfaction of learned Trial Court.