1984 P Cr (PLP)

This is an application for cancellation of bail granted to Mapal and Khan, Respondents 2 and 3 by the learned Sessions Judge, Multan vide his order dated 2nd September, 1982.

2. The prosecution case is that the respondents with five others in furtherance of their common object caused the death of Sher Khan on 30th April, 1982 in Mauza Danghra of Police Station, Tulamba. As for respondents 2 and 3 it has been alleged that they were armed with chhuras Mapal, respondent No. 2 caused three injuries on the person of the deceased out of which two were caused on his chest. Khan, respondent caused two injuries with chhura on the person of the deceased.

3. Learned counsel for the petitioner submits that since respondents 2 and 3 have allegedly caused injuries to the deceased they have been allowed bail by the learned Sessions Judge, without legal justification.

4. Learned counsel for the respondents, however, vehemently deferr ed the order of the learned Sessions Judge granting bail to the respondents Nos. 2 and

3. He submitted that since the plea of alibi raised by these respondents has been accepted by one out of the three Investigating Officers and the respondents being old and infirm persons, they have rightly been allowed bail.

5. After hearing the learned counsel and going through the record I find that the deceased received as many as 23 injuries on his person. It has been alleged that Mapal caused three injuries with his chhura whereas Khan, respondent caused two injuries with chhura on the person of the deceased. The learned Sessions Judge while granting bail to the respon dents has stated "So far as the other plea is concerned it must prevail because both the petitioners (petitioners Nos. 1 and 2) look to be above 60 years, Mapal is also very senile and Khan is also not very robust in health. Furthermore, I am informed by Abid Hussain S. I. with record that petitioners-party- bad shifted, their residence to another place a day before the occurrence and from a distance of one mile came to the spot to throw an ambush and to commit the murder. So, the argument can be raised that the petitioners had the intention and were a party to, the conspiracy to commit the murder but in view of their old age and physiques I do not think that they would have been happy companions to join in the actual ambush at a distance of one mile from the place of their abode. So, in view of their age and physical condition petitioners Nos. 1 and 2 are allowed bail in the sum of Rs. 25,000 each with two sureties each in the like amount to the satisfaction of this Court, while the bail petition of Ramzan is rejected." I further find that respondents Nos. 2 and 3 were not got medically examined as to their age and infirmity. Furthermore mere old age and the physical condition observed by the learned Sessions Judge, without medical opinion is not a good ground to release the respondents on bail is a case which falls within the prohibitory clause of section 497, Cr. P. C. The mere fact that one out of the three Investigating Officers had accepted the plea A of alibi of the respondents is not sufficient to refuse cancellation of bail wrongly granted to the respondents.

6. For what has been stated above the bail granted to respondents 2 and 3 by the learned Sessions Judge vide his order dated 2nd September, 1982 is hereby cancelled. They shall be taken into custody and detained in the jail as under-trial prisoners. S. G. D. Order accordingly.