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Criminal Miscellaneous No. 5205 of 1968, decided on 25th October 1968.

S. 497, proviso ---Bail in non-bailable offence‑Offence under S. 302, P. P. C.‑One of accused aged 55/60 years suffering from chronic bronchitis and another aged 16 years stated to be empty handed at time of occurrence‑Cases of both accused, held, fall under proviso to S. 497‑Both accused, though indicted for offence punishable with death or transportation for life, admitted to bail.

Riasat Ali v. Ghulam Muhammad and another P L D 1968 S C 353 ref:

S. 497‑Bail in non- bailable offence‑Accused aged 18 years, alleged to have parti cipated in crime of murder and his presence at spot enough to attract application of S. 34, P. P. C.‑Bail application dismissed.

Yusuf Ali Khan for Petitioners.

Muhammad Hanif Niazi for the State.

This is an application for grant of bail on behalf of Abdul Ghani, Ahmad Ali and Rashid son of Dara. ,A case under sections 302/149 and 148, P. P. C. is pending in the Court of Circle Magistrate, Lyallpur.

2. It is stated by the prosecution that on 4th of February 1968, at about 8/9 a. m. Ghulam Rasul deceased and Mukhtar P. W. were ploughing their fields. The petitioners along with Kamal Din, Rashid Ahmad son of Ali Muhammad and Hassan son of Bulanda formed an unlawful assembly with the common object of murdering Ghulam Rasul and in prosecution of the common object of the said unlawful assembly committed his murder. It is said that Abdul Ghani, Kamal Din, Rashid Ahmad and Hassan were armed with sticks while Ahmad and Rashid were empty handed.

3. From the record placed before me it is obvious that Abdul Ghani, Kamal, Rashid and Hassan inflicted stick blows on the deceased while the part attributed to Ahmad Ali and Rashid is that they held him.

4. Mr. Yusuf Ali Khan, learned counsel for the petitioners stoutly contended that despite various opportunities the complainant Ghulam Rasul has not turned up and is evading appearance before the committing Magistrate, resulting inordinate delay in the trial of the case.

5. The case was registered on 4th February 1968, and the challan was put in the Court on the 17th February 1968. The prosecution cited 19 witnesses in the calendar of witnesses. Out of them 15 have been examined and four of the prosecution witnesses including the complainant, Ghulam Rasul, who is the real brother of the deceased, are yet to be examined. It is now well‑settled that it is the right of an accused to ask for a speedy trial and in case the prosecution without any cogent reason withholds the evidence he has a right to say that he should be admitted to bail. In Riasat Ali v. Ghulam Muhammad and another (PLD 1968 S C 353), Mr. Justice Sajjad Ahmad observed as under:‑

"Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it . . . . . . ".

In the instant case, Abdul Ghani according to the report of the Medical Officer, District Jail, Lyallpur, is aged 55/60 years and is a weak person. In his report the doctor has said that th4. under trial gets vertigo attack off and on. In another report dated the 22nd May 1968 the Medical Officer had opined as follows:‑

...... Examination of chest shows coavee ereption, move marks on the right lower zone, suggesting chronic bronchitis. There is also sticky foul expectation occasionally he sufferes from difficulty of breathing, usually at night. To best of my knowledge he suffers from chronic bronchitis and bronchial asthama. He is also anamic."

In face of these medical reports it can be said that Abdul Ghani is a sick and infirm person. Rashid son of Oara has been described about 16 years of age by the Medical Officer, District Jail, Lyallpur. He was also stated to be empty‑handed at the time of occurrence.

6. Proviso to section 497, Cr. P. C. provides a special treatment to sick and infirm persons and persons under the age of 16 years. As such, the case of Abdul Ghani and Rashid son of Dara falls in that category and it is open to this Court to admit persons of that category to bail even if they are indicted in a case where the punishment provided is death or transportation for life.

7. As to Ahmad Ali, the Medical Officer has opined that he is of 18 years of age and according to the prosecution he participated in the crime of murder. His presence at the spot is B enough to attract the application of section 34, P. P. C. . . . No good ground has been made out to admit him to bail. His bail application is dismissed.

8. Considering all the circumstances of the case I admit Abdul Ghani and Rashid son of Dara to bail in the sum of Rs. 10,000 (ten thousand) with one surety each in the like amount to the satisfaction of the A. D. M., Lyallpur, pending the decision of the case against them.

Order accordingly.

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