2026 P Cr. L J 544

2026 P Cr. L J 544

[High Court (AJ&K) (Shariat Appellate Bench)]

Before Chaudhary Khalid Rasheed, J

Sardar MANSHAD HASSRAT and 2 others---Petitioners

Versus

The STATE through Advocate General of Azad Jammu and Kashmir,

Muzaffarabad and 2 others---Respondents

Criminal Revision Petition No. 347 of 2025, decided on 23rd October,

2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Azad Penal Code (XLV of 1860), Ss. 322 & 34---Qatl-bis-

Sabab, common intention---Bail, grant of---Further inquiry

Allegations against the accused petitioners was that due to their

attack, one person lost his life---Perusal of record revealed that

investigating agency after detailed investigation had submitted its

report under S.173, Cr.P.C. in the offences under Ss.322 & 34, A.P.C.

before the Trial Court---Offence under S.322, A.P.C., though was non-

bailable, however, in all the offences where ultimate sentence of

imprisonment has not been provided under the Statute, the bail may

not be declined as the same would amount to a grave injustice

because an accused person cannot be compensated for his said

period of detention rather it tantamounts to awarding

imprisonment before conviction which is not even provided in case

of conviction, hence it further amounts to be a case of double

jeopardy---It was alleged by complainant that from the contents of

FIR, offence under S.302, APC was attracted---No doubt, a Court can

convict an accused person in any offence though not mentioned in

the report submitted under S.173, Cr.P.C. if attracted and proved

from the evidence produced by the prosecution at the conclusion of

the trial but at a bail stage only the tentative assessment of contents

of FIR, statements recorded under S.161, Cr.P.C. and evidence

recorded in shape of material collected by the police has to be

mused---Concession of bail cannot be declined for the reason that

some other offence which is not mentioned in the challan is also

attracted rather it is beyond the jurisdictional competence of the

Court at bail stage---Bail petition was allowed, in circumstances.

2023 PCr.LJ 1401 and PLD 1983 AJ & K Shariat Court 4 rel.

Muhammad Waheed Arif for Petitioner.

Sardar M.R. Khan for the Complainant. Syed Faisal Gillani, A.A.G for the State.

Date of hearing: 20th October, 2025.

JUDGMENT

CHAUDHARY KHALID RASHEED, J.---

FOREWORD

The captioned revision petition has been preferred against the

judgment passed by learned District Court of Criminal Jurisdiction

Bagh dated 08.08. 2025, whereby post arrest bail application of the

accused/petitioners has been rejected.

Precise facts forming background of the instant petition are, on the

complaint of Muhammad Javaid Khan, FIR No.93/2025 was registered

at Police Station City Bagh in offences under sections 322/34-A.P.C. on

14.04.2025 as per the allegation against the accused petitioners, they

launched an attack on Muhammad Jahanzeb and his companions

which resulted into the death of Muhammad Jahanzeb. The police

after investigation submitted challan before the trial Court in the

offences under sections 322/34 A.P.C. After arrest the accused

petitioners filed an application before the District Criminal Court Bagh

for their release on bail the Court after hearing arguments pro contra

rejected the application vide its impugned judgment dated 08.08.2025,

hence, the captioned revision petition.

STANCE OF THE PETITIONERS:

The learned counsel for the petitioners vehemently argued that the

accused petitioners as per report under section 173 Cr.P.C. are alleged

in the offence under section 322 A.P.C., hence, even if ultimately the

case of the prosecution is proved only the sentence of Diyat can be

awarded to the accused, thus, are entitled to get the concession of bail

but the Court below miserably skipped to ponder the relevant law,

thus requested to honour the instant revision petition.

REFUTATION OF THE RESPONDENTS:

The learned counsel for the complainant averred with vehemence

that though challan has been presented in the offence under section

302 A.P.C., however, keeping in view of the facts of the instant case and

allegation levelled in the FIR the offence under section 322 A.P.C. is

apparently attracted, hence, the Court below accurately send away the

bail application.

The learned AAG also opposed the maintainability of the revision

petition by contending that the petitioners are fully linked with the offence with which they have been charged, hence are not entitled to

be enlarged on bail.

