' This petition has arisen out of case F.I.R. No, 6/95 registered on 15-1-1995 under section 337/324/148/149, P .P. C . At Police Station Faqirwali, District Bahawalnagar for an occurrence of the same day, lodged at the instance of petitioner, Dil Murad. The petitioner seeks cancellation of bail of Ghulam Mustafa, accused/respondent. He was granted bail by the Magistrate Section 30, Haroonabad on 1-3-1995 and the petitioner's petition for cancellation of bail has been dismissed by the learned Additional Sessions Judge-II, Bahawalnagar vide his order, dated 15-8-1995.
2. The facts, in brief, as alleged in the F.I.R. Are that on the day of occurrence at about 5-00 p.m., the complainant and his friend Muhammad Ilyas were filling Killa No,25 of Square No,40 with earth when all of a sudden the accused Muhammad Aslam armed with hatchet, Muhammad Ayyub armed with hatchet, Dilawar armed with Kassi, Muhammad Younas armed with Kassi, Muhammad Ali armed with stick, Ghulam Mustafa (respondent) armed with stick and Mulammad Boota also armed with stick, attacked Muhammad Ilyas. The call of attack was given by Muhammad Ali.
Muhammad Ayub gave hatchet blows to Muhammad Ilyas on head and abdomen. Muhammad Aslam gave a hatchet blow on the lower part of the right leg and Dilawar also gave a blow with his Kassi. Muhammad Younas gave a blow on the back of Muhammad Ilyas with wrong side of Kassi.
The respondent is attributed an injury on nose and just above the right eye of Ilyas with his stick and the others also. Gave stick blows to Muhammad Ilyas. On the petitioner's hue and cry, witnesses Abdul Rashid and Abdul Majeed came to the spot and all of them saved Muhammad Ilyas from the assailants. The motive was alleged to be a previously lodged F.I.R. Against Muhammad Aslam and others.
3. I have heard the learned counsel for the petitioner, the State and the respondent. ,4-A. Learned counsel for the petitioner submits that due to the injury caused by the respondent, there was a fracture on the nose of Muhammad Ilyas and the offence fall under 337-A(iii) as Shajjah-i-Hashimah whereas the Magistrate incorrectly read it as Jurh-Hashimah and the offence attributed to the respondent is punishable with 10 years' R.I. And as such the respondent was not entitled to the concession of bail.
4. Learned counsel for the State has opposed this application for the cancellation of respondent's bail.
5. Learned counsel appearing for the respondent has contended that the District Magistrate ordered on 7-2-1995 for the re-examination of the injuries sustained by Muhammad Ilyas and in spite of the direction, the police failed to get the injured re-examined which shows the mala fides of the police and this fact prevailed with the Courts below amongst others in granting bail to the respondent. Learned counsel further submits that the challah has been submitted and the trial Court has taken cognizance on 25-7-1995 and the case is now at the evidence stage and in these circumstances, learned counsel argues that bail in the normal circumstances should not be cancelled. Reliance is placed on Akmal Masih and others v. Salamat Masih and 4 others 1988 SCM R 918 and Muhammad Ismail v. Muhimmad Rafique and another PLD 1989 SC 585.
6. Admittedly, the challah has been submitted in the Court and the trial is to start shortly and in such circumstances, in Akmal Masih and others' case referred to supra, the honorable Supreme Court declined to recall the order of bail. Furthermore, in Muhammad Ismail's case, referred to above, the Supreme Court discussed in detail the established practice of the superior Courts not to grant or cancel bail when the trial was to commence within a short time and a date had been fixed and it was held by the honorable Supreme Court that it is a practice of the superior Courts that when the case is fixed for hearing, ordinarily the bail applications are not decided on merit and the matter is often left to the discretion of the trial Judge because this practice is directly relatable to the question of prejudice which is likely to be caused to the accused facing the trial and it was held that in such a situation, the cancellation of bail would not be proper.
7. Respectfully following the law laid down by the honorable Supreme Court, at this stage when the trial, in the present case, is likely to commence very shortly, I am not inclined to cancel the bail granted to the respondent. This application is accordingly dismissed.