General Principle is Bail not Jail

PLJ 2012 SC (AJ&K) 178
[Appellate Jurisdiction]

Present: Ch. Muhammad Ibrahim Zia, ACJ and Raja Saeed Akram Khan, J.

ABDUL RAZZAQ--Appellant

versus

STATE through Advocate-General, J&K Muzaffarabad & another--Respondents

Crl. Appeal No. 19 of 2011, decided on 7.3.2012.

(On appeal from the order of Shariat Court dated 4.11.2011 in criminal Revision Petition No. 360 of 2011).

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Bail, grant of--Statutory provision--Maximum punishment was 7 years--Ghayr Jaifah--Misconception of facts and wrong application of statutory provision--If alleged offence did not fall within prohibitory clause of S. 497, Cr.P.C. general principle is bail not jail--Under provisions of S. 497, Cr.P.C., punishment of 10 years brings the case within ambit of prohibitory clause and of punishment is below 10 years, it excludes the case from ambit of prohibitory clause--Case of accused did not fall within prohibitory clause of S. 497, Cr.P.C. Accused was behind bars since last more than 5 months but not a single witness had been produced by prosecution before trial Court--Accused was entitled to concession of bail.  [Pp. 181 & 182] A & D

Tentative Assessment--

----Defence version of false implication due to enmity--Tentative assessment of prosecution case shows that despite presence of two majors male family members at time of incident, who were also reported eye witnesses of incident, but they had failed to promptly lodge FIR--Such factor cannot be slightly over looked while taking into consideration defence version of false implication due to enmity conduct of two PWs that despite attack on female member of family, they had not shown any reaction--Such facts make the case of accused one of further inquiry--Such remarks were tentative and would not be treated as such by sub-ordinate Courts.        [P. 181 & 182] B

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Bail, refusal of--Maximum punishment does not fall within prohibitory clause--Administration of criminal justice--Accused, against whom allegation of commission of offences in which the maximum punishment does not fall within prohibitory clause of S. 497, Cr.P.C. is entitled to bail unless extraordinary compelling make the case for refusal of bail. [P. 182] C

Ch. Muhammad Manzoor, Advocate for Appellant.

Raja Ghazanfar Ali, Advocate-General for Respondents.

Date of hearing: 15.2.2012.

Order

Ch. Muhammad Ibrahim Zia, ACJ.--The captioned appeal is addressed against the order of learned Acting Chief Justice, Shariat Court dated 4.11.2011.

2.  Precise summary of facts giving rise to this appeal is that a criminal case against the appellant and some other persons was registered at Police Station Chakkar on 28.9.2011 wherein the complainant stated that he was on the day of incident out of home when the accused, Muhammad Azad, at 5:45 p.m., started abusing his mother and also levelling false allegation of cutting grass from his land. Meanwhile, Muhammad Azad along with Muhammad Saeed, Abdul Razzaq, Muhammad Arfaq sons of Ali Afsar, Munir S/O Said Akbar and Zahid S/O Ali Akbar, with common intention, attacked the complainant's mother while entering in the Courtyard of his house. Muhammad Arfaq was carrying stick in his hand whereas the other accused were carrying stones in their hands. Abdul Razzaq attempted to hit his mother's head by stone but she escaped her head, thus, the stone hit her on right arm which was fractured. The incident was reportedly witnessed by the complainant's father, Mir Afsar, brother, Nadir Iqbal and some other persons. The local police, after completion of investigation, found the appellant and other accused-persons, involved in commission of alleged offences and challan was submitted before the Court of competent jurisdiction under Sections 147/148/149, 452/427 and 337-F (VI) APC.

3.  All the accused, approached the trial Court for bail but the Tehsil Criminal Court Hattian, vide order dated 5.10.2011, refused to grant bail. The accused, after refusal of bail by trial Court, approached the District Criminal Court Hattian Bala for bail. The learned District Criminal Court Hattian Bala, vide order dated 13.10.2011 allowed bail to all the other accused persons except the appellant herein, with the observation that at this stage, he is not entitled for bail because the prosecution evidence connects him with the commission of alleged offences. The appellant challenged the propriety of the order of District Criminal Court Hattian Bala through revision petition before the Shariat Court. The learned Shariat Court, through the impugned order dated 4.11.2011, dismissed the revision petition on the ground that the appellant is involved in non-bailable offences, punishment of which is provided as imprisonment of 10 years. Hence, this appeal is brought before this Court.

