Fatal injury bail rejected by Supreme Court 2023 SCMR 1068
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| Fatal injury bail rejected by Supreme Court . |
دیگر ملزمان کے رول ملزم سے مختلف تھے۔اور ملزم پر شدید چوٹیں پہنچانے کاالزام تھا۔ضمانت مسترد
سپریم کورٹ آف پاکستان کے کرمنل پٹیشن نمبر 207 میں 2023 کے فیصلے میں پشاور ہائی کورٹ کے بعد از گرفتاری ضمانت کے فیصلے کے خلاف اپیل کی اجازت کی درخواست سے متعلق ہے۔ درخواست گزار بختی رحمان نے شکایت کنندہ کو شدید زخمی کرنے کا الزام عائد کرتے ہوئے ضمانت کی درخواست کی۔ سپریم کورٹ نے زخمیوں کی نوعیت اور ملزمان کے کردار پر توجہ مرکوز کرتے ہوئے کیس کا جائزہ لیا۔
عدالت نے اس درخواست کو مسترد کرتے ہوئے کہا کہ جب کہ دیگر شریک ملزمان کو ضمانت دی گئی تھی، ان کے کردار درخواست گزار کے کردار سے نمایاں طور پر مختلف تھے، جن پر شدید چوٹیں پہنچانے کا الزام تھا۔ عدالت نے اس بات پر زور دیا کہ مستقل مزاجی کا اصول صرف اس صورت میں لاگو ہوتا ہے جب کردار اور حالات ایک جیسے ہوں۔ اہم چوٹ پہنچانے میں درخواست گزار کے کردار نے اس کے کیس کو ان شریک ملزمان سے ممتاز کیا جنہیں ضمانت دی گئی تھی۔
عدالت نے پایا کہ درخواست گزار کے خلاف شواہد ضمانت سے انکار کا جواز پیش کرنے کے لیے کافی تھے، مبینہ زخموں کی شدت اور سیکشن 337-A(ii)، 337-A(iii) اور 337-F(i) کے تحت الزامات کو دیکھتے ہوئے پاکستان پینل کوڈ، جو کافی سزائیں تجویز کرتا ہے۔ عدالت نے نتیجہ اخذ کیا کہ درخواست گزار ضمانت کے معیار پر پورا نہیں اترتا اور مقدمے کی سماعت کسی بھی فریق کے ساتھ تعصب کے بغیر آگے بڑھنی چاہیے۔
Must read Judgement
Crl.P.No.207/2023
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MUHAMMAD ALI MAZHAR
MRS. JUSTICE AYESHA A. MALIK
CRIMINAL PETITION NO.207 OF 2023
(Against the judgment dated 23.01.2023
passed by the Peshawar High Court,
Mingora Bench (Dar-ul-Qaza), Swat in
Cr.M.B.A.No.22-M/2023)
Bakhti Rahman …Petitioner
Versus
The State and another …Respondents
For the Petitioner:
Mr. Asghar Ali, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Sardar Ali Raza, Addl. A.G.
Date of Hearing:
15.03.2023
Judgment
MUHAMMAD ALI MAZHAR, J. This Criminal Petition for leave to
appeal is directed against the judgment dated 23.01.2022 passed
by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat
in Cr.M.B.A.No.22-M/2023, whereby the petitioner’s application
for post-arrest bail in FIR No.291/2022 dated 10.12.2022 lodged
under Sections 337-A(ii), 337-A(iii), 337-F(i), and 34 of the
Pakistan Penal Code, 1860 (“PPC”) at Police Station Karora,
District Shangla was dismissed.
2. The gist of the FIR divulges the allegations against the
petitioner that, on 10.12.2022, the complainant, in an injured
condition, reported to the police that after offering Maghrib prayer
he closed his shop and went home. The accused persons
were present at the place of occurrence and accused Bakhti
Rahman (petitioner), hit him on his head with a sharp object and
caused injury on the left side of his forehead, while the remaining
Crl.P.No.207/2023
accused persons also gave him stick blows as a result of which the
complainant suffered injuries on his left arm, right knee and back.
The petitioner filed the bail application which was dismissed by
Judicial Magistrate, Chakesar/MOD Shangla, vide Order dated
02.01.2023; then he moved an application for bail before the
Additional Sessions Judge, Shangla which was dismissed vide
Order dated 06.01.2023, and thereafter the petitioner filed a bail
application in the Peshawar High Court, Mingora Bench (Dar-ulQaza), Swat which was also dismissed vide the impugned
judgment dated 23.01.2023.
3. The learned counsel for the petitioner argued that the other coaccused persons who are nominated in the FIR have been
enlarged on bail by the High Court through the same impugned
judgment, hence he pleaded that the rule of consistency be
adhered to and that the same treatment be afforded to the
petitioner. It was further contended that the alleged occurrence
took place in the night, but neither any source of light is
mentioned in the FIR, nor any motive to injure the complainant,
hence the case requires further inquiry.