I have heard the learned counsel for the parties, gone through the

record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEVANT LAW:

A perusal of record reveals that investigating agency after detailed

investigation has submitted its report under section 173 Cr.P.C.in the

offences under sections 322 and 34 A.P.C. before the trial Court. The

offence under section 322 APC though is non-bailable however, the

superior Courts have held in plethora of judgments that in all the

offences where ultimate sentence of imprisonment has not been

provided under the Statute, the bail may not be declined as the same

would amount to a grave injustice because an accused person cannot

be compensated for his said period of detention rather it tantamount

to award imprisonment before conviction which is not even provided

in case of conviction, hence further amounts to be a case of double

jeopardy. Reliance in this regard may be placed on 2023 PCr.LJ 1401,

wherein at page 1403 it has been observed as under:-

"6. Keeping in view the above legal position, it can safely be held

that if an accused charged under section 322-P.P.C, upon

pleading his guilty or after his trial, is convicted accordingly, he

can only be kept in confinement in case he commits default in

the payment of Diyat amount and the provision of section 382-B

Cr.P.C. does not apply in such like case, which ordains that

"where a Court decides to pass a sentence of imprisonment on

an accused for an offence, it shall take into consideration the

period, if any, during which such accused was detained in

custody for such offence." As such, incarceration of the

petitioner during trial would amount to punishment before his

conviction which is against the mandate of law vis- -vis

applicability of section 382-B Cr.P.C. settled by the Honourable

Supreme Court of Pakistan in the dictum supra. Moreover, it is

settled law that an offence which does not entail the punishment

of imprisonment the accused shall be entitled to bail as of right

because if he is refused bail the period as under trial prisoner

would amount to a case of double jeopardy.

7. Keeping in view the above legal position, it can safely be held that

incarceration of the petitioner as under trial prisoner is not

justified as the same would not serve any useful purpose and

even in case of his conviction such period cannot compensated

in any manner. Therefore by allowing this petition, the

petitioner is admitted to post-arrest bail subject to his furnishing of bail bond in the sum of Rs.1,00,000/- (Rupees one lac only)

with two sureties in the like amount to the satisfaction of the

learned of Illaqa/Duty Judicial Magistrate, who shall ensure that

the sureties are local, liable and men of means."

Same like observations have been recorded by Shariat Court of Azad

Kashmir in PLD 1983 AJ&K Shariat Court 4, wherein it has been

observed as under:

"The applicant is a convict for the offences under sections 11 and 13

of the "Islaami Tazeerati" Act, 1974 who was sentenced to 'Diyyat'

amounting to Rs.12,83,040/- by the District Criminal Court,

Mirpur. The 'Diyyat' is to be paid under law within a period of

three years from the date of order of sentence. The convict was

held liable to pay 'Diyyat' as a whole under sections 11 and 13 of

the Islami Tazeerati Act and in default of payment of 'Diyyat' he

was ordered to be imprisoned till the payment is made thereof by

him. The trial Court did not care to apprehend sections 11 and 13

of the Islaami Tazeerati Act under which he was convicted and

sentenced by it. When an accused is found guilty of the offences

under sections 11 and 13 of the Islaami Tazeerati Act he is to be

sentenced to 'Diyyat' payable by 'Aaqelah' in three installments to

be reasonably apportioned.

There is no provision in law in force that a period during which the

'Diyyat' is to be paid by 'Aaqelah' under law, the convict is to be

imprisoned. No apportionment of the amount of 'Diyyat' in form

of installments was made by the convicting Court and at the

instant stage, there is no question of default of payment which is

to be made within a period of three years under law.

Obliviously the imprisonment of applicant/appellant is not

warranted by law. That being so, this application for bail is

accepted and the convict is enlarged on bail in the sum of

Rs.5,00,000/- with three sureties each in the like amount who

shall be liable to pay the same jointly as well as severally, to the

satisfaction of the Additional District Magistrate, Mirpur. A copy

of this order shall be sent to the Additional District Magistrate,

Mirpur for information etc. of the convict so as to enable him to

furnish security and personal bonds as ordered by this Court."

As far as the argument advanced by the learned counsel for

complainant that from the contents of FIR offence under section 302

APC is attracted, is concerned, no doubt, a Court can convict an

accused person in any offence though not mentioned in the report

submitted under section 173 Cr.P.C. if attracted and proved from the

evidence produced by the prosecution at the conclusion of the trial but at a bail stage only the tentative assessment of contents of FIR,

statements recorded under section 161 Cr.P.C. and evidence recorded

in shape of material collected by the police has to be mused however

the concession of bail cannot be declined for the reason that some

other offence which is not mentioned in the challan is also attracted

rather it is beyond the jurisdictional competence of the Court at bail

stage.

DISPOSAL:

The sum and substance of the above discussion is, the captioned

revision petition is hereby accepted and it is ordered that the accused

petitioners shall be released on bail forthwith provided they furnish

bail bonds in the sum of Rs.50,00,000/- each consist of two local

sureties as well as personal bonds in the like amount to the

satisfaction of any Judicial Magistrate Bagh, if not required in any

other case.

JK/56/AJK(H.C) Revision allowed.