' Gulab and his sons Sher Afzal and Liaqat Ali respondents herein, were arrested in connection with a case registered against them at Police Station Balakot vide F .l. R. No, 370 dated 16-12-1999, under section 337-A(ii)/34, P.P.C. At the instance of complainant Muhammad Riaz petitioner herein.
2. The prosecution story in brief is, that on 16-12-1999 at about 16-55 hours complainant Muhammad Riaz was on his way to his house from his shop and when he reached near the house of the respondents situate in Deh Narra Balakot, he was confronted by the respondents. Gulab was having an axe in his hand whereas his sons were having sticks with them. When the petitioner reached near them, sons of Gulab started beating the complainant with their sticks. Gulab also caused injury on the head of the petitioner with the blunt side of his axe. On raising hue and cry Ashraf, Muhammad Nawaz, Shamas, Muhammad Azam (brother of the complainant) and many others of the locality were stated to have attracted to the spot and rescued the petitioner from the clutches of the respondents. A dispute over path was stated to be the motive for the incident.
3. The matter was reported by the complainant on 16-12-1999 in the Emergency Ward of Balakot Hospital at about 18-05 hours and resultantly a case was registered against the respondents, the same day at 19-00 hours.
4. The respondents submitted applications for grant of bail before Judicial Magistrate, Balakot and Sessions Judge, Mansehra. Sher Afzal and Liaqat Ali were admitted to bail by the Judicial Magistrate vide his order, dated 21-12-1999 whereas Gulab was released on bail by learned Sessions Judge, Mansehra by virtue of his order dated 14-1-2000.
5. Muhammad Riaz petitioner, feeling aggrieved, has filed instant application under section 497(5), Cr.P.C. Seeking cancellation of bail granted to the respondents vide orders dated 21-12-1999 and 14-1-2000.
6. Malik Manzoor Hussain, Advocate appearing on behalf of the petitioner attempted to argue that in view of the material off file connecting the respondents with the crime in question, the learned Courts below had no justifiable reasons to accept the applications of the respondents and release them on bail. To substantiate the pleas, he relied on Muhammad Afzar v. Khial Mast and ancthef PLD 1992 Pesh. 158; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Arab Gut and 3 others v. Amir Rabi and another 1999 PCr.L.J. 1675 Peshawar.
7. Conversely, Mr. Ghulam Younas Tanoli, Advocate for the State assisted by Mr.Ghulam Mustafa Khan Swati, Advocate, counsel for the respondents defended the impugned orders and submitted that the respondents have been released on bail on the basis of cogent reasons and the impugned orders warrant no interference of this Court. Reliance was placed on Mst. Shafiqa v.
Hashim Ali and another 1972 SCMR 682; Bachal and 6 others v. The State 1973 SCMR 102; S.Amanullah Shah v. The State and another PLD 1996 SC 241; Bahadur v. The State and another 1998 PCr.L.J. 695 and Usman v. Muhammad Azam and another 2001 PCr.L.J. 1461 Peshawar.
8. It needs no reiteration that the consideration for post arrest bail and cancellation of bail are entirely different and once the concession of bail is granted to an accused person by a Court of competent jurisdiction it should not be taken away lightly from accused unless it becomes necessary to deprive him of his liberty under the law. In the instant case, one of the respondents namely Gulab has been assigned a specific role of causing injury on the vital part of the body namely head of the complainant with the blunt side of his axe, resulting in fracture of skull as shown by the X-ray report. The injury has gone deep. Had it been with a slightly more force, it would have smashed the brain. The victim remained in the DHQ Hospital, Mansehra and Ayub Teaching Hospital, Abbottabad for more than a week and during examination by the neurosurgeon, brain of the petitioner showed haemorrhage. Keeping in view the medical report of the petitioner and the role assigned to Gulab respondent I find that no leniency should have been shown in the matter of bail. The mere fact that respondent did not repeat the blow despilp the petitioner was at his mercy and felt content with a single blow by itself constitutes no valid ground for grant of bail. The rulings cited at the Bar, so far as the respondent is concerned, proceed on different facts and do not promote the case of the respondent. The application qua Gulab respondent is accepted and bail allowed to Gulab is hereby cancelled. Gulab is present in Court. He is directed to be taken into custody and sent to Jail to await his trial.
9. So far as Sher Afzal and Liaqat Ali are concerned they are charged for causing stick blows to the petitioner at the instigation of their father Gulab respondent. The concession of bail has been extended to them for valid reasons which hardly warrant interference of this Court. The bail granted order relating to them is maintained. The application of the petitioner qua the above- named respondents is dismissed.
10.The observations made herein above are tentative in nature and the trial Court shall not be influenced thereby in any manner whatsoever and it shall be free to arrive at its own independent conclusion after the evidence is recorded in the main case.