This is an application under section 497 (5), Cr. P. C. For cancellation of bail of respondents Nos. 1 to 4 granted by the Magistrate on 1-4-1971. The relevant facts of the case are that on the night between the IIth and 12th of March 1971 petitioner Muhammad Amin Shad along with his wife and infant child was sleeping in his house in Nai Abaci Gakhar. At about 12-45 a.m. He beard some noise in the courtyard. It was a moonlitnight. It is further alleged that the electric lamp fitted in the courtyard was also kindling. . The petitioner on opening the door found respon--dents Nos. 1 and 2 standing adjacent to the door. Respondent No. 1 was armed with a hockey stick white respondent No. 2 had a danda in his hand. They ordered the petitioner not to raise any noise otherwise he would be done to death. The respondents then asked the petitioner to hand them over the keys of the box in which ornaments and cash were kept by him. The petitioner replied that he did not have any cash or ornaments in the house. Upon this respondents Nos. 1 and 2 started beating him with their respective weapons. On hearing the cries the petitioner's wife Mst. Nargis also rushed to the courtyard. She raised at alarm upon which both the respondents gave beating to her also with their respective weapons. Respondent No. 1 is further alleged to have pulled out a knife from his dab and caused injury on the head of the petitioner with it. On hearing the alarm Syed Munir Shah Dr. Abdul Rashid and Muhammad Asif Butt P. Ws. Who live in the adjoin in houses got up and shouted that they were coming to the help other petitioner and his wife. On this respondents Nos. 1 and 2 jumped over the wall, and ran away. Respondents Nos. 3 and 4 also succeeded to run, away.
The respondents while running away left their hockey stick danda knife muffler and dhoti on the spot. The P. Ws. Mentioned above reached the spot and identified Muhammad Akram, Allah Rakha and Muhammad Afzal as the assailants running from the place of occurrence. The fourth respondents Najam Alipuri was subsequently identified in the identification parade. Syed Munir Shah lodged the F. I. R. With Police Station Saddar, Wazirabad. A case under section 458, P. P. C. Was registered by the police against the respondents.
2. The respondents were not immediately arrested as they were not available. However they were arrested by the police on different dates. They moved an application for bail before the Magistrate who granted the same and passed the following brief order :- "Raja Khalique Ullah Khan, Advocate for the petitioners P. S. I. For the State are present. Arguments heard. Bail allowed in the sum of Rs. 5,000 with one surety in the like amount."
After the grant of bail the allegation of the complainant is that the respondents misused the concession of bail and threatened the material prosecution witnesses not to depose against them other--wise they were threatened with serious consequences. The present petition for cancellation of bail has been filed `by Muhammad Amin Shah the injured person. In support of the allegation that the respondents after their release on bail are threatening the P. Ws. The complainant has placed on record the affidavits of Syed Munir Shah Mst. Nargis wife of the complainant. Dr. Abdul Rashid and Muhammad Asif Butt. Notice was issued to the respondents as well as to the State on 9-4-1971. Today the respondents are present with their counsel Mr. Rafique Ahmad Bajwa. They have placed on record their own affidavits denying the charges levelled against them by the complainant. It is contended by the learned counsel for the respondents that all the respondents except Muhammad Akram are educated persons and are employed at various places. They are law abiding persons.
3. The main contention of the petitioner is to fold. In the first instance it is contended that according to the medical report Muhammad Amin Shad received 13 injuries while his wife Mst. Nargis received four injuries. Both remained in the hospital for a considerable period. According to him it was a clear case under section 459; P. P. C. Where the punishment is transportation for life or imprisonment for a term which may extend to ten years. It was, therefore, not a fit case for grant of bail by the Magistrate. The second contention of the learned counsel for the petitioner is that in any case in view of the affidavits filed by the eye-witnesses the respondents have misused the concession of bail as they have threatened the P. Ws. With dire consequences if they deposed against them.
4. In reply, the learned counsel for the respondents urged that the Magistrates was justified to grant bail to the accused persons. As regards the affidavits of the P. Ws. It is contended that no positive date and the is given in those affidavits and as such the allegation is vague and void:
5. Malik Muhammad Akbar the learned counsel' appearing for the State supports the petitioner and contends that the bail already granted to the respondents be cancelled. He' relied upon the police report which was submitted before the Magistrate. This report is Annexure 'C' on the file.
6. It is admitted even by the learned counsel for the respon--dents that the order of the Magistrate is to brief and does not contain any reasons. Under Clause (3) of section 497, Cr. P. C. The learned Magistrate was required to indicate his reason, in writing for releasing the accused persons on bail.
I am told that a complete challan has already been submitted in Court- but no evidence has so far been recorded by the trial Court. It is also admitted by the parties that due to the present incident some resolutions were passed by various Educational Institutions at Gakhar resenting the same. No enmity is. Attributed to the eye--witnesses, except Syed Munir Shah. Nargis received large number of injuries on the day of the occurrence. The night was moonlit and the assailants could be identified easily. Three of these assailants are mentioned in the F. I. R. And the fourth was identified in the identification parade. Dr. Abdul Rashid and' Muhammad Asif Butt, apart from the petitioner and his wife have sworn affidavits that after the grant of bail the respondents have misused the concession by extending threats to these witnesses.
7. Since the order of the Magistrate is not a speaking order and after taking into consideration, all the circumstances I, feel that the respondents should not have been granted bail by the, Magistrate at that stage. Without expressing any opinion on merits I cancel the bail granted to the respondents and direct that they should be taken into custody forthwith. However, the Magistrate or the Sessions Judge would be at liberty to consider the question of bail after material eye- witnesses have been examin--ed by the trial Court, who is directed to expedite the hearing of the case.