The petitioner and seven others were involved in case F.I.R. No.79 dated 2-2-2001 under sections 452, 337-A(iii), 337-F(v) and 148/149, P.P.C. (after medico-legal examination sections 337-A(iii) and 337-F(v), P.P.C. Were added) registered at Police Station Saddar, D.G. Khan.
2. The petitioner was arrested on 2-2-2001. He was allowed bail by the learned Judicial Magistrate on 20-2-2001. An application for cancellation of bail was moved against him and the learned Additional Sessions Judge, D.G. Khan, cancelled the bail granted to the petitioner vide order dated 10-4-2001.
3 The precise allegation against the petitioner is that he caused injury on the person of Khadim Hussain, P.W., fracturing his nasal bone and the same falls within the definition of section 337-A(iii), P.P.C. Shajjah-I---Hashimah, punishable up to 10 years as Tazir.
4. The learned counsel for the petitioner states that Ahmad Bakhsh, petitioner, is an old man. He was born in the year 1933 and now he is more than 68 years. This by itself was a good ground for bail and the learned Additional Sessions Judge, was not justified in canceling the concession of bail granted to the petitioner. He placed reliance on the case of Abdul Jabbar v. The State 1997 SCMR 5(sic). He further states that the order of the learned Magistrate was neither perverse nor arbitrary, therefore, the bail granted to the petitioner has been wrongly cancelled.
5. Conversely the learned counsel for the complainant endorsed by the learned counsel for the State vehemently argues that mere old-age was never a ground for bail and the said concession is to be granted to only sick and infirm persons. He placing reliance on Hakeem A.I and three others v. The State 1979 SCM R 114 states that sickness and infirmity cannot be ascertained in view of the age, it depends on the physical condition of a person, which qualifies him being a sick or infirm person. He further states that the petitioner was responsible for causing fracture of the nasal bone of Khadim Hussain, P.W. Punishable up to 10 years and the learned Additional Sessions Judge has rightly cancelled the bail of the petitioner
6. I have heard the learned counsel for the parties and perused the record. The learned Additional Sessions Judge had cancelled the bail for two reasons. First was the mere old-age, which was no ground for the grant of bail and the second ground was that bail had been granted within 19 days.
The second reason advanced by the learned Additional Sessions Judge is contrary to the law and precedents laid down by the Superior Courts of this country. It is held that the bail is no substitute for punishment and cannot be withheld as a punishment. Similarly if the case of the petitioner falls within the ambit of further inquiry then bail was to be granted without considering the time spent in Jail. Reference is made to PLD 1989 SC 585 and PLD 1972 SC 81. However, the learned Additional Sessions Judge has totally ignored the grounds on which the bail was granted to the petitioner i.e. The petitioner was an old man of 70 years and at the time of occurrence he was empty-handed.
Suffice it to say that an empty-handed accused cannot be equated with an accused who comes on the scene of occurrence fully armed with a weapon. This aspect of the case had totally been ignored by, the learned Additional Sessions Judge. He has also failed to note that punishment provided in section 337-A(iii), P.P.C. For Shajjah-i-Hashimah is Arsh and imprisonment which may extend to 10 years is discretion of the trial Court to be exercised after the conclusion of the trial in accordance with the I circumstances of the case.
7. The consideration for post-arrest bail and cancellation of bail are entirely different and once the concession of bail is granted to a person, it should not be snatched away from him without solid reasons.
8. For what has been discussed above, I am inclined to release the petitioner on bail, subject to his tendering bail bonds in the sum of Rs.1,00,000 (one lac) with two sureties, each in the like amount to the satisfaction of the trial Court.
H.B.T./A-235/L