1996SCMR1081 (PLP)

SAIDUZZAMAN SIDDIQUI, J.

The petitioner has applied for leave to appeal against the order of a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, dated 2-5-1994 whereby the learned Judge dismissed the bail application of the petitioner in a case registered against him under sections 324/148 and 125, P.P.C. The learned counsel for the petitioner contends before us that the name of the petitioner does not appear in the F.I.R. lodged in the case and that two successive Investigating Officers have found that the petitioner was not involved in the commission of the offence. The learned counsel, accordingly, contends that in these circumstances, the petitioner was entitled to bail in the case. The learned counsel for the petitioner contended that the petitioner is 75 years of age, and therefore, on ground of age also he was entitled to the concession of the bail. With regard to first submission of the learned counsel for the petitioner that his client was not named in the F.I.R. lodged in the case and that two successive Investigating Officers in-the case had found him innocent, it would suffice to say that in his earlier application for grant of bail both these points were considered by the learned Judge in Chambers and were repelled. In the order dated 13-7-1993, the learned Judge in Chambers found that in the final investigation in the case, the petitioner was held as the person who master-minded the whole incident and was also found to have inflicted the injury on the vital part of the injured person. The learned counsel admits that against the order of the learned Judge in Chambers ,dated 13-7-1993, no further appeal was filed before this Court. In the second round, when the petitioner applied for grant of bail, the only point urged before the learned Judge in chambers was that the rule of consistency has not been followed but this contention was repelled by the learned Judge in Chambers as follows:-- "I have considered the submission made by the learned counsel for the parties and have perused the record. The earlier bail petition of the petitioner was dismissed by this Court on merit. The only ground raised by the learned counsel for the petitioner is the application of rule of consistency, as Sultan Akbar whose case is stated to be at par with that of the petitioner has also been allowed bail by the learned trial Court but I am afraid, this ground too is not available to the petitioner, as the role attributed to both these accused are totally different. Sultan Akbar co-accused was armed with a Soti and has allegedly caused a simple injury on the nose of Muzaffar Hussain P.W. But as against this, the petitioner was armed with a hatchet and had chosen the head of Sakhawat Hussain P. W. , which in vital part of the body, reflecting thereby that he had no other intention except to launch a murderous assault on his victim. So, it cannot be said that his case is at par with that of Sultan Akbar co-accused, as such, the rule of consistency would not apply in the case in hand. Prima facie, there are reasonable grounds to believe that the petitioner is concerned with the crime alleged against him. In these circumstances, I am not inclined to extend the concession of bail to the petitioner. Accordingly, this petition has no substance and the same is dismissed as such." The learned counsel is unable to point out any infirmity in the above reasoning of the learned Judge in Chambers. However, the learned counsel very vehemently argued that his client is 75 years of age and although this point was raised but the Courts below did not consider this point. From the application for grant of bail it appears that this point was raised by the petitioner but it has not been adverted to by -the trial Court or by the learned Judge in Chambers. In these circumstances, while dismissing the petition for leave to appeal, we leave it open to the petitioner, if it is so available to him under the law, to file bail application on the ground of age before the trial Court. N.H.Q./K-267/5 Leave refused