' Khalid Mehmood petitioner has applied under section 497 (5) read with section 439, Cr.P.C.
Praying that the order, dated 4-10-1982 passed by Additional Sessions Judge-II, Sahiwal granting pre-arrest bail to Salah-ud-Din respondent, accused of an offence under section 326, P.P.C. May be re-called and he be committed to custody pending trial against him.
2. Prosecution case in brief is that the petitioner as well as the respondent-accused deal in utensils and their shops are situated opposite to each other in Jinnah Chowk. They are, therefore, rival in business. On the day of occurrence i.e 12-9-1982 at 9.00 a.m. Salah-ud-Din respondent protested to the petitioner as to why he called the customer from his shop. It led to the exchange of abuses.
Upon this the respondent picked up a 'Ranmbah' (Hoe implement) from his shop and having thrown Maqsood P.W. (the brother and business partner of the petitioner) on the ground inflicted a blow on his right thumb as a result of which its first phalange was chopped-off. The neighbouring shop-keepers witnessed the occurrence and separated the parties. Maqsood Ahmad was medically examined the same day at 9.30 a.m by Dr. Fazal Miran Choudhry and the matter was reported to the police next day i,e,13-9-1982 at 12.55 p.m. The police recovered a "buthal" (an Iron basket) from the respondent-accused on 27-9-1982 perhaps as the weapon of offence, because on the very first day of the investigations, one Muhammad Khurshid, a neighbouring shop-keeper Nazir All and Mukhtar Ahmad appeared before the Investigating Officer and stated that the respondent did not cause any injury to Maqsood with a 'Ranmbi. They further stated that Maqsood P.W: and Salah-ud-Din respondent were quarrelling and Maqsood attempted a fist blow on Salah- ud-Din who warded it off by placing a Buthal (Iron Basket) on his head. As a result the hand of Maqsood struck against the Buthal and his thumb got cut.
3. It may be noted that Maqsood (injured P.W.) appeared before the Investigating Officer and got his statement recorded as late as 18-9-1982. The respondents under orders of the Court sought for the re-examination and opinion by Medical Superintendent, Sahiwal if the injury suffered by Maqsood P.W. Can be caused with a 'Ranmbi'. The Medical Superintendent in his report, dated 17- 10-1982 opined that since there was no injury on the adjoining finger, palm and hand, therefore, possibility of its having been caused by a friendly hand cannot be excluded.
4. Learned Additional Sessions Judge granted interim pre-arrest bail to the petitioner on 13-9-1982 which was confirmed on 4-10-1982. Being aggrieved the petitioner-complainant has moved the instant petition praying for the cancellation of bail granted to the respondent.
5. I have heard the learned counsel at length. He challenged the impugned order particularly on two grounds; that the offence being punishable with life imprisonment, the respondent was not entitled to the extraordinary concession of pre-arrest bail; and that the respondent having misused the concession of bail by suborning the prosecution witness has become disentitled to remain on bail. He emphasized that the respondent had obtained second medical opinion about the injury favourable to him, which speaks volumes to prove that the respondent is influential and is tampering with the evidence. Besides, he placed on record copies of two reports, entered in the daily diary of police station, Arifwala on 18-10-1982 and 19-10-1982 at the instance of Khalid an eye- witness and Khalid Mehmood complainant respectively. On the contrary the learned counsel appearing on behalf of the respondent has strenuously resisted this petition and supported the impugned order.
6. On my directions the aforesaid two reports made to the Police, by the prosecution witnesses were enquired into by the Local Police. It appears from the record that affidavit of about 10 persons were filed by each party to prove and disprove the aforesaid reports. The S.H.O. Arifwala after enquiry opined that the complainant party had got entered the aforesaid reports sheerly with a purpose to get the bail of Salah-ud-Din cancelled. Two days later, A.S.I. Mumtaz Hussain opined that the party of the respondent is pressurising the complainant party to withdraw the case against the respondent.
7. I have considered the material on record in the light of arguments advanced by the learned counsel for both the parties and find that there is a delay of about 27 hours in reporting the matter at the Police Station only 4 furlongs away from the scene; that the injured P.W. Appeared and made statement before the Investigating Officer after about a week; that there is a counter-version about the circumstances in which Maqsood P.W. Suffered solitary injury on his thumb put forth on the first day of the Investigation of the case; that under the Court's order another Medical Officer opined that the injury of Maqsood can be caused with a friendly hand; and on the top of it, the reports regarding suborning the witnesses were procured days after filing of this petition, and the two police officials have differed as to their genuineness.
8. I am, therefore, of the view that no case for the cancellation of the bail of the respondent has been made out. The discretion exercised by the learned Additional Sessions Judge in favour of the respondent accused in the peculiar circumstance of the case does not call for interference. The petition is hereby dismissed.
9. Before parting with this order I may observe that the impugned order being sketchy and confused cannot be called a speaking order. The learned Sessions Judge should have clearly stated as to which of contentions of the learned counsel being factually and legally correct found favour with him, instead of remarking in a general way, " In this view of the matter and the contentions raised by the learned counsel for the petitioner, the interim pre-arrest bail already granted to him is hereby confirmed".
10. With this observation the matter stands concluded.