' Heard.
2. Petitioners along with others, accused of causing injuries to Manzoor Ahmad, the complainant, Abdul Rauf, his brother, and Muhammad Javed his nephew, originally reported against under section 324/148/149, P.P.C., now stand challenged under sections 337-L(ii), 337-F(v) and 337-A, P.P.C. Read with section 148/149 of same Code in a case registered at Police Station Sehja vide F.I.R.
No,97 of 1997, dated 17-8-1997.
3. Pre-arrest bail was declined to the petitioners, who, subsequently, were granted post-arrest bail by learned Magistrate, Khanpur on 3-11-1997. Same, however, was cancelled and concession withdrawn by learned Additional Sessions Judge, Khanpur, vide an order passed on 13-1-1998 on an application moved by the complainant. Hence this move.
4. It has been contended by learned counsel for the petitioners that the injury stately suffered by the complainant and ascribed to Muhammad Sharif petitioner being "Shajjah-i-Khafifah" constitutes a boilable offence; injuries on the person of Abdul Rauf injured P.W., having been found and declared to be "Ghair Jaifah Hashimah" and attributes to Muhammad Arshad petitioner, at the best, make out an offence punishable with imprisonment for a maximum term of five years, and as such, case against both the petitioners does not fall within the ambit of compass of prohibitory clause of section 497, Cr.P.C.; grant of bail after arrest, in such like cases is a rule and refusal an exception; principles governing grant/refusal of pre-arrest bail and post-arrest bail are entirely different, rejection of pre-arrest bail cannot stand in the way of post-arrest bail and that cancellation, sought to be impeached, is in utter and complete derogation of principles laid down by august Superior Courts. Accordingly acceptance of petition has emphatically been prayed.
Reliance has been placed upon Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Yaqoob Khan v. Tahir Mehmood and 6 others 1996 PCr.LJ 1647, Syed Amanullah Shah v. The State and another PLD 1996 SC 241, Lt.-General (Retd.) Fazl-e-Haq v. The State 1989 SCM R 1724 in support of contentions.
5. It has been opposed and resisted vigorously with the assertions that the complainant and injured P.Ws. Suffered not less than 35 injuries at the hands of the petitioners, great highhandedness was shown by them, they are vicariously liable for the same and in any event lower Court was precluded from allowing post-arrest bail to petitioners. Dost Muhammad v. Anwar and 5 others 1993 PCr.LJ 714 has been referred in this context.
6. In terms of medico-legal reports, injuries sustained by the injured, are neither Serious nor dangerous to life. Challan under section 337, P.P.C. Is seemingly in wake thereof. Be that as it may, offences, ascribed to both the petitioners are not punishable to 10 years or more and, anyway, do not fall within prohibitory clause of section 497, Cr.P.C.
7. Guideline in this regard stand propounded in Tariq Bashir and 5 others v. The State PLD 1995 SC 34 by following illuminating observation:-- "It is crystal clear that in boilable offences the grant of bail is a right and not favor, whereas in non- boilable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. Divided non-boilable offences into two categories; i,e, (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-boilable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So, the bail will be declined only in extraordinary and exceptional cases, for example--
(a) where there is likelihood of ascendance of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is previous convict."
8. Undoubtedly the petitioners are previous non-convicts, relate to peasantry, and occurrence erupted from an accidental buffalo fight, motive set up in F.I.R. Neither any extra-ordinary or exceptional cause or circumstances, as envisaged above, for refusal of bail were existing at the time of grant of concession by learned Magistrate nor pointed out, highlighted and hinted at even at this juncture.
9. Indeed, concession of bail can be withdrawn only if sufficient date showing or indicating its "misuse" is brought on record. But there is not an iota or scintilla of evidence or material to suggest such factor, lapse so as to substantiate such plea vaguely taken in application seeking cancellation of bail.
10. Now comes the question as to whether rejection of pre-arrest bail by a superior Court invariably precludes competent Court of lower grade to grant after arrest bail. No hard and fast rule can be laid down on the subject and question of grant/refusal of bail is to be determined judicially having regard to the facts and circumstances of each case. Needless to say that considerations for the grant of bail and for cancellation of same are entirely and altogether different. If, in a case not falling within prohibitory clause of section 497, Cr.P.C. a Court tentatively comes to the conclusion that the case is not of exceptional nature, bail is to be granted to the accused as of right. Fallacy of the argument as to why bail, in instant case, was allowed only few days after rejection of pre-arrest bail is too apparent to dilate for the simple reason that bail is not to be withheld as a measure of punishment. Rather its grant/refusal is governed by the scheme provided in section 497, Cr.P.C.
Which, for purposes of bail, divides the offences in two broad categories, those falling within prohibitory clause and those punishable with imprisonment for less than ten years, and in cases falling in second category, it is discre tionary with the Court to grant or refuse bail and such exercise cannot be interfered with except for very sound, cogent, convincing and sufficient reasons. No exceptional circumstances for cancellation of bail such as likelihood of repetition of offence, ascension of the accused or their callousness were available with the learned Additional Sessions Judge, who, seemingly lost sight of established principles in this context.
11. As revealed even commencement what to speak of conclusion of the trial, is in sight. The petitioners cannot be allowed to incarcerate for an indefinite period in wake thereof even.
12. As a necessary corollary, application is accepted, impugned order of cancellation of bail is hereby set aside with the result that the petitioners shall be released on bail on furnishing fresh bonds in the sum of Rs,30,000 each with one surety each in the like amount to the satisfaction of learned Trial Court.