' This revision petition is directed against the order of the District Criminal Court, Mirpur, dated 30- 11-1994, whereby the concession of bail before arrest was allowed to the non-petitioners.
2. The succinct facts of the case are that on 18-11-1994, complainant Muhammad Adalat was coming towards his house from Issar. When he reached near Shrine Peer Gonhi, then Javaid and Tariq suddenly appeared. They were sitting in the way with a planning. Tariq was armed with iron bar and Javaid with stick. They blocked the way. Tariq inflicted an injury with iron bar on the head of complainant and he fell down from the motorcycle. Javaid caused an injury on the left shoulder with the stick. Tariq inflicted another injury on the wrist with the iron bar. Javaid caused an injury with the stick on the mouth of the complainant. He raised noise. Muhammad Yonus son of Muhammad Khan and Allah Dad son of Hassan Muhammad reached there and intervened. This occurrence was committed on the abetment of Muhammad Yasin son of Manga Khan. A case was registered against the non-petitioners at Police Station Islamghar.
3. The non-petitioners moved an application for bail before arrest before the District Criminal Court, Mirpur. The said Court firstly allowed the interim bail and subsequently confirmed the same vide its order, dated 30-11-1994. The instant revision petition has been filed against this order of the District Criminal Court, Mirpur.
4. The learned counsel for the petitioner argued, that prima fade, offence under section 307 was established against the accused non-petitioners. The said offence comes within the prohibition contained in section 497(1). He further maintained that this was not the case of bail before arrest and the District Criminal Court, Mirpur has wrongly allowed the concession of bail before arrest to the non-petitioners.
5. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioners vehemently argued, that the injuries attributed to the non-petitioners are simple in nature. The non-petitioners were not having any intention to commit the murder. If they would have any such like intention, then they would have caused grievous injuries and the simple injuries would have not been caused to the complainant. He further maintained that existence of mens rea is the basic condition for the offence under section 307 of the P.P.C. Which is lacking in the instant case.
6. I have heard the learned counsel for the parties and perused the record of the case.
7. In the instant case, the allegation against the non-petitioners pertain to offence under section 307 of the P.P.C. The essential ingredient of offence under section 307 of the P.P.C. Is intention or knowledge. Where the offender does an act with the intention or knowledge of causing the death, then he will be liable to be punished under section 307 of the P.P.C. Intention is state of mind which cannot be ascertained ordinarily, but can only be inferred from the acts of the accused or from the circumstances. For this purpose it is essential to examine the acts itself, and to adjudge whether such acts by itself were sufficiently capable of causing the death in natural and ordinary course of events. The nature or seat of the injury provides a reasonable assistance for determining the intention of the accused. When the hurt is inflicted with the intention of causing endanger to the life of victim, the accused should be saddled with the intention as provided in section 307 of the P.P.C.
The seat of injury, the weapon used pretends the intention of the offender. The nature of the injury alone is not perfect and proper criterion for assessing or determining the intention of the accused.
Section 307 of the P.P.C., contains the word hurt. The hurt includes the simple hurt and it does not mean only grievous hurt. It covers both the grievous and simple. Even the simple hurt caused on the vital part of the body constitutes offence under section 307 of the P.P.C. In the instant case, Tariq inflicted an injury with the iron bar on the head of the complainant. The complainant sustained 4 c.m. Long lacerated wound on the vault of skull as reported by Doctor. The injury was caused by Tariq non-petitioner on the most vital and sensitive part of body. The seat of the injury pretends that the accused caused the injury with the intention to commit the murder irrespective of the fact that the injury was simple in nature.
8. As the accused Javaid is concerned, injuries attributed to him do not find support from the medical evidence. He has not caused any injury on the vital part of the body of the complainant, thus the lower Court has rightly allowed the concession of bail before arrest to him.
9. It is also pertinent to note, that it is the basic duty of the Court to see that under what circumstances the offence was committed. The Court while considering the bail application has to keep in mind the consideration according to the manner and the circumstances of the occurrence.
If some occurrence took place on the spur of moment, due to some other suddenly developed acrimony or due to some brusque attitude of victim or his companion or his relative then the consideration will be different, than in the occurrence which was committed by a planning and the accused attacked on the house of victim with the intention to commit the murder or sat in the way with the intention to commit the murder and caused the intended injuries.
10. In the instant case, the accused Tariq sat in the way and when the complainant was passing through the way then he caused injury with the iron bar on the head of the complainant, thus the offence was committed by Tariq with the planning and this was a way laid case in which the concession of bail before arrest is not proper.
11. The perusal of the order of the trial Court shows, that the said Court passed the order just in a routine. Even the trial Court has not mentioned the facts of the case nor the reasons for the grant of the bail. The order of the trial Court consists of few lines and it does not come within the preview of speaking order. It is the basic duty of the trial Court to pass a speaking order on the bail application. But the trial Court passed the impugned order without considering the merits and demerits of the case.
12. It is also pertinent to note, that the trial Court also failed to observe that the consideration for bail before arrest are different than the consideration for bail after arrest. Only in extraordinary circumstances, a person may be admitted to bail before arrest; where a person apprehends arrest on account of some ulterior motive or some authority is hostile to him. Normally the concession of bail before arrest is very rarely allowed. The power of the bail before arrest may not be exercised, unless the Court is satisfied that the petitioner has probably been involved in a false case and irreparable injury is likely to be caused to the dignity, honour and reputation of the petitioner. If the bail before arrest is allowed in a routine, then it will be a licence and encouragement to the criminals and the vandalism will prevail. In the instant case, as stated above that Tariq inflicted an injury on the vital part of the body of the complainant. Although the injuries are simple in nature yet his case was not the case of bail before arrest. If the concession of bail before arrest is provided to the such like accused then it will be an encouragement to the such accused persons. Thus, the concession of bail before arrest allowed to Tariq accused is recalled and the bail granted to him is hereby cancelled. The trial Court should not get any impression from this judgment while considering the application for bail after arrest.