This is an application for bail after arrest by Sikandar and Hayat who along with Mutalli and Noora are accused of an offence under section 307/34, P. P. C. For making a murderous attack on Ghulam Muhammad complainant at peharwela on 20th June, 1978 in the agri--cultural land of the complainant about two squares from the Abadi Deh Chak No. 184 some 161 miles away from the Police Station, Bhawana, District Jhang.
2. The motive for the offence as stated in the F. I. R. Is that Mutalli co-accused wanted the hand of the sister of Faiz son of Shera but Ghulam Muhammad complainant i.e. The victim of the assault was successful in getting her hand in marriage. It is alleged that on account of the grudge that Mutalli bore against the complainant, the accused waylaid and assaulted him. While Mutalli and Noora co-accused were armed with sotas, Sikandar and Hayat petitioners were armed with hatchets. Mutalli and Noora co-accused were enlarged on bail by the learned Sessions Judge, Jhang by his order dated 17th August, 1978. Sikandar and Hayat petitioners are accused of having attacked the com--plainant with hatchets. The learned counsel for the petitioners is unable to deny that the complainant had received injuries with hatchets and that the medical report supports the prosecution version.
3. The learned counsel for the petitioners contends that although the challan was submitted in July, 1978 before the Assistant Commis--sioner, Chiniot; exercising the powers of Magistrate First Class yet the prosecution has not examined a single witness. He places strong reliance on the case reported as Abdul Ghani v. State (1977 P Cr. L J 571) where the challan was submitted in February, 1976 and the case came up for hearing once in the month of May and twice in the month of June and again in the month of July, 1976 but that case could not proceed because the prose--cution did not produce the accused before .The learned Magistrate. Granting bail in that case the learned Judge observed that in the circum--stances of the case the prosecution could not be absolved of their conduct causing delay in the trial. In the present case on the contrary there is no accusation of like failure on the part of the prosecution to produce the accused resulting in delay in the commencement of trial.
To my mind the present case is clearly distinguishable from the case of Abdul Ghani mentioned above.
4. The learned counsel for the petitioners next relied on Mansha Khan v. State (1977 SCMR 449) to contend that even in cases of grievous hurt punish--able under section 325, P. P. C. With 7 years' R.
I. The offence does not fall within the purview of the prohibition contained in section 497, Cr. P. C.
And therefore bail should not be refused merely because the offence is non-bailable. He further relied on Amir v. State (1973 P Cr. L J 205) to contend that for the purpose of considering the question whether a case falls with in the prohibition contained in subsection (1) of section 497, Cr. P.
C. The Courts -are not supposed to keep in view only the maximum sentence of transportation for life (now life imprisonment) provided in the relevant law. If in a particular case the Court is in a position to come to a conclusion on the date placed before it even at the bail stage that the prosecu--tion case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The Court would then have the jurisdiction to grant or refuse bail in the exercise of its discretion.
The argument by the learned counsel if taken to its logical conclusion would lead to the inference that once a Magistrate takes cognisance of a case covered by prohibitory provision of section 497 (1), Cr. P. C. And does not transmit the same for trial by the Sessions Judge under subsection (2) of section 192, Cr. P. C., the maximum punishment that he would be able to award can in no case exceed his jurisdiction as fixed under Chapter-11 of the Criminal Procedure Code and the Court shall have per force to place every accused in a category falling outside the prohibitory provision of subsection (1) of section 497, Cr. P. C. With the result that in all cases triable by a Magistrate grant of bail would be the rule and withholding thereof an exception.
5. Mr. Tanvir Ahmad Khan, Assistant Advocate-General has, however, vehemently disputed the interpretation sought to be placed by the learned counsel for the petitioners. He maintains that the decision in the case of Amir v. State is clearly distinguishable and the obser--vations by the learned Judge in that case were made in the context of certain observations of the Committing Magistrate. He also asserts that the accused in Amir's case has suffered a grievous injury on a vital part (head) and that two cross cases had been instituted. The other party was on bail and the petitioner in that case had been in custody for at least a year and a half. He maintains that the observations were in the context of the special circumstances of the case and correctly laid down the law that sought to be applied in a case like the one in hand before the learned Judge. He maintains that this could not be considered as a general law for treating every case tried by a Magistrate under section 30 of the Cr. P. C. As falling outside the prohibition. He placed reliance on the judgment of the Supreme Court in Salehon v. State (PLD 1969 SC 267) where the Supreme Court recorded the opinion that the Court may in its discretion grant bail to a person accused ;of a non-bailable offence but if the offence is punishable with death or transportation for life, then the power to grant bail is limited to the conditions laid down in the exception clause of section 497, Cr.
P. C. And the proviso thereto. He has further drawn my attention to Muhammad Ashraf Dar v.
Muhammad Riaz etc. (1977 P Cr. L J 529) where bail before arrest was granted on the footing that the offence with which the accused was charged did not fall within the prohibitory clause but upon subsequent addition of the charge of an offence falling within the prohibitory clause of section 497, Cr. P. C. The bail before arrest granted to the accused was cancelled.
6. Upon considering the facts and circumstances of the case on the subject, I feel that the petitioners before me are alleged to have caused grievous injuries with hatchets and while their co-accused used sotas causing simple injuries were rightly let off on bail, no case has been made out for enlarging the petitioners on bail as reasonable grounds exist for assuming that a case under section 307/34, P. P. C. Was committed by the petitioners for which they ought to be charged.
The question of delay in the commencement of the trial has engaged my attention and after, the submission of the challan in July, 1978 the delay in the commencement of the trial is hardly called for I, therefore, direct that the trial Court should proceed with the trial expeditiously and conclude the same by the end of March, 1979.
7. With these observations the bail application is hereby dismissed.