2011 PLP 781 (YLR)

CH. IFTIKHAR HUSSAIN, J.--Petitioner Muhammad Ishaq through the instant petition has prayed for post arrest bail in case F.I.R. No.35 registered under sections 302, 324, 148, 149, P.P.C. with Police Station Khanqa Dogran, District Sheikhupura on 16-2-2010.

2. Briefly the prosecution case as per the F.I.R. is that on the said date i.e. 16-2-2010 at about 7-00 a.m. Mushtaq and others, while having Kalashnikovs, in prosecution of the common object of the unlawful assembly formed by them, have committed the Qatl-e-Amd of deceased Sabir Hussain and attempted the qatl-e-amd of Mst. Fazeelat Bibi. Gui Zaman has fired with Kalashnikov at Sabir Hussain hitting on his left flank. Mushtaq has fired with Kalashnikov hitting on his left buttock. Suleman has made straight fire hitting on his left thigh. Muhammad Hussain made fire shot hitting on his left arm. Thereafter, all the accused made indiscriminate firing. Deceased Sabir Hussain succumbed to his injuries at the spot. Mst. Fazeelat Bibi, the maternal cousin of the complainant, when stepped forward to see his dead body, Suleman son of Mushtaq has fired brust with Kalashnikov at her hitting her under the abdomen and she fell down.

3. After hearing the learned counsel for the parties and perusing the record, I find that although he has been named in the F.I.R. as one of the accused persons but has been attributed no specific injury to the deceased. He maximum from the narration of the F.I.R. along with others .appears to have fired ineffective shots.

4. During the investigation, he has been found to be merely present at the spot and that too empty handed and having played no role during the same. Besides than this, admittedly no recovery has been effected from him.

5. The combined effect of all such facts has led me to hold that his case is c definitely open to further inquiry into his guilt and so, covered under subsection (2) of section 497, Cr.P.C.

6. It may be mentioned here that he as per the record has been shown to be an absconder for some time. According to his learned counsel, it was for about a period of three months, while it was actually not so.

7. It is well settled proposition in criminal administration that the case of an accused, when otherwise, may be found one of further inquiry into his guilt, his alleged absconscion cannot be a clog in his way to grant of such relief.

8. Another important factor to be noted is that it has been argued by his side that he is a feeble person aged about 75-years and it has been found during the investigation that he even is not able to follow his ordinary daily pursuits. His learned counsel, however, has not produced any proof in respect of his age but in the police record, he has mentioned as an old man. The police record has also revealed that the police have mentioned his age as 65 years. This would show that the prosecution it self has mentioned him to be an old man.

9. I then have no hesitation to say here that old age itself is an infirmity. He so within the meaning of the word "infirm" in the first proviso to section 497 (1), Cr.P.C. can be said to be an old and infirm person. This itself is a ground to extend him such relief.

10. I, for all such reasons find that his case is one of bail. The petition, therefore, is accepted and he is admitted to bail subject to his furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lac only) with two sureties each in the like amount to the satisfaction of the learned Sessions Judge, Sheikhupura/trial Court.

11. However, I may observe here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on any body's case at trial. N.H.Q./M-555/L Bail allowed.