1990 P Cr (PLP)

Nemo for the State. Ghulam Hussain Malik for the Complainant. Respondents Nos.3 to 6 in person. Date of hearing: 23rd October, 1989. The petitioners, Abdul Ghafoor son of Khair Din, Muhamma Azam alias Bhola son of Abdul Ghafoor (in jail) and Ajmal Khan alias Nanna son of Abdul Ghafoor, Ibrahim son of Khair Din, Irfan son of Ibrahim and Rizwan alias Kala son of Ibrahim, have moved this revision petition against the order, dated 16-9-1989 of the learned Additional Sessions Judge, Gujranwala whereby he cancelled the post-arrest bail of the petitioners, in a case under section 325/324/148/149, P.P.C. registered against them at Police Station Kassoki, District Gujranwala vide F.I.R. No.51/1989, dated 5-5-1989.

2. The precise allegations against the petitioners are that they formed themselves into an unlawful assembly duly armed with deadly weapons and thereafter launched an aggression upon the complainant party. They are alleged to have inflicted as many as seven injuries including two grievous injuries on the person of Abbas Ali on 5-5-1989. The petitioners were admitted to bail after arrest by the learned Magistrate 1st Class, Hafizabad on 11-5-1989. However, on the petition of the complainant the bail of the petitioners was cancelled by the learned Additional Sessions Judge, Gujranwala on 16-9-1989. The bail was cancelled by the learned Additional Sessions Judge on the ground that the case A falls under the prohibitory clause and that the offence appears to have been committed under section 326, P.P.C.

3. The contention is that the medical evidence is not in line with the ocular account inasmuch as the doctor says that injury No.4 on the lip of the complainant was caused by a blunt weapon whereas the ocular account provides that the said injury was inflicted by a sickle. The other injury has undoubtedly been declared grievous by the doctor. The grievance of the petitioners is that they moved a petition for re-examination of the second grievous injury. but the injured did not intentionally appear before the doctor for the purpose of his medical examination. On these premises, the submission is that there is no concrete evidence available on record to show that the second injury too is grievous. The learned counsel has placed reliance on the judgment reported as Bachal and others v. The State 1973 S C M R 102 and Azeem etc. v. The State 1987 M L D 1130. The learned State counsel has vehemently opposed the grant of bail to the petitioners. He submits that the petitioners are named in the F.I.R. with specific roles.

4. I have heard the learned counsel for the parties and have perused the record. The Investigating Officer is present. He states that challan against the petitioners has been submitted before the learned trial Court under section 325, P.P.C. The maximum sentence provided under the said offence is seven years' R.I, The two petitioners Abdul Ghafoor and Muhammad Azam alias Bhola are in jail for the last more than one month. The lad that the challan has been, i submitted by the police before the A.C./Magistrate 1st Class, is not disputed by the learned State counsel and the learned counsel for the complainant. The learned Magistrate 1st Class is competent to award maximum sentence up to three years to the accused. In Bachal's case 1973 S C M R 102, referred to above, the Honourable Supreme Court upheld the bail granting order having been passed by the learned trial Magistrate. The question whether the case falls under section 325, P.P.C. or 326, P.P.C. is primarily a question to be determined by the learned trial Court after recording the evidence. Respectfully following the cases, referred to above, I proceed to set aside the order of the learned Additional Sessions Judge, Gujranwala, dated 16-9-1989 and restore that of the learned Magistrate 1st Class, Harizabad, dated 11-5-1989. In consequence, the petitioners Abdul Ghafoor and Muhammad Azam shall be released from the jail. The revision petition succeeds and is allowed.

5. The learned trial Court is directed to conclude the trial of the petitioners within next two months without fail as requested by the learned counsel for the parties. S.A./A-880/L Revision accepted.