' Tanveer Afzal son of Zafar Iqbal has moved the present application for cancellation of the to Umar Hayat and Khyzer Hayat sons of Sardar Khan and Ishrat Shahbaz son of Umar Hayat by the Additional Sessions Judge, Mandi Baha-ud-Din on 14-9-2000.
2. At the initial hearing notice was issued only to the extent of Umar Hayat. As regards Khyzer Hayat and Ishrat Shahbaz the application was dismissed.
3. Allegation contained in the first information report authored by Tanveer Afzal is that his Dera is situated towards the south of his village. On 12-7-2000 at Deegar Wela Zubair Anjum son of Khyzer Hayat whose Dera is adjacent to theirs alongwith Nazar son of Ali Muhammad were eating the Jaman fruit when he alongwith his brother Madassar Iqbal were sitting at their Dera when on account of a trivial cause a brawl ensued. Zubair Anjum shouted at his Dera for his companions to come to his rescue and within the twinkling of an eye Khyzer Hayat, Umar Hayat sons of Sardar Khan, Nusrat Shahbaz, Itezaz Ahsan sons of Khyzer Hayat, Ishrat Shahbaz and Qaiser Shahbaz sons of Umar Hayat all armed with Sotas came to the spot. Khyzer Hayat gave first blow which hit the first informant on his head. On his hue and cry his brother Shakeel Afzal, Farooq Ahmad his cousin came to the spot who were also injured by Nusrat and Itzaz. Ishrat Shehbaz also wielded his weapon injuring Aamir Farooq on his head. Aamna Bibi wife of Mukhtar Ahmad his uncle was present in her house when Umar Hayat respondent/accused went inside and gave her a Sota blow which hit her on her right hand. On the noise raised by them a lot of people assembled and rescued them.
4. Motive for the occurrence was stated to be prior enmity and in order to seek revenge the accused by forming an unlawful assemble in furtherance of their common object attacked and assaulted them.
5. Respondent moved an application for pre-arrest bail which was declined and he was taken in custody alongwith others on 29-8-2000 but on 14-9-2000 he was allowed post-arrest bail by the Additional Sessions Judge, Mandi Baha-ud-Din and application of the complainant for cancellation of the was dismissed on 3-11-2000.
6. Learned counsel for the complainant/petitioner contended that the offence under section 337- F(vi) read with section 452, P.P.C. Both of them punishable with 7 years was committed and although the same does not fall within the prohibitory clause of section 497, Cr.P.C. Yet it was not a case where the discretion should have been exercised in favour of the respondent. Conversely, learned counsel for the complainant supported by the learned counsel for the State, insisted that the discretion has been properly exercised. Respondent being a graduate and respected Zamindar was falsely involved due to prior enmity.
7. I have adverted to the arguments of the respective counsel and have also gone through the record.
The melee in which a number of persons were injured by the respondent and others took place near the Deras of the accused and the complainant, however, respondent/accused not being satisfied entered the house of the complainant where Mst. Amina Bibi a lady of the house was present and she was given Sota blow by the respondent. This act alleged in the F.I.R. Makes the case of the respondent/accused of serious nature. A lady present in her house and not participating in the occurrence on her very sight respondent/accused left the melee and entered her house giving her a blow with a Sota which resulted in the fracture of her right hand's (meta caspal) bone of right ring finger. Undoubtedly case of the respondent/accused does not fall within the prohibitory clause but the cowardly act by beating a woman just because she belonged to the opposite camp has convinced me that it is a fit case where the bail should be recalled especially when it has been granted just 14 days after his pre-arrest bail application was declined and while in custody with police a Sota was recovered at his instance. Application of the complainant succeeds and the to Umar Hayat by the Additional Sessions Judge, Mandi Baha-ud-Din is recalled.
He shall be taken into custody to face the trial.
Bail cancelled.