1981 P Cr (PLP)

Rao Muhammad Yusuf Khan for Appellants. Walayat Umar Chaudhry for the State. The three appellants, all real brothers have appealed to challenage their conviction and sentence of rigorous imprisonment for seven years plus a fine of Rs. 5,000. each, in default further rigorous imprisonment for six months for the offence of attempt to murder under section 307/34, Pakistan Penal Code. Application has also been made under section 426, Cr. P. C. or orders suspending their sentences pending decision of the appeal.

2. Heard either side. According to prosecution Irshad appellant (2) had dealt injuries to Abdul Sattar P. W. in the head and in the back of chest as a result of which the witness had dropped down unconscious. He was in a serious condition when examined by the doctor in the hospital. Muhammad Anwar and Shamshad the remaining two appellants (1/3) armed respectively with hatchet and hockey stick had allegedly accompanied Irshad to attack Abdul Sattar. They both have been attributed lalkara only. Learned trial Magistrate has answered the charge against the appellants with the finding that they had committed the crime in furtherance of a common intention.

3. Learned counsel for the appellants contends that there was delay in the first information report which was not explained satisfactorily. The presumption would be that consultations to fix identity of the accused must have preceded registration of case against the appellants. Reports of medical and radiological examination of Abdul Sattar had not been proved in evidence in accordance with law. Necessary formalities for admission of secondary evidence under section 65, Evidence Act had not been observed by the trial Magistrate in that the process server who was entrusted service of summons issued to the doctor was not examined by the learned Magistrate. Evidence on the side of prosecution was tainted as the witnesses were interested in the complainant and also inimical towards the appellants. There was no corroborative evidence to dispel the doubt with which evidence of such witnesses is affected. Muhammad Anwar and Shamshad appellants who are both young and were also armed with hatchet etc. had been attributed lalkara only. There was nothing to keep them from causing injuries to Abdul Sattar if they had accompanied Irshad all the way long to the site of occurrence carrying arms with them. Prosecution bad resorted to usual exaggeration in the number of the accused.

4. As against it learned counsel for the State contended that the petition was liable to be dismissed summarily on the short ground that the appellants had been held guilty for an offence punishable with life imprisonment which fell within the purview of subsection (1) of section 497, Criminal Procedure Code. Power to grant bail' under section 426, Cr. P. C. is rot wider than the power under section 497/498, Criminal Procedure Code. The contentions raised on the side of the appellants against soundness of finding of guilty against them do not merit a serious notice. Merits of the case could not be prejudged for disposal of application for bail. The case against Anwar and Shamshad, however, calls for a different treatment. The contention advanced on behalf of the State in these generalized terms cannot be sustained. True the provisions in section 497/498, Criminal Procedure Code should be the guidelines for exercise of powers under section 426, Criminal Procedure Code. However, it is wrong to say that the accused found guilty of offence covered by subsection (1) of section 497, Cr. P. C. must always be refused bail by way of a mechanical routine. It was held in Abdul Ghaffar v. Anwar‑ul‑Hassan (1978 S C M R 149), that the appellate Courts discretion to grant bail is not fettered or restricted by reference either to the conviction or to the sentence passed against the appellant by the trial Court. Anwar and Shamshad are allowed bail in the sum of Rs. 5,000 with two sureties each with personal bonds in the like amount to the satisfac tion of Assistant Commissioner/Resident Magistrate, Khanewal. The application so tar it relates to Irshad appellant who alone is said to have caused injuries to Abdul Sattar stands rejected.

5. Let the appeal be fixed for hearing on a date during first week of October, 1980, as suggested by learned State counsel. Bail allowed.