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Criminal Appeal No. 30 of 1976, decided on 13th May 1976.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated the 16th March 1976, in Criminal Miscellaneous No. 973‑B of 1976).
‑‑ S. 497(1), proviso‑Bail‑Accused an old man, 70 years of age and not responsible for causing fatal blow but such blow caused by his son‑Accused appellant, held, could, in circumstances, be regarded as an infirm person and his case covered by proviso to subsection (1) of S. 497‑Bail allowed.
M. Abdus Saleem, Advocate Supreme Court instructed by Ismat Ali Naseem, Advocate‑ on‑Record for Appellants.
Riaz Ahmad Shaikh, Assistant Advocate‑General, Punjab, instructed by Ijaz Ali Shaikh, Advocate‑on‑Record for the State.
Date of hearing : 13th May 1976.
The appellants stand charged under section 302 read with 34 of the Pakistan Penal Code for committing the murder of Muhammad Azam on 31‑12‑1974 at digarwela. It is alleged that while the deceased along with his brother Muhammad Hanif, were proceeding on a bicycle from Qasba Sarai Alamgir towards village Maroli, they were attacked by the appellants, Mst. Sardar Bibi wife of Abdul Sattar and Mst. Naseem Bibi wife of Abdul Jabbar. Abdul Jabbar who was armed with a knife, caused a fatal injury on the deceased while Abdul Sattar gave a barchhi blow. Mst. Sardar Bibi who was armed with a lathi also caused lathi blows. In the incident Muhammad Hanif was injured and so was his sister Farzana Begum who had intervened to save the deceased. The petitioners also suffered injuries. At least one injury on Abdul Jabbar was stated to have been caused by a sharp edged weapon. The report of the incident was lodged by Muhammad Hanif at Police Station Sarai Alamgir on 1‑1‑1975 at 8‑00 a.m. The appellants were arrested the same day and after the usual investigation a challan was presented in the Court of the Committing Magistrate in which Court some witnesses were examined but now the case stands transferred to the Court of Session for trial in view of the procedural amendment by which Committing Proceed ings have been dispensed with.
The two ladies namely, Mst. Sardar Bibi and Mst. Naseenr Bibi are already on bail. The appellants applied for bail and the learned Sessions Judge, Gujrat by order dated 14‑2‑1976 rejected the application. The appellants then moved the Lahore High Court for bail and a learned Single Judge by order dated 16‑3‑1976, dismissed the application. The appellants: now seek leave to appeal against that order.
Learned counsel for the appellants pressed for bail firstly on the ground of delay which is likely to ensue in the disposal of the case and secondly, in so far as appellant Abdul Sattar was concerned, it was urged that he was au old man of 70 years and that the fatal blow was caused by his son Abdul Jabbar. After the hearing the appellants' counsel, we sent for the Assistant Advocate General to find out if he would oppose the grant of bail to Abdus Sattar.
He appeared and after examining the record stated that he would oppose the grant of bail to both the appellants. Since we have heard the Assistant Advocate‑General, we would convert the petition into an appeal and dispose it of. We are not inclined to consider the delay as a ground for bail as there is likelihood of Additional Sessions Judges being appointed in the near future) to dispose of the cases. However, the case of Abdus Sattar is on a different footing for he is an old man of 70 years and there is also the additional reason that it was his son Abdul Jabbar who had caused the fatal blow. His case would be covered by the proviso to subsection (1) of section 497, Cr. P. C. for he can well be regarded as an infirm person considering his advanced age.
We would allow him bail and direct that he should execute P. R. in the sum of Rs. 10,000 and furnish one surety in the like amount to the satisfaction of the Sessions Judge, Gujrat. The bail to Abdul Jabbar is refused.
Subject to the above, the appeal is allowed.
Appeal partly allowed.
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