2016 P Cr. L J 482
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
ABDUL HALEEM and another ---Petitioners
Versus
The STATE and 2 others ---Respondents
Criminal Revision No.117 of 2015, decided on 2nd November, 2015.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 497(2) & 497(5) ---Bail, cancellation of ---Benefit of doubt ---Scope ---Without availability
of strong, cogent and convincing grounds, bail cannot be cancelled ---Benefit of any doubt arising
out even at bail stage shoul d be termed as question calling for further inquiry and accused
becomes entitled for grant of bail.
(b) Administration of justice ---
----Criminal trial --- Principle ---Each criminal case has its own features and is required to be
decided on its own meri ts independently.
Haji Muhammad Nazir v. The State 2008 SCMR 807 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Fresh bail application ---Scope---Fresh bail application can be moved on fresh
ground at a subsequent stage ---Law of bail does not impose any embargo on filing of successive
bail applications, therefore, order passed on successive bail applications does not amount to
review of earlier order passed o n bail application.
Ali Sheheryar v. The State 2008 SCMR 1448 rel.
(d) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 498--- Bail---Different sentences ---Scope ---For purpose of bail, when alleged
offence for which accused is charged, entails tw o quantum of sentences, the lesser has to be
considered while deciding question of bail ---When offence is punishable with imprisonment or
with fine, at the bail stage the offence should not be presumed as non- bailable because it is
entirely possible that a t final conclusion, if accused is found guilty and court punishes him with
fine only, his incarceration as under trial prisoner would not be justiciable.
(e) Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), S. 337- L---Hurt---Bail, cancellation of ---Bail granted
by Trial Court to accused persons was cancelled by Lower Appellate Court ---Validity ---
According to FIR and medical certificate, complainant only sustained internal injuries and after
medical treatment complainant d id not remain hospitalized ---Injuries attributed to accused were
within the purview of other hurts punishable under S. 337 -L, P.P.C.---Complainant/injured
witness did not disclose that 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 had rendered him unable to follow
ordinary pursuits of life for twenty days or more ---Injuries sustained by complainant were
covered by S. 337- L(2), P.P.C. which was bailable in nature ---Accused persons could not be kept
behind the bars as mere punishment for an offence which was bailable in nature and fell within
the definition of S. 337- L(2), P.P.C.---High Court set aside the order passed by Lower Appellate
Court and restored that of Trial Court --- Petition was allowed in circumstances.
State through Advocate -General N. -W.F.P. v. Zubair and 4 others PLD 1986 SC 173 and
The State v. Rafiq Ahmed Channa 2010 SCMR 580 ref.
Syed Manzoor Shah for Petitioners.
Muhammad Aamir Lehri for Respondent No.2.
Abdul Sattar Durrani, Additional Prosecutor -General for the State.
Date of hearing: 30th October, 2015.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Criminal Revision
Petition is directed against the order dated 15.09.2015 ("impugned or der") passed by the learned
Additional Sessions Judge -II, 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 pres ent 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 absolutel y 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 asid e 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 subs equent 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 an y interference 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
complaina nt 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 wit h 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 e rred 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 S tate (2008
SCMR 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 w ould not amount to review of earlier
order passed on the bail application in view of dictum laid down in Ali Shaheryar v. The State
(2008 SCMR 1448).
However, withdrawal of bail application from one court and re -filing before another court,
or/and the ba il 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.P.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 pr inciple 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 i mprisonment 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 SCMR 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 accu sed 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.
f) The danger of the accused absconding if he is relea sed on bail.
g) The danger of witnesses being tampered with.
h) 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
pursuits of life fo r 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 b ailable 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 th e 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.
MH/1/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.