1982 P Cr (PLP)

S. 497-Rail-Bail once granted liable to be cancelled if concession of bail misused-Held, bail should not be cancelled without subs tantial and clear proof of allegation of misuse-Parties throwing blame of opening attack on each other-Not clear case of misuse of concession of bail-Such points yet to be determined by trial Court-Bail granted in circumstances. Rana Maqbool Ahmad for the State. Shamim Abbas Bokhari for the Complainant. This is an application for bail on behalf of Maqbool Ahmad and his son Khalil Ahmad in a case under section 307/325/34, P. P. C. registered at police station Okara Saddar on 27th September, 1978. The allegations against the petitioners are that they on 24th Septem ber, 1978 at 5/6 p. m. the area of Chak No: 36-37/R., P. S. Saddar Okara, in furtherance of their common intention made murderous assault upon Abdul Rehman, Niamat and Muhammad Yaqoob. 2. The petitioners were tried by the learned Magistrate, Section 30, Okara, who on 6th November, 1980, convicted and sentenced them to three years, R. I. and a fine of Rs. 500 each or in default thereof to further R. I. for two months under section 307/34, P. P. C. and to one year's R. I. each under section 325/34, P. P. C. Both the sentences were to run concurrently. 3. The petitioners filed an appeal. The learned Additional Sessions judge suspended the execution of the sentence of the petitioners during the pendency of the appeal and allowed them bail. On 17th December, 1978 the appeal was accepted and the case was remanded to the trial Court for proceeding according to law. The learned Additional Sessions Judge, however, directed that the petitioners shall remain on bail during the trial. Thereafter, the complainant applied for the cancellation of bail alleging that the petitioners had given beating to him and thereby have misused the privilege of bail. The learned Additional Sessions Judge after notice to the petitioners cancelled the bail vide his order dated 19th July, 1981 (Annex. 'E') on the ground that the petitioners having misused the concession were not entitled to remain on bail. 4. Learned counsel for the petitioners submits that in fact the com plainant party bad opened the attack and injured Zamir Ahmad son of Maqbool Ahmad petitioner No. I and as a counter-blast a false case was not registered against the petitioners. He bad placed on record copy of medico-legal report (Annex. B) of Zamir Ahmad, which shows that he had received three simple injuries caused by blunt weapon. He has also placed on record, copy of his report lodged at the Police Station and entered in the Roznamcha on 22nd May, 1981 at 11 a. m. (Annex. A) with regard to the incident which has taken place on that date. 5. As against this learned counsel appearing for the State assisted by the learned counsel for the complainant submits that the petitioners after having been released on bail had repeated the same offence by inflicting injuries on the person of the complainant on 22nd May, 1981 and that an F. I. R. has been recorded at P. S. Saddar Okara which proves the bona fides of the allegations. To support the allegations medico-legal report has been placed on the record which indicates that the complainant has received as many as five injuries with sharp-edged as well as blunt weapon, all simple in nature. An affidavit sworn by the complainant has also been placed on the record in support of the allegation of misuse of the concession of bail. Learned counsel further submits that the factum of the occurrence, which had taken place on 22nd May, 1981 has been accepted by the peti tioners. 6. I have considered the arguments advanced by the learned counsel for the parties. There is no doubt that the bail once granted to an accused person is liable to be recalled if he misuses the concession of bail but at the same time the bail should not be concelled without substance and clear proof of the allegation of misuse of the A privilege of bail. In this case I find that after about 2 years of the registration of the case against the petitioners an incident took place on 22nd May, 1981 in which both sides have received injuries. Zamir son of petitioner No. 1 lodged a report which was entered in the Roznamcha wherein he gave a different manner of the occurrence alleging that the complainant party had opened the attack. On the other side, the complainant got a case registered against the peti tioners with the allegations that petitioners were the aggressors and had opened the attack. The matter is still under investigation. After investi gation the challan is to be submitted. 7. I am of the opinion that in these circumstances when the parties are throwing blame of opening attack on each other, it is not a clear case of misuse of the concession of bail. In fact, it is yet to determined by a competent Court as to who had initiated the attack on 22nd May, 1981. The petitioners, who are in jail since 19th July, 1981 are allowed bail in the sum of Rs. 10,000 (rupees ten thousand) with one surety each in the like amount, to the satisfaction of A. C. Okara. Bail granted.