2009 PLP 641 (MLD)

KAZIM ALI MALIK, J.

Seventy years old Mansabdar, petitioner herein, was arrested in a case F.I.R. No.132 of 2007 registered with Police Station Jaatli, District Rawalpindi, on the charge of murder and was declined bail by a learned Additional Sessions Judge, Gujar Khan vide order, dated 28-1-2009. Hence, this bail petition.

2. The prosecution case set up in the F.I.R. in brief, is that on 18-7-2007 at mid night Wajid Iqbal complainant, and his maternal cousin Pervez Akhtar left their village to trace out their two missing buffaloes. They remained unsuccessful. While returning home when they reached within the area of Data Bhit Masood Ahmad, Ehsan, Imran, Tanveer, Idrees (co-accused) and Mansabdar, petitioner/accused, resorted to indiscriminate firing striking Pervez Akhtar, who fell down and passed away. The complainant followed and chased the assailants, but they made good their escape in Jungle while firing. Motive for the occurrence was stated to be previous enmity.

4. The petitioner sought his post arrest bail before the learned Additional Sessions Judge on the following grounds:-- (i) The deceased received only one shot, which had not been specifically attributed to any of the alleged six assailants. (ii) The petitioner being 70 years old and suffering from serious ailment was entitled to bail under Ist proviso to section 497, Cr.P.C. (iii) During the course of investigation the petitioner was found innocent and was placed in column No.2 of the challan. The learned additional Sessions Judge summoned Mansabdar, petitioner, from Judicial Lock-up and also called for a report from the Jail hospital about his state of health. Senior Medical Officer, Central Jail, Rawalpindi medically examined Mansabdar and submitted his report to the following effect:-- "The under trial prisoner is an old man about 70 years old and he is a known case of "Parkinsonism" (Tremors of body). This ailment is long life for which he is taking regular treatment. At present his condition is stable and he is still admitted in Jail Hospital."

5. The petitioner was produced in custody before the learned Additional Sessions Judge, who observed about his state of health as under:-- "He has been produced before the Court on 27-1-2009 and upon his personal appearance it seems that he is old age man with weak health, acute patient of Rasha, due to which his whole body was shivering. Degree of said disease is very much high and because of that the chain of handcuff has injured his wrist and blood was oozing therefrom. Further it appears that he is not properly treated it may prove fatal for him".

6. After having examined the report of Jail doctor, the learned Additional Sessions Judge dismissed the bail petition with an observation:-- "In view of the contents of petition wherein so many diseases suffered by the accused/petitioner are mentioned, observation made by the Court referred to above and report submitted by the Senior Medical Officer, Central Jail, Rawalpindi, I am of the considered view that at present the accused/petitioner is required to be shifted to DHQ, Hospital, Rawalpindi in strict vigilance as he is allegedly involved in heinous offence of murder."

7. At the very outset, I must say that the bail refusing order is arbitrary, perverse and offensive to the established and recognized legal principles governing the subject of post arrest bail. Either the learned additional Sessions Judge did not have adequate knowledge of criminal law or he disposed of the bail petition without application of legal and judicial mind. Admittedly, six accused persons including the petitioner were arrested and lodged in Judicial Lock up in a case in which the deceased received only one fire shot. This is matter of record that the only one firearm injury suffered by the deceased had not been specifically attributed to any of the six accused persons. The complainant and the P.Ws. made a vague and general allegation that the six accused persons including the petitioner resorted to firing in the darkness of night as a result the deceased suffered one fire shot, which proved fatal. In other words six accused persons including the petitioner have been lodged in Judicial Lock up for having caused one injury to the deceased. The learned Additional Sessions Judge did not take into consideration the mode and manner of the incident set up in the F.I.R. 7A. The petitioner is extremely old man. Senior Medical Officer, Jail Hospital found him patient of Parkinsonism. The learned Additional Sessions Judge himself observed that being patient of Parkinsonism (Tremors of body) his whole body was shivering uncontrollably and as a result the iron handcuff injured his wrist joint. It is not understandable as to why extreme old age and bad state of health of the petitioner did not find favour with the learned Additional Sessions Judge while considering his bail plea. 1st proviso of section 497, Cr.P.C. clearly lays down that any sick or infirm person accused of an offence punishable with death or imprisonment for life or imprisonment for 10 years may be released on bail. The learned Additional Sessions Judge withheld the benefit of 1st Proviso to which the petitioner was entitled on account of his extreme old age and bad state of health on the only ground that he was an accused of murder case.

8. I have already observed that as a result of investigation the Investigator found evidence deficient to the extent of the petitioner and consequently placed in column No.2 of final report under section 173, Cr.P.C. Although opinion of the Investigator in favour of the petitioner/accused is neither relevant nor admissible in evidence yet it makes the allegation qua his role doubtful and of further inquiry.

9. At the cost of repetition I bring on record following valid grounds for post arrest bail of the petitioner:-- (i) The petitioner is extremely old man. (ii) He is sick and infirm. (iii) The petitioner has been placed in column No.2 of the challan. (iv) The deceased received only one firearm shot, which had not been attributed specifically to any of the six accused persons. (v) Five co-accused persons are behind the bars and are not petitioners before this Court.

10. For the foregoing reasons I allow this petition and admit Manasabdar, petitioner to bail subject to furnishing a bail bond in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of Trial Court. H.B.T./M-66/L Bail granted.