Dildar Hussain complainant of the F.I.R. No.369, dated 13-9-1999 of Police Station Gujar Khan offences under sections 337-A(i.e), 337H(ii), 147, 148 and 149, P.P.C. Seeks the cancellation of bail under section 497(5), Cr.P.C. Granted to the respondents Nos. l to 7 by the order of the learned Sessions Judge, Gujar Khan, dated 5-11-1999 and 27-11-1999.
2. Brief facts of the case as mentioned in the F.I.R. By the complainant are that on 13-9-1999 at 5-00 p.m. When he was going out of his house and had reached the street opposite to haveli of Naseeb Khan then 9 persons namely Naseeb Khan son of Jamal armed with stick, Mazhar Hussain armed with hatchet, Azar Hussain, Ali Qadar sons of Naseeb Khan armed with stick, Jehangir Khan armed with stick, Naeem Akhtar armed with stick, Zafar Hussain armed with stick, Akhtar Hussain armed with stick and Saghir parentage unknown came out Naseeb Khan raised a "Lalkara" that Dildar should be caught hold of and he be killed. Azhar Hussain gave a Soti blow which hit the complainant on his head. Second stick blow was given by Jehangir which hit him on left upper arm.
In the meanwhile the first cousin of the complainant Iftikhar Hussain gave a hatchet blow on the head of the Iftikhar Hussain which hit him on his head from blunt side. Second blow was given by Zafar Hussain with stick which hit Iftikhar Hussain on his head. Ali Qadar the absconding accused gave stick blow to Qadeer Hussain which hit on his left arm, then Akhtar Hussain, Naeem, Naseeb and Saghir gave stick blows to -Iftikhar Hussain and Qadeer Hussain which hit the injured on different parts of their bodies. Iftikhar Hussain fell down on the ground at Alarm, Ghazanfar Ali son of Bino Khan, Muhammad Zaman son of Pehlwan Khan resident of village and many other villagers came to the spot. After witnessing the occurrence the assailants climbed up their roofs and Jehangir while armed with .12 bore gun and son of Saghir armed with Carbine started firing in air and saying that no body would dare to take away the injured. The motive for occurrence was litigation between the parties and on the day of occurrence date was fixed for hearing in one case.
Due to which all the accused above mentioned alongwith Qadeer and son of Saghir after making an unlawful assembly attacked the complainant party in the prosecution of the common object of unlawful assembly.
3. Total 9 accused were nominated out of which Nazeer and Saghir are absconding. The respondent prayer for grant of pre-arrest bail was declined by the learned Sessions Judge, Gujar Khan vide his order, dated 23-10-1999 they were taken into custody. While granting bail to the respondents Nos.1 to 5. The learned Sessions Judge declined the bail to Mazhar Hussain and Zafar Hussain respondents Nos.6 and 7 by observing: "Mazhar Hussain who inflicted hatchet blow on the head .Of Iftikhar has caused injury on the vital part of body of injured Iftikhar. Specific role is attributed to him and thus he cannot be considered to be entitled for concession of bail. Zafar Hussain accused also gave Sota blow on the head of Iftikhar injured who sustained as many as five injuries as reported vide MLR. He, therefore, cannot escape his role by giving injury on the vital part i.e. Head of Iftikhar. Since the both above mentioned accused made murderous assault and there is sufficient ground on the file against both the accused and offence alleged against them carries punishment for 10 years which falls under the prohibitory clause of section 497, Cr.P.C. As such relying upon PLD 1995 SC 34 bail petition to the extent of Mazhar Hussain and Zafar Hussain is hereby rejected. "
4. Further respondents Nos. l to 5 were granted bail on the ground that no specific role is attributed to all the five accused persons nor any injury on the person of injured or on the vital part of body attributed by these five accused persons.
5. The bail of the respondents Nos.6 and 7 namely Mazhar Hussain and Zafar Hussain was again moved before the learned Magistrate Section 30 who granted the bail order, dated 27-11-1999, by observing that the recovery is absolutely fake and highly doubtful. And that his bail application was rejected on 5-11-1993 and the prosecutor was directed for submission of challan within 15 days but no challan so far been submitted in spite of more than three weeks.
6. The petitioner moved an application under section 497, subsection (5) of the Cr.P.C. For cancellation of the bail before the learned Sessions Judge. The same was declined vide order, dated 14-4-2002. It was held that-- "from the perusal of. The record, it is evident that the challan in the case was submitted in the Court on 16-2-2000 much after the prescribed period and thus the mandatory provisions of section 173, Cr.P.C. For submission of challan were not complied with by the prosecution. "
7. Learned counsel for the complainant contends that it was observed by the learned Sessions Judge that there are reasonable grounds to believe against the respondent that they have committed the offence which is punishable with 10 years' R.I. Thereafter there was no justification to grant the bail of respondents Nos. l to 5 by observing that: "The case of respondents Nos. 1 to 5 is of further inquiry. He has placed reliance on PLD 1982 SC 182."
8. Further contends that there was no new ground for the learned Magistrate to allow the bail to respondents Nos. 6 and 7 Mazhar Hussain and Zafar Hussain as their bail application was rejected earlier on merits by the same Judicial Magistrate. Further he added that the occurrence took place after the constitution of unlawful assembly and that the accused were variously armed were responsible. That there was grievance injuries of fracture on the skull bone of Iftikhar Hussain P. W.