4.  Ch. Muhammad Manzoor Advocate, the learned counsel for the appellant, after detailed statement of facts, vehemently argued that the impugned order of the Shariat Court is result of misconception of facts and wrong application of statutory provision. The allegation against the appellant is of causing injury "Ghayr Jaifah" (                        ) which is defined in Section 337-E and punishment for which is provided under Section 337-F (VI). Maximum term of punishment which may extend to 7 years as "Ta'zir" (            ) is provided, whereas the learned Acting Chief Justice, Shariat Court, due to some misconception, while disposing of the revision petition has wrongly reproduced and applied Section 337-A which deals with "Shajjah" (           ). Thus, on this sole ground, the impugned judgment is not maintainable. He further submitted that the prosecution story is doubtful. According to complainant's own statement, his father and major brother who are prosecution witnesses, were also present at home at the time of incident but despite this, FIR has been lodged after delay of more than 23 hours. Whereas the Police Station is located at the Metalled road and in ordinary course, only 1 to 2 hour's time is required to approach the Police Station. The explanation furnished for delay in lodging FIR in the light of prosecution story is not plausible and this sole ground makes the prosecution story doubtful and proves the false implication of the accused. He further contended that all the other accused against whom the allegation of commission of offence under Section 452 APC was levelled in which maximum punishment is also provided as 7 years, have been enlarged on bail. Thus, the appellant also deserves for bail by application of rule of consistency. He further submitted that no independent witness during investigation has appeared. The whole prosecution story is false and a result of personal enmity.

5.  While controverting the arguments of learned counsel for the appellant, Raja Ghazanfar Ali, the learned Advocate-General, forcefully defended the impugned order on the ground that the accused-appellant is nominated in FIR. The Ocular evidence is collected during investigation. The circumstantial evidence, corroborates the prosecution story. Delay in lodging FIR has been satisfactorily explained. The overt act of causing injury which resulted fracture to the arm of old lady, is directly attributed to the appellant. Thus, he has been rightly refused the concession of bail. However, the Advocate-General, frankly conceded on the point that the challan against the appellant is filed for commission of alleged offences under Section 337-F(VI) and not under Section 337-A.

6.  We have paid our utmost attention to respective arguments of the learned counsel for the parties and also gone through the record. The argument of learned counsel for the appellant that according to statutory provision, alleged injury falls under the provision of Section 337-E and F and maximum punishment provided is 7 years, finds support from the statute. The learned Acting Chief Justice Shariat Court, in the impugned order has referred Section 337-A of APC which deals with "Shajjah" (            ), whereas in the instant case, the allegation is of " Ghayr Jaifah" (             ). Thus, we agree with the argument of learned counsel for the appellant that the learned Acting Chief Justice, due to some misconception has referred to Section 337-A, which resulted in drawing incorrect conclusion that maximum punishment for the alleged offences is 10 years. Whereas, correct position is that the prosecution has in its challan specifically mentioned Section 337-F(VI) which provides the following punishment:--

"337-F, Punishment of Ghayr Jaifah.--.......................................

(i)         .......................................

(ii)        .......................................

(iii)       .......................................

(iv)       .......................................

(v)        .......................................

(vi)       Munaqqillah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to seven years as ta'zir."

Thus, it is clear that the punishment provided by law for the alleged offence is not 10 years but it may extend to 7 years as "Ta'zir" (             ). According to celebrated principle of law, if the alleged offence does not fall within prohibitory clause of Section 497, Cr.P.C, the general principle is bail not jail. Under the provisions of Section 497 Cr.P.C, the punishment of 10 years and above brings the case within the ambit of prohibitory clause and if the punishment is below 10 years, it excludes the case from the ambit of prohibitory clause. Thus, the learned counsel for the appellant has succeeded in satisfying the Court that the appellant's case does not fall within the prohibitory clause of Section 497, Cr.P.C.

7.  We have also made tentative assessment of the prosecution evidence and at this stage, we do not like to specifically express our opinion in this regard. However, the tentative assessment of the prosecution case shows that specially despite presence of two major male family members at the time of incident, who are also reportedly eye witnesses of the incident, but they failed to promptly lodge FIR, this factor cannot be slightly overlooked while taking into consideration the defence version of  false  implication  due  to  enmity  and  concocting  an after thought story. Moreover, the conduct of these two prosecution witnesses that despite attack on female member of family, they have not shown any reaction. More than 5 persons according to prosecution version with preplanning and having common intention, raided their house but except the arm fracture of an old lady, no other single bruise has been caused to any other family member, in our opinion are such factors which make the case of the appellant also one of further inquiry. However, our these remarks are tentative and should not be treated as our opinion by the subordinate Courts.

8.  It is almost now settled principle of the administration of criminal justice that the accused, against whom the allegation of commission of offence is in which the maximum punishment does not fall within the prohibitory clause of Section 497, Cr.P.C. is also entitled to bail unless extraordinary compelling circumstances make; the case for refusal of bail. In our estimation, the appellant's case is not of such a nature in which the concession of bail can be refused.

We have also noticed that the challan has been filed in the Court on 4.10.2011. The accused is behind the bars since last more than 5 moths but not a single witness has been produced by the prosecution before the trial Court. Thus, in view of above stated facts and reasons, in our opinion, the appellant is entitled to concession of bail. Therefore, by setting aside the impugned order of Shariat Court dated 4.11.2011, bail is granted to accused-appellant with the condition that if he furnishes personal bond of Rs.100,000/- (One lac) and surety of same amount to the satisfaction of any Magistrate 1st class Hattian Bala, he shall be released immediately if not required in any other case.

(R.A.)  Bail granted