JAVAID IQBAL and anothers vs THE STATE

ORDER

1. ' FAZAL ILAHI KHAN, J---This is a petition for leave to appeal against the order dated 24-1-1994 of the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No, 735--B of 1993; whereby the petitioners' to them by the learned Additional Sessions Judge, Rawalpindi on 24-10- 1993 was set aside.

2. ' Case against the accused/petitioners was registered vide F.I.R. No,102 dated 25-7-1993 under sections 324/147/148, P.P.C. On the allegation of Amir Kebul son of Karam Dad that he is permanently residing at Rawalpindi but on the day of occurrence had gone to his village to see his mother where he was informed by Mst. Sabira Bibi, his sister, that Rehm Ali and others had started' construction of shops on 23-7-1993 in spite of their objection that till partition of the land no construction could be raised on the joint property. This had led to altercation between Mst. Sabira Bibi and Abdul Ghani. Having come to know of the fact he also asked Rehm Ali to desist from raising any construction over the property till the regular partition is carried out. It was at about 6- 30 p.m. In the evening, while he was sitting with Mst. Sabira Bibi, Matloob Khan and his mother in their house that Rehm Ali son of Karam Dad, and Javaid Iqbal armed with Daundas; Abdul Ghani armed with spade; Mst. Nusrat Bibi wife of Javaid Iqbal, Mst. Hameeda Bibi wife of Abdul Ghani and Mst. Sardar Begum wife of Rehm Ali armed with Sotas challenging the complainant entered their house, attacked and injured them. Bail after arrest was allowed to the accused/petitioners by the learned Additional Sessions Judge vide order dated 24-10-1993 in the sum of Rs,20,000 with one surety each.

3. ' Aggrieved by the order Amir Kabul complainant challenged it in the High Court, through Criminal Miscellaneous No, 735-B/93, mainly on the ground that the injuries being grievous the learned Sessions Judge was not justified in allowing bail to the accused. The learned High Court on its finding that respondents/accused armed with Daundas had inflicted as many as 8 injuries to the complainant including 2 injuries of grievous nature and that Abdul Ghani had inflicted injury with spade on the head of Mst. Sabira Bibi causing fracture to her skull, held, prima facie, the offence falls within the prohibitory clause of section 497, Cr.P.C. Hence allowed the petition, setting aside the order of learned Sessions Judge cancelled the bail with a direction that the accused/respondents/petitioners be taken into custody and send to judicial lock-up.

4. ' It was contended by the learned counsel for the petitioners that the learned Sessions Judge has exercised his discretion after proper appraisal of the prosecution case in the light of the law applicable thereto. That the offence at the most falls under section 337, P.P.C. Which is punishable with imprisonment for 3 years' R.I. Which would not make out a case falling within the prohibitory clause of section 497, Cr.P.C.

5. ' Learned counsel appearing for the State did not controvert this aspect of the case for the present.

6. In this view of the matter and that the petitioners have already remained in jail for some time and the learned Sessions Judge has exercised his discretion on proper appraisal of the material available on the record, we are of the view that no interference was required with the order. This petition is, therefore, converted into appeal and allowed. The petitioners are granted bail in the sum of Rs,20,000 each with two sureties each in the like amount to the satisfaction of concerned Ilaqa Magistrate.