' Ejaz Qadeer petitioner was one of the eight accused in a case under sections 148, 307/325/324/149, P. P. C. (F. I. R. No, 43 of 1974) registered on 27th January 1974, at Police Station Jaranwala and was admitted to pre-arrest interim bail alongwith his co-accused on the second day after the occurrence by the learned Sessions Judge, Lyallpur, which was confirmed on 2nd February 1974. Ghulam Ahmad complainant moved a petition under section 49(5) of the Criminal Procedure Code for cancellation of this bail and notices were issued to them under registered post cover for 8th of May 1974 when none of them put in appearance nor arranged for any representation on their behalf. Consequently I proceeded ex parte against them and after hearing the counsel of the complainant and the State cancelled their bail with a direction for their arrest including that of Ejaz Qadeer.
2. In the meanwhile Ibrar and some other members of the complainant party are said to have intercepted Ejaz Qadeer petitioner at Nur Bus Stand, Jaranwala on 4th March 1974 and fired shots at him with gun resulting in eighteen simple and grievous injuries in an attempt to take his life. He was thereupon admitted in the hospital and had not yet been arrested in the first case.
3. On coming to know of this order of cancellation of his bail he submitted a petition under section 561-A, Cr. P. C. Praying for the withdrawal of the same on the ground that he had been served with the notice on 8th May 1974 the date fixed for the hearing of the petition under section 497(5), Cr. P.
C. And could not have reached Lahore in time to represent his case, which was thus decided without hearing him.
4. The perusal of the record, however, showed that the petitioner and his co-accused had been served earlier for 8th April 1974 (as tentative date) but the case could not be listed on that date so fresh notices were issued for 8th May 1974 (as actual date) by registered post and the date of its service given under his signatures on the A. D. Receipt in respect of the notice issued in the name of Ejaz Qadeer was 8th of May 1974 which if correct, supported his contention that he was not afforded a reasonable opportunity of being heard in this case.
5. It was also urged that due to the above-mentioned attempt on his life he was still under treatment and incapable of undergoing the rigors of life in the Jail. The petition was therefore, admitted to a regular hearing and the order of his arrest was meanwhile suspended with a direction that the petitioner shall be examined by the Medical Superintendent, Lyallpur, about his present state of health.
6. This medical report has revealed that Ejaz Qadeer petitioner was referred to District Headquarters Hospital, Lyallpur, on 4th March 1974 by Civil Hospital, Jaranwala, and admitted as in- door patient for treatment of his fore-arm wounds which on X-ray disclosed comminuted fracture of left humerus with pellets in left arm and left chest wall, that his arm was put under plaster and he was discharged on 26th March on his condition becoming satisfactory, that his left arm was still under plaster of paris and the hand showed sign of "Radial-Nerve-palsy" in the form of "Writs-draft" for which he was advised further treatment.
This certificate of the Medical Superintendent had thus supported the assertion that he was at present incapable of undergoing the detention in the judicial lock-up. I am therefore, persuaded to review my order in his respect and the provisions of section 369, Cr. P. C. Cannot stand in my way as an order passed under section 497(5), Cr. P. C. Is not a judgment within the meaning of this section, so I can safely invoke the provisions of section 561-A, Cr. P. C. In this case as held in Gulzar Hasan's case (1).
7. As a result of these findings I accept this petition and recalling my order dated 8th May 1974 so far as it concerns Ejaz Qadeer only, direct that he shall not be arrested, provided he can furnish a fresh bond in the sum of Rs, 10,000.00 (Rs, Ten thousand) with one surety in the like amount to the satisfaction of the Assistant Commissioner, Jaranwala.
8. The impugned order shall remain in force in respect of the other accused, who shall be arrested and remanded to judicial custody pending their trial. {{FOOT NOTE}}
(1) PLD 1970 SC 335 {{FOOT NOTE}}