1985 PLP 679 (MLD)

Shamas Din petitioner has moved this petition for bail in a case registered against him and others under sections 148, 307, 324/149, P.P.C. The facts of the case have been detailed in my order, dated 18-5-1983, passed in Criminal Miscellaneous No. 638-B of 1983 and need not be recapitulated here. It may, however, be mentioned that the Part attributed to the petitioner is that he raised a Lalkara and opened the attack by giving a hatchet blow on the right side of the head of Bashir Ahmad P.W.

2. The petitioner and his co-accused applied for bail before arrest in the Sessions Court but their application was dismissed vide order, dated 7-3-1983. Then they moved Criminal Miscellaneous No. 638-B of 1983, in this Court which was dismissed vide order, dated 18-5-1983. While dismissing the petition for bail before arrest it was observed that according to the medico-legal report Rashid Ahmad P.W. was vomiting at the time of medical examination and his condition was serious. It was further observed that the number of injuries showed that the injured P.Ws. were given merciless beating. The petitioner and his co-accused surrendered before the police on 21-5-1983 and were allowed bail by the Ilaqa Magistrate only two days later on 23-5-1983. The complainant then moved an application for the cancellation of bail in the Sessions Court which came up for hearing before the learned Additional Sessions Judge on 15-6-1983 who allowed the application and cancelled the bail of the petitioner and his co-accused. The petitioner did not appear in the Sessions Court and filed the present petition in this Court for pre-arrest bail.

3. The learned counsel for the petitioner contends that only a simple injury has been attributed to the petitioner; he has already joined the investigation; the investigation is complete and his case is at par with those who have bean released on bail. The learned counsel for the complainant, on the other hand, submits that the order of the learned Magistrate granting bail to the petitioner, only five days after the dismissal of his petitioner for pre-arrest bail by this Court, was wholly unjustifiable and the conduct of the petitioner dis-entitled him to the grant of extraordinary concession of pre-arrest bail. He submits that the petitioner did not appear in the Sessions Court and after the cancellation of the bail by the learned Additional Sessions Judge when the co-accused of the petitioner made an application for post-arrest bail in the Court of Ilaqa Magistrate on 18-6-1983, the said application carried his name as one of the petitioners although he was at large.

4. I have gone through the relevant material and given my careful consideration to the arguments addressed by the learned counsel for the parties. The learned counsel for the petition has produced a copy of the order of the Magistrate, dated 19-6-1983 which shows that it was in his 'knowledge that the petitioner was at large and he accordingly did not consider him as one, of the petitioners before him. The grant of bail by the Ilaqa Magistrate only 4-5 days after the rejection of the petition for bail before arrest by this Court cannot be approved. However, since the investigation is complete and only a simple injury has been attributed to the petitioner and his co-accused with, a similar role have already been admitted to bail, I do not feel inclined to recall the order, dated 28-6-1983. The interim bail allowed to him is, therefore, confirmed. M. Y. H. Interim bail confirmed.