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Criminal Bail Application No. 773 of 1981, decided on 29th November; 1981

‑‑ S. 498‑Bail before arrest‑Applicant, accused of murderous assault alongwith others, having armed himself with a blunt weapon and in pursuance of preconcert entering complainant's house and making a joint attack--‑F. I. R. lodged promptly and applicant nominated as one of inmates as also injured prosecution witnesses-- Injured sustaining two grievous blunt weapon injuries‑Bail declined, in circumstances.

(b) Criminal Procedure Code (V of 1898)‑--

‑‑ S. 498‑--Bail before arrest‑Applicant, an old man, allegedly coming armed with a danda alongwith others and instigating others to launch attack‑--Nothing in F. I. R. to show that after instigation applicant also participated in attack and caused injuries‑Ad interim bail granted earlier to applicant confirmed, in circumstances.

M. K. Rohila for.Applicants.

M. I. Memon Addl. A.‑G. for the State.

It is submitted that the present two applicants namely Mahmood and Mahboob who are father and son respectively are being tried for offences under sections 307, 452, 148 and 147, P. P. C. It is alleged that infact there were 5 accused persons out of whom Mohammad Ayub was armed with chhuri and the remaining 4 accused persons including present two applicants were armed with lathis and they came inside the house of complainant and made attack in the result whereof two persons namely Abdul Hakim and Maqsood became injured. Incident took place on 6th September 1981 at 6 p.m. And F. I. R. was lodged on the same day at 6.45 p. m. Names of all accused persons are mentioned in F. I. R. Apart from two injured eye‑witnesses there are other two eye‑witnesses namely Syed Nasir Raza and Iqbal Ahmed who are stated to have been attracted to the spot on hearing cries and saw the incident. Plea for bail before arrest was made before learned Sessions judge by the present two applicants, who reflected bail application vide order dated 21st September, 1981. Plea for bail before arrest was made before this Court and vide order dated 28th September, 1981 ad interim bail was granted and this application came up for hearing on several occasions but could not be disposed of because final medical report was not available.

It is now stated that according to medical reports injured Abdul Hakim is stated to have sustained 5 injuries, out of which two are grievous and the remaining are simple in nature. The learned Additional Advocate General has further stated that injured Maqsood has sustained 5 injuries and out of them two have been certified to be grievous in nature out of which one is caused by sharp cutting weapon and the other by blunt weapon. It is argued by Mr. Rohila that as per prosecution case the attack was joint in nature and grievous injuries caused by blunt weapons cannot be pin‑pointed on the present two applicants. It is also stated by him that by sections 149, P. P. C. has not been applied by police.

It is submitted by the learned Additional Advocate‑General that this is an application for bail before arrest, which is a concession of law and is discretionary with the Court. The, present two applicants have not joined investigation and had they done so, weapons would have been recovered from them. It is also submitted that there are grievous hurts on the persons of injured Abdul Hakim and Maqsood and some such grievous injuries have been caused by blunt weapons. Both applicants are stated to be armed with blunt weapons. It is also stated that all the accused persons in pursuance of a preconcert entered the house of the complainant and made joint attack with their weapons.

5tnce bail before arrest is discretion of the Court which is to be exercised in a judicious manner I feel that in these circumstances as stated above there are reasonable grounds to believe that applicants have committed offence alleged against them and are not entitled to bail particularly when F. I. R. is lodged without any loss of time and the names of all accused persons appear in F. I. R. and there are 5 eye‑witnesses from whom two are injured, who would depose in the Court at A the proper stage. However, I feel that case of applicant Mahmood is distinguishable for the reasons firstly that he is an old man and secondly that according to F. 1. R. it is stated that he came armed with a danda along with other accused persons and instigated others, who launched an attack on Abdul Hakim and Maqsood. In F. I. R. it is not clearly stated that after instigation applicant Mahmood also participated in the attack and caused injuries The learned Additional A. G. has frankly admitted that from the reading of the contents of F. I. R. it appears that narration is open to two interpretations and one is that applicant Mahmood B did not participate actively in the attack. In. the circumstances interpreta tion favourable to the accused is to be adopted. Ad‑interim bail granted earlier to Mahmood is confirmed on the same terms and conditions and interim bail granted to applicant Mahboob is not confirmed. In his case let law take its own course.

Order accordingly.

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