1998 PLP 1535 (MLD)

Kazim Ali petitioner-accused alongwith his co-accused was raising the construction of wall while armed with weapons on 28-8-1997 at 2.00 p.m. which was objected to by Muhammad Nawaz on the ground that the area being included beyond the wall was 'Shamlat Deh'. An altercation took place Kazim Ali petitioner-accused is said to have inflicted the hatchet blow which fell on the left ear of Muhammad Nawaz. He did not repeat the blow. However, his co- accused also injured Muhammad Nawaz. About the occurrence crime case No.231 dated 31-8-1997 'stands registered at Police Station Garh Maharaja, District Jhang at the instance of Muhammad Nawaz son of Allah Bakhsh, a 'Bhanja' of Muhammad Nawaz (injured) son of Ghulam Muhammad, under sections 337-A(ii)/337-L/(ii)/148 and 149 Pakistan Penal Code. The occurrence is said to have been seen by Muhammad Nawaz complainant, Allah Ditta and Khuda Bakhsh P.Ws.

2. The injured Muhammad Nawaz son of Ghulam Muhammad was medically examined by the Medical Officer, Rural Health Centre, Rodoo Sultan, District Jhang who found six injuries on his person on 29-8-1997 caused by sharp edged and blunt weapons. The aforesaid injury attributed to Kazim Ali petitioner-accused has been declared as 'Shajjah-i-Mudihah' prima facie falling under section 337-A(ii) of the Pakistan Penal Code. The bail application of the petitioner has been dismissed by the learned Area Magistrate as well as by the learned Additional Sessions Judge. Kazim Ali petitioner has filed this petition before this Court to try his luck to be admitted to bail.

3. I have heard the leaned counsel for the petitioner as well as the learned State counsel and gone through the record before me. I am in full agreement; with the learned counsel for the petitioner who canvassed before me that Kazim Ali petitioner is entitled to be admitted to bail on the grounds that he is alleged to have inflicted one blow with hatchet and did not repeat the same, that there is no question of forming an unlawful assembly as the accused persons were already raising construction of the wail and had not arrived there within the purview of the definition of "unlawful assembly" and that an offence under section 337-A(ii) of the Pakistan Penal Code does not fall within the prohibitory clause as the maximum punishment is R.I. for a period of five years and the punishment under section 337-L(ii) of the Pakistan Penal Code is two years. According to the dictum enunciated in Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34) grant of bail in offences punishable with imprisonment for less than ten years is a rule and refusal an exception. The offence does not fall within the prohibitory clause and no exceptional matter has been brought to the notice of this Court to pass the order of dismissal of his application. It would be instructive to express that instead of writing the laboured orders, the efforts should be made to get and acquire the wealth of the case-law which is available pertaining to such matters for the guidance of the subordinate Courts. In view of the aforesaid reasoning I do not give weight to the assertion raised by the learned counsel for the State that the petitioner is not entitled to be admitted to bail on the ground that his name is mentioned in F.I.R. and that specific role has been attributed to him.

4. For what has been said above, I accept this petition and admit Kazim Ali petitioner-accused to bail in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. H.B.T./K-56/L Bail granted.