' Maqsood Ali petitioner, with his brother Mahmood Ali, has involvement in a case under section 337-A(ii)/34, P.P.C., registered at Police Station Jatli, District Rawalpindi, vide F.I.R. No,166, dated 17-7- 1993; and has applied for bail. His bail petition had been dismissed on 3-8-1993 by the learned Additional Sessions Judge, Rawalpindi, Ch. Mazhar Hussain, who had, however, granted bail to Mahmood All accused, observing that the latter had landed a "Soti" blow on a non-vital part of the complainant, whereas Maqsood Ali had been responsible for infliction of a hatchet blow on his head, a very vital part of the body.
2. The learned Additional Sessions Judge has given benefit of ambiguities in the F.I.R. Narrative to the prosecution and not to the accused. It has been remarked that there is no mention in the F.I.R.
That the hatchet, which the petitioner was armed with, had been used from the right side and that there is nothing on record to show that the petitioner had not participated in the occurrence. It is to be noted that it was for the prosecution to satisfy the Court that evidence on record was available for showing that Maqsood Ali had taken part in the occurrence and moreover the complainant should have been specific in saying whether the hatchet had been used by Maqsood Ali from its wrong or its right side. Learned counsel for the petitioner maintains that both the injuries, one on head and the other' on left wrist of the injured person, being the result of use of a blunt weapon could well have been caused by one man and not necessarily by two persons.
3. My impression is that had such a formidable weapon, as hatchet, been made use of, from even its wrong side, for infliction of an injury on a hard surface like head, it would have smashed the scalp, or resulted in a fracture at least, but the injury on the head is a simple one, like the one borne on left forearm. Thus, use of a hatchet in the occurrence becomes doubtful.
4. It transpires from the F.I.R. Narrative that the complainant actually B had a cause of grouse against the accused, who had created obstruction in the path leading to his house, and had actually closed it, and they were not opening it despite his demand. It is submitted that thus the background of the occurrence even has an element of doubt or confusion.
5. Maqsood Ali petitioner is an Army employee, and on recommendation of the Medical Board had obtained long leave and come to his village and he could not afford to risk his career by participation in the C occurrence, with no well-defined background and without any serious cause of grievance. It is stated that he continues to be sick, and has suffered detention for a period of about six weeks and has to resume duty, but he is prevented from so doing, although he is innocent. It is urged that even if it may be assumed that he did join his brother Mahmood Ali in the alleged assault, the offence being punishable with five years' imprisonment, and not falling within the ambit of prohibitory clause under section 497, Cr.P.C., and his case being at par with that of his brother, Mahmood Ali, co-accused he cannot be treated as disentitled to the concession of bail, especially when recovery of the weapon of crime has been effected and the investigation has been concluded. It is pointed out that the hatchet claimed by the police to have been produced before it by Maqsood Ali was not stained with blood and thus it would not essentially connect him with the commission of the crime. Reliance is rightly placed on Abdul Salam v. The State 1980 SCMR 142, Khadim Hussain v. The State 1983 SCMR 124 and Syed Saifuddin Shah v. The State 1982 P Cr. L J 792. The contention raised by the learned counsel for the State, that seat of injury being head and the weapon used being hatchet would demonstrate that the petitioner had murderous intentions, has not much of force, in view of what has been stated above. I have carefully considered the rival contentions and I am of the view that the applicant-accused has an entitlement to the concession of bail. He shall be enlarged, on furnishing bail bond in the sum of Rs,15,000, with one surety in the like amount, to the satisfaction of A.C./Duty Magistrate, E Gujar Khan.