' Petitioner Zafar Iqbal through the instant petition has sought for cancellation of post-arrest bail extended to respondent No,1 Imtiaz Ahmad vide the order, dated 28-5-2004 recorded by Ch..
Muhammad Aslam, learned Sessions Judge, Mandi Baha-ud-Din in case F.I.R. No,195, dated 9-4- 2004 under section 337-A(i)/(ii)/337-L(ii)/34, P.P.C. Registered with Police Station Sadar, Mandi Baha-ud-Din.
2. Briefly the facts relevant for the disposal of the instant petition are that the said case has been registered on the written application of the petitioner. He has alleged therein that on 4-4-2004 at about 2-00 p.m. He along with his brother was sitting in his shop. Imtiaz Ahmad armed with hatchet, Shahid Iqbal with Sota and Mst. Sardaran Bibi with Sota came there. Imtiaz Ahmad said that Noor Ahmad be taught lesson for abusing them. He with the same inflicted hatchet blow on the left side of the head of Noor Ahmad. Shahid Iqbal inflicted Sota blow on the lower side of his head and then Mst. Sardaran gave Sota blow on his shoulder, who fell down and they thereafter gave him kick and fist blows. On noise, he and Muhammad Hussain reached there and rescued Noor Ahmad. The accused while leaving took away an amount of Rs,7,400 from the safe there and also extended them threat that they will set their shop at fire in case they took any action against them.
3. The respondent No,1 was arrested in the case. He applied for post-arrest bail. The same was extended to him vide the afore-referred order of the learned Sessions Judge, Mandi Baha-ud-Din.
4. The petitioner feeling himself aggrieved of the same has come to this Court to seek cancellation of the bail.
5. It has been argued on his behalf that the reasons recorded by the learned ,Sessions Judge for grant of the relief to him are fanciful and unsound; that bail in offences not falling within the prohibitory clause of section 497(1), Cr.P.C. Cannot be granted as a matter of course and even can be refused when the accused otherwise may not be found to be entitled to same and in this regard reference has been made to the case of Afzal Ahmad v. The State 2003 SCM R 573; that there is reasonable explanation of delay in lodging the F.I.R. Because of the fact that the medical examination of the injured was conducted on the next day of the incident at about 6-00 p.m. And the doctor has kept his injury No,1 under observation and on the declaration of the result of that injury the case was registered by the police and so he was not right to say that there is an inordinate delay in the same; and that in view of the specific role of infliction of hatchet blow at the head of the injured the respondent No,1 is prima facie connected with the alleged offence; that merely due to the fact that his brother and mother had been declared to be innocent in the investigation he was not entitled to bail particularly when he has been found by the police to be guilty; that the weapon of offence stood recovered from him and the learned Session Judge has erroneously mentioned that weapon of offence was not recovered from him; and that at such an early stage of the case it was not appropriate to have extended him the relief and so the exercise of discretion on the part of the learned Sessions Judge in the matter was not at all in accord with the settled principles governing the question of grant or otherwise of bail.
6. I have carefully considered the submissions made on his behalf and gone into the copies of the documents annexed to the petition.
7. I find that the learned Sessions Judge while extending the relief of bail to the respondent No,1 was influenced mainly by the fact that there is five days' delay in lodging the F.I.R. Without any explanation, that his brother and mother have been declared innocent by the A police, and that no weapon of offence was recovered from him. All these facts have led him to hold that his case calls for further inquiry into his guilt and that the offence under section 337-(A-I), P.P.C. Is punishable with Daman and imprisonment for two years and the one under section 337-A(ii), P.P.C. To five years imprisonment and under section 337-L(ii), P.P.C. To Daman and imprisonment for two years and so is bailable.
8. On going through the F.I.R. And the documents annexed to the petition, it has appeared that the alleged incident had taken place on 4-4-2004 at about 2-00 p.m. The medical examination of the injured was conducted at 6-00 p.m. On the next day. It, thus, with the delay of about 28 hours. No doubt the doctor has kept the injury No,1 of the injured under observation and the result regarding the same was declared on 8-4-2004 but still the report to the police was made on the next day.
Anyway, no further discussion is needed on this aspect of the matter lest it may be prejudicial to either of the parties at trial. However, suffice it would be to say here that five days delay in lodging the F.I.R. Is reflective from the F.I.R. Itself. This delay has created doubt qua the truth in the story contained therein.
9. There is also no denying the fact that the real brother and the mother of the petitioner have been found innocent by the police. They were also assigned one injury each specifically to the injured.
The finding of their innocence has given rise to the element of doubt in respect of the story contained in the F.I.R. It is settled proposition in law that benefit of doubt, even at bail stage, is to be given to accused.
10. Besides than this, it has also been found that the petitioner had remained in the jail and the alleged offences against him do not fall within prohibitory clause of section 497(1), Cr.P.C.
11. In the case of Afzal Ahmad v. The State 2003 SCM R 573, though it has been held that grant- of bail to an accused in offences not falling within the prohibitory clause is not always necessary but the case of the respondent No,1 has been found to be one of further inquiry into his guilt. It is needless to mention here that when this may be the position, then the accused is entitled to bail as of right and not of grace. In the case of Piaro v. The State and another 1984 PCr.LJ 149 (Karachi), it has been held that when an accused has been granted bail with an observation of scope of further inquiry into his guilt, the bail granted to him cannot be cancelled unless such an inquiry has been made. In these peculiar facts and circumstances of the case, the above case cited law by the side of the petitioner with all respect is not aptly applicable to his case.
12. I find that the reasons advanced by the learned Sessions Judge in the matter are not only sound but also recognized in law.
13. It may be mentioned here with concern that although the learned counsel for the petitioner did not urge at all any misuse of concession of bail on the part of the respondent No,1, but it has been mentioned in the instant petition that he after his release on bail has extended him threats of life.
14. I have also found that such a ground has been mentioned in para. No, "f" of the application. He has appended with the instant petition, the copy of an application made by him to the S.H.O.
Concerned containing similar allegation. He but has not appended any proof to show that the police in fact had proceeded on his application. There is also no affidavit with the instant petition of any witness to show that such an incident having take place. Hence, this seems to be a mere device to get the bail of the respondent No,1 cancelled.
15. In these circumstances, I have not been convinced that there exists a case for cancellation of bail to him. The petition, therefore, is dismissed in limine.
16. It is, however, made clear here that any observation made above shall not influence the mind of the trial Court.