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, S. 497(1), (5) (Bail in case of sick and infirm person)-Accused, in murder case, granted bail by Additional Sessions Judge, which case was in committing Magistrate's Court-Grounds of sickness, and that allegation against accused was only the "shouting of a lalkara " Sickness borne out by Jail doctor's certificate that accused had complained of "palpitation and sinking of the heart" and that he had been receiving treatment for a month and a half-Public Prosecutor's application for cancellation of bail, on ground interference with witnesses, rejected by Additional Sessions Judge Complainant moving petition in High Court for cancellation Petition accepted, High Court noting that case had been committed to the Sessions Court which meant that a prima facie case had been found against accused-Held (selling aside High Court's order) that "where there is reasonable ground for believing that an accused person is guilty of an offence punishable with death or transportation for life, bail may yet be granted if he be sick or infirm, that accused was entitled to rely on medical certificate of the .fail doctor and that he could not be required to file a fresh certificate in the High Court-Lalkara allegations, in absence of earlier conspiracy, were rejected by Courts as frequently as they were made-Additional Sessions Judge was competent to grant bail in such a case-Evidence having been recorded in committing Court, danger of interference with witnesses was "clearly minimised"-[Noor Muhammad v. State P L D 1964 Lah. 464 distinguished].

Art. 58(3) - Leave to appeal to Supreme Court-Granted from High Court's order of cancellation of bail.

Aftab Farrukh, Advocate Supreme Court, instructed by Ghulam Ahmad Attorney for Appellant,

R. Muhammad Anwar, Advocate Supreme Court, instructed by Munir Ahmad Attorney for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing: 14th April 1966.

The facts out of which this appeal by special leave arises are as follows. One Abdul Aziz, an accused person along with others in a murder case, applied for bail in the Sessions Court at Lyallpur, while the case was before a committing Magistrate. The grounds were that Abdul Aziz was a sick man, and secondly, that the allegation against him was totally false. He is aged 55 and it was said only that at the time of the attack, he had shouted a lalkara. An Additional Sessions Judge obtained a report from the Jail Medical Officer on the physical condition of Abdul Aziz. It was to the effect that Abdul Aziz had complained of "palpitation and sinking of the heart" and that he had been receiving treatment for a month and a half. The Additional Sessions Judge granted him bail, believing that he was sick and mentioning that he was not said to have caused any injury. At a later stage and while the commitment proceedings were yet unfinished, the Public Prosecutor applied for cancellation of Abdul Aziz's bail on the ground that he had been threatening witnesses. Affidavits of three persons were led in support. Abdul Aziz denied these allegations and it was urged on his behalf that they were only made to harass and disgrace him. The Additional Sessions Judge rejected this application by means of an order in which he repeated that earlier bail had been granted on two grounds, firstly, that he was "undoubtedly ill and required medical treatment" and secondly, that the only allegation against him was that he had shouted a lalkara. Observing that evidence of seven witnesses had already been recorded by the committing Magistrate and that of the remaining witnesses one was a true brother of Abdul Aziz, the Additional Sessions Judge discounted the allegation of threats to witnesses, which he said were commonly made in Courts and he further noted that relations between the parties were admittedly strained. The complainant then moved the High Court for cancellation of the bail granted to Abdul Aziz. A learned Single Judge accepted the petition. He noted that the case had been committed to Sessions, which meant that a prima facie case had been found against Abdul Aziz, It was argued for the latter that the High Court had unfettered discretion to grant bail even to a person committed for trial on a capital charge, and a judgment of the High Court was cited in support. The learned Judge, however, preferred to rely on another similar judgment, namely, that in the case of Noor Muhammad (P L D 1964 Lah. 464) which being by a Division Bench was, he thought, binding on him. He observed also that counsel for Abdul Aziz bad failed to satisfy him that the case fell within the proviso to section 497 (1), Cr. P. C. Special leave was given to Abdul Aziz to appeal against this order and he was granted interim bail after he had appeared in Court and an impression was gained that he was a man of considerable age and not in good health. We have heard Mr. Aftab Farrukh for the appellant Abdul Aziz and Mr. R. Muhammad Anwar has replied on behalf of the complainant, Bashir Ahmad.

The case of Noor Muhammad cited above, was one where a committing Magistrate had cancelled bail granted to an accused person by a Sessions Court, when he committed the said accused for trial. The present is not a case of that kind. A reference to section 497 (5), Cr. P. C. will show that only the High Court and a Sessions Court may cancel bail granted by any other Court.

The order of the learned Single Judge does not show such an appreciation as might have been expected of the reasons which had prevailed with the Additional Sessions Judge in granting bail. In a case where there is reasonable ground for believing that an accused person is guilty of an offence punishable with death or with transportation for life, bail may yet be granted if he be sick or infirm, and the Additional Sessions Judge bad recorded a clear finding to that effect. It was not a finding based on his opinion. It was founded on a report of a Medical Officer certifying that Abdul Aziz had been under treatment for an ailment for a month and a halt: We are informed that at B the hearing before the learned Single Judge, counsel appearing for Abdul Aziz was asked why he had not produced a medicate certificate. Mr. Aftab Farrukh states that he had relied on the, report of the Jail doctor, which he thought would be sufficient and therefore, had not added a certificate from any other doctor. In holding that view, he was clearly justified. A reference to the two orders made by the Additional Sessions Judge should have been sufficient to satisfy the learned Single Judge that Abdul Aziz was indeed a sick and infirm man.

The judgment of the High Court also does not deal with the view expressed by the Additional Sessions Judge as to the nature of the accusation against Abdul Aziz. Death had been caused by violence, but Abdul Aziz was charged only with uttering a lalkara. Such allegations are very frequently made, and Courts are found to reject them with almost equal frequency, in the absence of anything to indicate an earlier conspiracy. Therefore, when the Additional Sessions Judge emphasised that only a lalkara was attributed to Abdul Aziz, he was in effect saying that the evidence to that effect was not a reasonable ground for holding that Abdul Aziz was guilty of an offence punishable with death or with transportation for life, and there was no other evidence on which such a conclusion could be founded. Under section 497 (1), Cr. P. C. a Sessions Court is competent to grant bail in such a case.

The order of the High Court says nothing regarding the allegation of interference with witnesses. Evidence having been recorded in the committing Court, the danger of interference with witnesses is clearly minimised. Moreover, the Additional D Sessions Judge after hearing the parties and considering the evidence came to the clear conclusion that the allegation interference was not worthy of reliance.

In these circumstances, the order of the learned Single Judge cannot be upheld. The action of the Additional Sessions Judge in granting bail was intra vires, and on the facts completely justifiable. We allow this appeal, and setting aside the order made by the learned Single Judge, restore the order of the Additional Sessions Judge granting bail to Abdul Aziz.

A. H. Appeal allowed.

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