And hence case falls in prohibitory clause of section 497, subsection (1) as the punishment for section 337-A(ii) is 10 years. Finally he argued that non-submission of challan as directed by the Court is no ground to grant the bail, to the respondents. To substantiate his arguments he has placed reliance on PLD 2002 SC page 590 and PLD 1997 Pesh.
173. Finally he has argued that facts were suppressed from the Court that earlier bail petitions have been dismissed from the Court for this he has referred PLD 1986 SC 179.
9. Learned counsel further states that non-submission of challan is not relevant because two accused are still absconding. On the basis of case reported as 1999 PCr.LJ 1260 it is submitted that even after commencement of the trial, bail can be cancelled. On the contrary learned State Counsel assisted by the respondents contends that Zafar Hussain accused has been declared innocent, Mazhar Hussain accused was alleged to has caused hatchet blow with wrong side therefore, there was no intention to kill the complainant or the D.W. Learned counsel on the strength of case reported as Shah Mir v. The State 1994 PCr.LJ 2151 argues that it is not clear as to which injury was attributed to the accused, therefore, all the respondents were entitled for the bail and there is no justification for cancelling-the bail of the respondents. He further relied on the case of Muhammad Saleem v. The State 1994 PCr.LJ 2283 to contend that it is not clear who out of the 9 accused caused relevant injury and it remain shrouded in mystery until and unless evidence is recorded on trial, therefore, the case of the respondent was of further inquiry and the bail has been rightly allowed by the trial Court.
10. It is admitted on the record that bail before arrest of all the respondents were rejected by learned Additional Sessions Judge. Thereafter, respondents Nos.1 to 7 was granted bail by the Judicial Magistrate vide his order, dated 5-11-1999. Naseeb Khan stated to be a 70 years of age. No specific role is attributed to accused/respondents Nos.1 to 5 or injury on the person of injured or on the vital part or body attributed by these five respondents/accused. There is previous enmity between the parties. In this view of the matter there was no reasonable ground to believe that respondents Nos. l to 5 have committed the offences for which they were charged for. Therefore, learned Magistrate Section 30 was right in allowing the bail after arrest to respondents Nos.1 to 5 vide order, dated 5-11-1999 and the bail was rightly not cancelled by the learned Sessions Judge. As far as the remaining accused/two respondents namely Mazhar Hussain, Zafar respondents Nos.6 and 7 the learned Magistrate himself observed that : "They caused injuries with hatchet blow on the head of Iftikhar on the vital part of body and Zafar Hussain also gave Sota blow on the head of Iftikhar. "
11. After recording above findings there was no justification for him to grant the bail to the respondents Nos.6 and 7 vide order dated 27-11-1999 without any new ground available to the respondents Nos.6 and 7. Merely on the ground that recovery allegedly is fake and doubtful which is yet to be determined in the evidence and that Zafar Hussain has been declared as innocent were no ground to grant the bail to the respondents Nos. 6 and 7.
12. It has been held in the case reported as 1999 PLJ 2990 that without cogent material on the file of the appeal merely opinion of the Investigating Officer is not relevant. The bail can be cancelled even after the submission of the challan. Simply there was delay on the part of prosecution in submitting the challan was no ground to grant the bail to respondents Nos. 1 and 2.
13. The case relied by the learned counsel for the respondent reported as Muhammad Saleem v.
The State and Shah Mir v. The State 1994 PCr.LJ 1251 and Muhammad Saleem v. The State 1994 PCr.L1 2283 are not applicable to the case of respondents Nos. 6 and 7. They have been specifically attributed injuries to Iftikhar on the vital part of body, therefore, it cannot be said that out of 9 accused who caused relevant injury.
14. I have perused the order of the learned Magistrate, dated 27-11-1999 through which respondents Nos. 6 and 7 have been granted bail. All the three grounds delay in submission of the challan, the recovery is fake and doubtful and that Zafar Hussar accused has been declared innocent is of superficial and fictitious nature. Leaned Magistrate has granted the bail merely on conjectures and surmises, by holding that there are grounds for further inquiry into the guilt of the respondents Nos.6 and 7. In case reported as PLD 1985 SC 182 (Muhammad Sadiq v. Sadiq and others) while interpreting the provisions of section 497(1), Cr.P.C. The Hon'ble Supreme Court has interpreted the scope and meaning of phrase, "further inquiry" and ruled: "Bail under section 497(2), Cr.P.C. Can be-granted to accused as of right if Officer Incharge of Police Station or Court taking cognizance of matter comes to a definite conclusion on consideration of entire material that 'there are no reasonable grounds for believing that accused has committed a non-bailable offence' Accused cannot be released on bail on ground of 'further inquiry' without such finding of said authorities."
Resultantly, this application is partly allowed to the extent of respondents Nos. 6 and 7 Mazhar Hussain and Zafar Hussain, their bail is cancelled. To the extent of the remaining respondent Nos. 1 to 5. There is no ground to interfere with the order of granting the bail to them to their extent petition is dismissed.