1989 PLP 4938 (MLD)

This matter has come up in the background of two murders of father and son. It is most unfortunate that the father was murdered 5/6 months earlier than the occurrence when the son Akbar Ali Shah who was on his way to Court in connection with the murder of his father that he was fired at by one Muratab Ali and two other unnamed persons whose identification marks were given in the F.I.R. He died at the spot. The occurrence had taken place at 8‑30 a.m. and the F.I.R was lodged at 9‑15 a.m. the same day viz. 4‑1‑1982. A case under section 302/307, P.P.C. was registered at the Police Station Manga. In the F.I.R., it was stated that Muratab Ali and his two companions had committed the murder at the instance (Emma ) of three named persons, and the petitioner. The F.I.R. was lodged by the brother of the deceased, namely, Sadiq Ali Shah, who also made a supplementary statement before the police the same day giving the motive that the petitioner had asked for vote for somebody and the deceased had declined saying that he could vote for the petitioner but not for his nominee.

2. According to the prosecution, Barkat Shah, uncle on 4‑1‑1982, Mumtaz Shah, sister's husband, and Nawaz Shah and Noor Shah, maternal uncles of the deceased, on 6‑1‑1982, made statements under section 161 Cr.P.C. before the police saying that they had gone to the petitioner to tender apology but the latter had threatened further murders of their family members. Their statements under section 164, Cr. P.C. were also recorded on 11‑1‑1982. After the arrest of two unnamed assailants whose description was given in the F.I.R. on 24‑1‑1982 on the information given by them, four other persons were contacted who made their statements before the police under Section 161, Cr. P.C. on 25‑1‑1982 and under section 164, Cr. P.C. on 26‑1‑1982 implicating the petitioner in the conspiracy of the murder of the deceased Akbar Ali Shah. The petitioner applied for bail before arrest and was allowed interim bail by the learned Additional Sessions Judge on 6‑1‑1982 but the matter was, later on taken up by the learned Sessions Judge who rejected the application for pre‑arrest bail on 27‑1‑1982. The petitioner was arrested and on the orders of a learned Magistrate, he was "admitted in the medical unit No. III of Services Hospital, Lahore through emergency on the complaints of severe chest pain." The Registrar issued a certificate on 31‑1‑82 saying that there is a previous history of ischaemic heart disease. He is likely to stay in the hospital for investigations and treatment. The petitioner thereafter applied for bail before the learned Sessions Judge but his application was dismissed on 3‑2‑1982. Bail was applied for on merits as well as on the ground of being an old heart patient and a certificate of Dr. Shahryar Ahmad Sheikh, Assistant Professor of Cardiology, King Edward Medical College Lahore, was produced showing that his detention will severely affect his health particularly when he is already aged 65 years. The learned Sessions Judge observed that the application for bail on the ground of illness has been filed a day after he had already rejected the pre‑arrest bail application of the petitioner on merits and that the ground of illness was nothing more than a subter fuge. The petitioner has applied for bail in this Court.

3. Learned counsel for the petitioner has vehemently contended that the allegation in the F.I.R. against the petitioner is that the murder of Akbar Shah had been committed at his behest but there was no basis for that. The supplementary statement of the complainant speaks of the motive regarding seeking of vote by the petitioner for a candidate from the deceased, whereas two days later four relatives were produced to say that the petitioner had threatened the commission of murder, and 21 days later; another set of four persons had been procured to speak about the conspiracy of the murder. Learned counsel submits that this kind of evidence can always be collected. Learned counsel submits that the matter ex facie requires further inquiry under subsection (2) of section 497 Cr.P.C. and, therefore, the petitioner is entitled to bail.

4. He has, next, submitted that the petitioner has been sick of heart disease since 1970 and he has produced prescription of Dr. Rauf Yousuf dated 15‑9‑1970 prescribing medicines to the petitioner for the ailment. Alongwith the petition, the petitioner has annexed prescriptions of Dr. Shahryar Ahmad Sheikh, Consultant Cardiologist, King Edward Medical College, Lahore prescribing medicines for the said illness. Another certificate dated 27‑1‑82 by the same doctor has been annexed certifying that the petitioner "has been under my care for heart condition (i.e. ischaemic heart disease and Angina Pectoris, Hypertension). He is presently taking medicines and treatment for the abovementioned condition". Learned counsel has submitted that under the first proviso to section 497, Cr.P.C., the petitioner is entitled to bail being a sick and infirm person. He has placed reliance on Banaras v. The State 1978 S C M R 191, Fateh Mohammad v. Mahmood (1977 P.Cr.L.J. Lahore 393), Abdul Aziz v. Bashir Ahmad and The State (P L D 1966 S C 658) and has also referred to Waheed‑ud‑Din v. Allah Ditta and others (1968 S C M R 82) to submit that Angina Pectoris could have been taken into account for grant of bail if the certificate had been produced.