4. The learned Additional Advocate General opposed the grant of
bail on the ground that the specific role of causing fatal injury has
been attributed to the petitioner and the role of co-accused who
have been granted bail is different, hence the rule of consistency
does not apply in the present facts and circumstances of the case.
5. Heard the arguments. The FIR was lodged on the basis of daily
diary report No. 23 dated 10.12.2022. All the accused persons
have been assigned their roles in the FIR but the effective role has
been attributed to the accused Bakhti Rahman, hence his role
was rightly found distinguishable from the role assigned to the
other co-accused. According to the emergency ward report, the
complainant was lying on the bed in an injured condition, thus no
inordinate or unexplained delay can be alleged. The FIR as well as
the site plan and the medico legal report fully support the
prosecution case. The police recovered blood from the spot along
Crl.P.No.207/2023
with blood stained garments of the complainant and also
recovered two iron rods as the weapons of the offence. According
to the medical report, the C.T. Scan (Brain Study) shows the
evidence of fracture of frontal bone from the left side and the bone
was also exposed. The frontal bone is a part of the boney structure
that forms the anterior and superior portions and also one of the
thickest bones of the skull.
6. According to Section 337, PPC, six genres of “Shajjah” (injuries)
have been depicted such as (a) Shajjah-i-Khafifah (خفیفہ شجہ); (b)
Shajjah-i-mudihah (موضعہ شجہ); (c) Shajjah-i-hashimah (ھاشمیہ شجہ); (d)
Shajjah-i-munaqillah (منعقلہ شجہ); (e) Shajjah-i-ammah (آمہ شجہ); and (i)
Shajjah-i-damighah (دامیہ شجہ). In the case in hand the petitioner
has been charged with Section 337-A(ii) and 337-A(iii) i.e.
“Shajjah-i-mudihah” which defines the injury of exposing any bone
of the victim without causing fracture and “Shajjah-i-hashimah”
which denotes the fracturing of bone of the victim without
dislocating it. The punishment of Section 337-A(ii) is arsh which
shall be five per cent of the diyat and may also be punished with
imprisonment of either description for a term which may extend to
five years as ta’zir, whereas the injury described in Section 337-
A(iii) is set to be Shajjah-i-hashmiah and the person accused of
causing such injury is liable to arsh (compensation) which shall
be ten percent of the diyat and may also be punished with
imprisonment of either description for a term which may extend to
10 years as ta’zir which falls within the prohibitory clause of
Section 497 of the Criminal Code of Procedure, 1898 wherein it is
clearly provided that a person shall not be released on bail if there
appears to be reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life
or imprisonment of 10 years. Whereas another charge in the FIR
is related to the offence under Section 337-F(i) which relates to the
punishment of “Ghayr-jaifah” which means an injury in which the
skin is ruptured and bleeding occurred and a person causing
such injury under this clause is liable to daman (amount of
compensation determined by the Court) and may also be punished
Crl.P.No.207/2023
with imprisonment of either description for a term which may
extend to one year as ta’zir.
7. At the bail stage, the Court has to tentatively form an opinion
by assessing the evidence available on record without going into
merits of the case. The deeper appreciation of the evidence cannot
be gone into and it is only to be seen whether the accused is prima
facie connected with the commission of offence or not. In order to
ascertain whether reasonable grounds exist or not the Courts not
only have to look at the material placed before them by the
prosecution, but see whether some tangible evidence is available
against the accused or not to infer guilt. An essential prerequisite
for grant of bail by virtue of sub-Section 2 of Section 497 is that
the Court must be satisfied on the basis of opinion expressed by
the Police or the material placed before it that there are
reasonable grounds to believe that the accused is not guilty of an
offence punishable with death or imprisonment for life or
imprisonment of 10 years. The mere possibility of further inquiry
exists almost in every criminal case. The Court is required to
consider overwhelming evidence on record to connect the accused
with the commission of the offence and if the answer is in the
affirmative he is not entitled to grant of bail.
8. So far as the rule of consistency or parity for considering the
grant of bail to the petitioner is concerned, in the present facts
and circumstances of the case we cannot lose sight of the fact
that the roles of the co-accused who were granted bail are
distinguishable to the role assigned to the petitioner who caused
the fatal injury to the complainant. The doctrine of parity or rule
of consistency in a criminal case elucidates that if the case of the
accused is analogous in all respects to that of the co-accused then
the benefit or advantage extended to one accused should also be
extended to the co-accused on the philosophy that the “like cases
should be treated alike”. The concept of equal justice requires the
appropriate comparability of roles and overt act attributed to the
co-offenders, but in case of difference or disparity in the roles due
Crl.P.No.207/2023
allowance cannot be extended to the co-offenders on the
perspicacity that different sentences may reflect different degrees
of culpability and or different circumstances.
9. In the wake of the above discussion, the Criminal Petition is
dismissed and leave to appeal is refused. The findings and
observations made herein are tentative in nature and shall not
prejudice the case of either party during the trial.
Judge
Judge