1999 PLP 441 (MLD)

The second shot was fired by co-accused Qaisar Abbas (not a petitioner) at Farroq P. W. Co-accused Dost Muhammad (not a petitioner) who was allegedly armed with a club (sota) inflicted an injury on the head of Farooq P.W. The third shot was fired by co-accused Liaquat (not a petitioner) on his name sake Liaquat deceased who also died at the spot. Thereafter, Allah Ditta inflicted butt blows on Liaquat and broke his teeth. Finally, Iqbal petitioner gave sota blows upon Mazhar's hands. It is also mentioned in the First Information Report that some of the accused persons also sustained minor injuries.

5. Out of the total 10 accused in this case four accused suffered injuries. Afzal Khan suffered fire-arm injuries. Dost Muhammad had an incised wound on the skull. Liaquat had lacerated wound on 'the skull and Ramzan suffered an incised wound on the skull and multiple bruises.

6. Learned counsel for the petitioners submitted that four accused persons suffered injuries; that this was clearly a case of counter versions; that admittedly both the deceased were armed with fire-arms; that the occurrence took place near the house of Muhammad Khan petitioner; that there is no injury on Liaquat's mouth which is attributed to Allah Ditta and finally that the only injury attributed to Iqbal is a simple injury on the wrist of Mazhar Abbas P.W.

7. As against that, learned counsel for the State submitted that the First Information Report had been lodged promptly; that specific roles were attributed to the petitioners; that they were vicariously liable and that recoveries had been effected and that all of them are named in the First Information Report.

8. Learned counsel for the complainant submitted that the challan has been submitted in Court and the case is now ripe for trial and at this stage the merits of the case should not be discussed and places reliance upon the following cases:-- "Muhammad Sadiq and others v. The State (1980 SCMR 203), Allah Ditta and others v. The State (1990 SCMR 307), Mian Dad v. The State and another (1992 SCMR 1418) and Said Akbar and another v. Gul Akbar and another (1996 SCMR 931)"

9. There is no cavil with the proposition that while granting or refusing to grant bail, the merits of the case should not be discussed much less decided lest it prejudice the case of either the prosecution or the defence. However, since the grant or refusal of bail is necessarily a judicial exercise of discretion which has A to be exercised judiciously, therefore, it is incumbent upon Courts to make a tentative assessment of the material collected by both the prosecution and the defence.

10. Muhammad Khan petitioner in Criminal Miscellaneous No.714-B of 1998 is admittedly an old man of about 70/75 years and is clearly entitled to the e benefit of first proviso to section 497 of Code of Criminal Procedure which provides that the Court may direct that any person under the age of 16 years any woman or any sick or infirm person accused of such an offence be released on bail. Age is a consideration in the proviso which takes cognizance of extreme youth by mentioning the age of under 16 and it also takes cognizance of extreme old age or senility by mentioning the word infirm as distinguished from sickness because the phrase used is "sick or infirm"old age or senility by itself tentamounts to infirmity. Besides, no role is ascribed to this old man in the First Information Report. We will not make any observation about the supplementary statement and leave it for the trial Court to come to its own conclusion. Suffice it to say that reasonable grounds to believe that Muhammad Khan petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, prima facie, do not seem to exist. However, the case against him may be a matter of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. which entitles him to the grant of bail besides his extreme old age which entitles him to the benefit of first proviso to subsection (1) of section 497, Cr.P.C.

11. Resultantly, Muhammad Khan petitioner is granted bail provided he furnishes bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the trial Court.

12. Allah Ditta petitioner in Criminal Miscellaneous. 914-B of 1998 is a young man who was armed with a 30 bore pistol with which he inflicted a blow on the mouth of Liaquat deceased. We are not willing to discuss his case any further and leave it for the trial Court to come to its own conclusions after recording the evidence. Therefore, the petition of Allah Ditta petitioner for the grant of bail is dismissed.

13. Iqbal petitioner in Criminal Miscellaneous. 914-B/98 is a young lad of, about 17 years and is said to have caused a simple injury on the wrist of Mazhar P.W. which, prima facie, does not seem to fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. however, there may be grounds for further inquiry against him within the meaning of subsection (2) of section 497, Cr.P.C. which entitles him to the grant of bail. Resultantly, Iqbal petitioner in Criminal Miscellaneous 914-B of.1998 is granted bail provided he furnishes bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of trial Court. N.H.Q/M/713/L Order accordingly