2022 S C M R 264
[Supreme Court of Pakistan]
Present: Ijaz ul Ahsan, Sajjad Ali Shah and Sayyed Mazahar Ali
Akbar Naqvi, JJ
DILDAR AHMAD---Petitioner
Versus
The STATE and others---Respondents
Criminal Petition No. 145-L of 2021, decided on 4th November, 2021.
(On appeal against the order dated 20.01.2021 passed by the Lahore
High Court, Lahore in Crl. Misc. No. 33500-B of 2020)
Criminal Procedure Code (V of 1898)---
----Ss. 498 & 497(2)---Constitution of Pakistan, Art. 185(3)---Penal Code
(XLV of 1860), Ss. 34 & 337-F(v)---Common intention, ghayr-jaifah-
hashimah---Ad interim pre-arrest bail, confirmation of---Further
inquiry---Possibility of fabrication of injury---Injuries sustained by
accused suppressed---As per the contents of the crime report, the
allegation levelled against the accused was that he caused `kassi' blow
on the right arm of the complainant due to which it got fractured/
broken---Complainant was firstly medically examined by a Medical
Officer of Rural Health Clinic and then was re examined by the District
Standing Medical Board, which clearly opined that considering the
nature and locale of injury, the possibility of fabrication could not be
ruled out---Although, the case of the complainant was re-examined by
the Provincial Standing Medical Board for the third time but the
complainant had not appeared before it for his examination for the
third time---Furthermore the accused claimed that in-fact the
complainant party was the aggressor and during the occurrence, the
accused had also received as many as five injuries on different parts of
his body, which were detailed in the medico legal report available on
the paper book---Prima facie the injuries sustained by the accused
were suppressed--In these circumstances, a prima facie doubt had
arisen qua the authenticity of the prosecution's case---Case of the
accused squarely fell within the purview of S. 497(2), Cr.P.C. entitling
him for further inquiry into his guilt---Petition for leave to appeal was
converted into appeal and allowed, and ad interim pre-arrest bail
granted to accused was confirmed.
Samiullah v. Laiqzada 2020 SCMR 1115 and Muhammad Faisal v. The
State 2020 SCMR 971 ref.
Mian Muhammad Saeed, Advocate Supreme Court for Petitioner
along with Petitioner in person.
Ch. Muhammad Sarwar Sidhu, Additional P.G. for the State.
Mansoor-ur-Rehman, Advocate Supreme Court for Respondent No.
2.
Date of hearing: 4th November, 2021.
ORDER
SAYYED 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 20.01.2021
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.
336/2020 under sections 337-F(v)/34. P.P.C. at Police Station Satrah,
District Sialkot, in the interest of safe administration of criminal
justice.
2. As per the contents of the crime report, on the fateful day and
time, the petitioner was digging pits in the state land and mixing them
in his own land. When the complainant forbade the petitioner from
doing so, the petitioner got infuriated and called his co-accused and
upon their arrival he gave 'kassi' blow on the right arm of the
complainant, due to which his arm was 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
connivance of the complainant with local police. Contends that infact
the complainant party was the aggressor and in the incident five
injuries were caused to the petitioner, which were suppressed, and as
the complainant is a Police constable, the cross-version of the
petitioner could not be registered. Contends that the petitioner was
also got medically examined and the factum of receiving injuries on
his person has been proved. Contends that the injured-complainant
was re-examined by a Medical Board, which has found that so far as
the injury on his person is concerned, the possibility of fabrication
cannot be ruled out. Contends that the offence does not fall within the
prohibitory clause of section 497, Cr.P.C. and the challan has already
been submitted before the Trial Court, therefore, the petitioner
deserves the concession of pre-arrest bail.
4. On the other hand, learned Law Officer assisted by the learned
counsel for the complainant defended the impugned order whereby
pre-arrest bail was declined to the petitioner. They contended that the
report of the Medical Board dated 05.08.2020 was challenged before
the Provincial Standing Medical Board, Lahore, and it was found that
there is no possibility of fabrication so far as the injury ascribed to the
petitioner is concerned, therefore, the petitioner 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.
As per the contents of the crime report, the allegation levelled
against the petitioner is that he caused 'kassi' blow on the right arm of
the complainant due to which it got fractured/broken. The
complainant was firstly medically examined on 29.06.2020 by a
Medical Officer of Rural Health Clinic, Satrah, and then was re-
examined by the District Standing Medical Board on 05.08.2020, which
clearly opined that considering the nature and locale of injury, the
possibility of fabrication cannot be ruled out. Although, the case of the
complainant was re-examined by the Provincial Standing Medical
Board for the third time but on our specific query, we have been
informed that the complainant had not appeared before it for his
examination for the third time. It is the case of the petitioner that in-
fact the complainant party was the aggressor and during the
occurrence, the petitioner has also received as many as five injuries on
different parts of his body, which are detailed in the medico legal
report available at page 30 of the paper book. Prima facie the injuries
sustained by the petitioner were suppressed. In these circumstances, a
prima facie doubt has arisen qua the authenticity of the prosecution's
case. It has been held by the superior courts 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). In these
circumstances, it seems more appropriate and justiciable to decide the
truthfulness of the accusation by the Trial Court after recording of
evidence. The challan has been submitted before the Trial Court and
the offence does not fall within the prohibitory clause of section 497,
Cr.P.C. Keeping in view all the facts and circumstances, the case of the
petitioner squarely falls within the purview of section 497(2) Cr.P.C.
entitling for further inquiry into his guilt.
6. For what has been discussed above, we convert this petition into
appeal, allow it, set aside the impugned order dated 20.01.2021 and
confirm the ad interim pre-arrest bail granted to the petitioner by this
Court vide order dated 04.10.2021.
MWA/D-4/SC Bail confirmed.
;