5. Learned counsel appearing for the State has supported the learned counsel for the complainant. The latter has submitted on merits that F.I.R. could not have contained all the details and, therefore, the non‑mention of the witnesses of the conspiracy is not fatal. He has referred to Fazalur Rahman v. Abdul Ghani and others (P L D 1977 S C 529) and Allah Bux and others v. The State (P L D 1978 S C 171). He has also submitted that under Rule 197 of Pakistan Prisons Rules, 1978, the Superintendent Jail can always get the petitioner treated if an occasion arises.

6. I have heard the learned counsel for the parties at great length and perused the record. The Investigating Officer has read the statements of the two sets of four persons recorded under section 164, Cr.P.C. In view of the fact that the deceased's father was murdered 5/6 months earlier and then the deceased Akbar Ali Shah was himself murdered in a broad daylight while he was travelling in a bus full of people for going to Court, the matter has given great anxiety as to whether the petitioner should at all be allowed the concession of bail. The evidence procured by the prosecution can hardly be adjudged at this stage. Therefore, I am not prepared to consider that the petitioner is entitled to bail on the merits of the case. ??

7. As to whether the petitioner should be allowed bail on the ground of being sick and infirm under the first proviso to section 497, Cr. P.C. it is to be seen that in the case of Banaras v. The State 1978 S C M R 191 wherein Banaras who was alleged to have stabbed the deceased Fazal Din, was allowed bail on the ground that he was suffering from idiopathic epilepsy. The contention of the learned Advocate‑General that Banaras was being treated in the Jail Hospital properly and was, therefore, not entitled to bail, was rejected with the observation that "we are of the opinion that the appellant is suffering from a serious disease and he cannot have treatment of his choice in the Jail Hospital. Besides, fits occur in the disease from which the appellant is suffering, and it will be difficult for the Jail authorities to look after him." In the case of Mohammad Aslam Goraya v. The State (1977 P Cr. L J 394) after rejecting the application for bail on merits on the certificate of a Heart Specialist that Mr. Mohammad Aslam Goraya was suffering from serious heart trouble and that the disease of that nature strikes without much warning and the effective treatment was not possible in jail, he was allowed bail under the aforementioned provision of law. Reliance was placed on Abdul Aziz v. Bashir Ahmad and The State (P L D 1966 S C 658) wherein Abdul Aziz who complained of "palpitation and sinking of the heart" and was getting treatment for a month and a half, was allowed bail by the learned Addl. Sessions Judge and that was cancelled by the High Court. The learned Supreme Court however observed that "where there is reasonable ground for believing that an accused person is guilty 'of an offence punishable with death or transportation for life, bail may yet be granted if he be sick or infirm" ????Order of the learned Addl. S. J. granting bail was restored. In case of Waheed‑ud‑Din v. Allah Ditta (1968 S C M R 82), one Saleem Akhtar had applied for bail on the ground that he had five attacks of Angina Pectoris and he was not receiving proper treatment at the jail. The application was rejected because the plea was not supported by any medical certificate and it was observed that he could have easily filed a certificate of the doctor attached to the jail hospital. However, it was observed that "the petitioner, if so advised, may move a fresh petition for bail on proper materials". In other words, the kind of illness was taken as a ground for grant of bail on a capital charge. In view of these authorities it would appear that a person who is sick or infirm can be granted bail under the first proviso to section 497, Cr. P.C. The learned Sessions Judge formed the view that as the illness was not pleaded for bail in the earlier application for bail before arrest and the fact that the petitioner has been attending meetings of various bodies, the ground of illness was nothing more than a subterfuge. The finding is not well based. From the certificate of Dr. Rauf Yousuf dated 15‑9‑1970 and from the certificates of Dr. Shahryar Ahmad Sheikh, both Heart Specialists, there is no manner of doubt that the petitioner has been having treatment of heart ailment. The fact that he has been attending to his duties as a member of various bodies would not ipso facto show that he was not suffering from the disease. So also the fact that he did not take up this plea at the time of pre‑arrest bail application. The disease is such that fatal attack can come at any time and the detention in jail would obviously be a stress which may hasten the onslaught. The law does not require that a man can be released on bail only if he is suffering from sickness or ailment in a manner that he is likely to die soon, or, cannot be treated in jail or under the supervision of the Jail authorities. The provision is that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of an offence punishable with death or imprisonment for life or ten years may be released on bail. In other words, an accused who is sick or infirm may be allowed bail. The word "infirm",' according to the Concise Oxford Dictionary, 1964, means physically weak especially through age. The petitioner is suffering from 1970 onwards from a heart ailment for which he has been taking treatment and is above the age of 65 years. His case would at least appear to be one of an infirm person. In view of the legal provision and the authorities mentioned above, a case for, bail is clearly made out on account of his long sickness and infirmity. Therefore, the petitioner shall be released on bail provided he furnishes security in the sum of Rs. 50,000 (Fifty thousand) with two sureties in the like amount to the satisfaction of Ilaqa Magistrate/A.C., Lahore. H.B.T./IC‑220/L????????? Bail granted.