1997 P Cr (PLP)

S. 497

Penal Code (XLV of 1860), S.302/114

Bail

Age

Old age by itself could not be taken to be a ground for grant of bail but all attending circumstances were to be taken into consideration. Hidayatullah Abbasi for Applicant. Ghulam Moinuddin Baloch for the Complainant. Abdul Ghana Sheikh., Asstt. A.G. This Bail Application has been moved on behalf of the applicant Kadir Bux, who is involved in a case registered with Model Police Station, Badin on 24-3-1994 under section 302/114, P.P.C. The allegations as contained in the F.I.R. show that there had been enmity between parties for the reasons that the accused Kadir Bux who is a Zamindar used to give his land on Harap to one of the brothers of the complainant but subsequently he refused to give the same to his brother the deceased Muhammad Umer saying that deceased as an evil eye in womenfolk of his house. It is also in the F. I. R. that on the day of incident in the early morning when the complainant and his brother were working in their field the accused Kadir Bux alongwith his son Ghulam Rasool came there. The said Ghulam Rasool was carrying single-barrel licensed gun of applicant Kadir Bux and at that time the deceased had gone a little way from the place where they were working for the purpose to ease himself. It is alleged that at that time the applicant instigated his son to kill the deceased and he fired with the gun of his father killing the deceased. The Police after usual investigation has sent up the accused. The bail application was moved on behalf of the applicant, which was rejected and, therefore, this bail application. I have heard Mr. Hidayatullah Abbasi, the learned counsel for the applicant who has submitted that only role attributed to applicant is that of instigation. He has further submitted that the applicant is an old man of sixty five years suffering from Tuberculosis. He has further submitted that in the present circumstances admittedly the accused Ghulam Rasool was carrying a single-barrel gun and after having fired one shot the gun was empty and he could have been apprehended by the complainant who were more in number. The learned counsel has then submitted that the motive alleged against the applicant could be used both ways. He has placed reliance on the case of Hyder v. The State 1990 PCr.LJ

70. Of course, in this case bail was granted to the applicant who was attributed to have given proverbial Lalkara. However, in this case the murder had taken place at the tube-well of one Saleh, who is neither the complainant nor the said tube-well had belonged to the complainant party. The other case relied on by the learned counsel is that of Ashraf v. The State 1988 PCr.LJ 1255. The bail was granted to a person who had not caused any injury to deceased though he was armed with a gun and resorted to firing in the air. In this case the incident is not shown to have been caused at the place of the complainant party nor full details of the case are mentioned in the judgment. Next case referred by the learned counsel is that of Geedo and others v. The State 1986 PCr.LJ 2192, wherein a learned Single Judge of this Court had granted bail to the person who was attributed role having raised Lalkara only. The incident in that case had taken place on the spur of moment and the accused had come to cause dacoity as well which are not the facts as in the present case. The fourth case referred to by the learned counsel is that of Mukhtiar Ahmed v The State 1983 PCr.LJ

641. In this case the bail was granted to one accused who was attributed the role of ineffective firing. It may be observed that in a criminal matter there can hardly be two cases, which can be said to be alike to the extent of the facts of the cases. Each case has to be considered in view of its own attending circumstances and facts. In the present case the facts are that there was enmity between the parties inasmuch as the accused had alleged that the deceased had an evil eyes on the woman folk of his house and, therefore, he has denied to give his land to him on Harap. The incident has taken place adjacent to the fields of the complainant party where they were working in the morning time and the accused and his son had gone there duly armed with the gun. It is argued by the learned A.A.G. that the fact that the son was carrying the gun of the father illegally which he otherwise was not permitted to, would show that the applicant had permitted his son to carry the said gun and they had gone to the fields of the complainant party with the intention of assailing the complainant party. This fact is coupled with the fact of the F.I.R. having been promptly lodged within one hour of the Incident and the name of the accused is mentioned in the F.I.R. and overt act has been attributed to them. From this the learned counsel his submitted that there is enough material on the record to show that they had all the intention to cause fatal injury. As regards the other contention of the learned counsel for the applicant that after having fired one shot gun that was empty and it was possible that the complainants who were greater in number could have caught hold of the accused, the circumstances would show otherwise. According to the learned Assistant Advocate-General the accused Ghulam Rasool, who fired at the deceased was admittedly at a little distance from the complainant party where the deceased is said to have gone to ease himself and the Mashirnama of Wardat shows that the empty cartridges was recovered from the Wardat. From this the learned counsel states that the inference can be drawn is that the accused had emptied the barrel and he could have been re-loading the same and in such circumstances no one would dare to go near him when he had a gun and cartridges with him. As regards last contention raised by the learned counsel about the age. It may be observed that old age by itself cannot be taken to be a ground for grant of bail, but all attending circumstances are to be taken into consideration. The Medical Certificate referred to by the learned counsel which is on the record shows that the present applicant though sixty-five years of age suffers from chronic bronchitis and not tuberculosis as argued. The said certificate also shows that the applicant can be treated in jail In the case of Zareen Khan v. The State 1980 SCMR

305. The Honourable Supreme Court has been pleased to hold that the applicant who was suffering from pulmonary T.B could not be granted bail if he can receive the treatment inside the jail. Reliance may also be placed on the case of Tahir v. The State 1990 PCr.LJ 1198, wherein also it has been held that age by itself cannot be a ground for grant of bail. In this Single Bench judgment of this Court, a number of judgments of High Court and Supreme Court have also been taken into consideration. The upshot of the above discussion is that I am of the view that the present case has no merits and the applicant is not entitled to the grant of bail in the circumstances of the present case. The bail application is rejected. H.B.T./Q-96/K Bail application rejected.