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Criminal Miscellaneous Nos. 1501/13 and 1637/13 of 1980, decided on 14^thJune, 1980.

‑‑--S. 497 (1), proviso --‑ Sickness‑Bail --‑ Medical Superintendent examining petitioner aged 63/64 years and finding him suffering from Bronchial Asthama with moderate degree of anaemia‑Petitioner's case, held, covered by proviso to subsection (1) of S. 497, Cr. P. C.‑Penal Code (XLV of 1860), S. 302/307 etc.

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‑‑ S. 497 (1), proviso‑Sickness‑Bail‑Petitioner aged about 52/53 years having ununited fracture of right forearm requiring operative treatment in hospital‑Grant of bail on capital charges merely on such fact, held, not justified.

Raja Muhammad Safdar for Petitioners.

Malik Hamed Mahmood for the State.

This order disposes of Crl. Misc. No. 1501‑B/80 and Cr. Misc. No. 1637‑B/80, as both arise out bf the same matter.

2. The petitioners have been sent up under section 3021307/325/170/ 148/149/342/452/34, P. P. C. by Police Station Karianwala for the murder of Muhammad Sbafi and attempted murder of Muhammad Malik. All the seven petitioners in both the petitions are specifically named in the first information report as the assailants and it is specifically alleged that after Muhammad Shafi deceased fell down the petitioners inflicted injuries with sticks and butts of the guns on the person of Muhammad Shafi as well as that of Muhammad Malik, the son of the complainant. The deceased has quite a few blunt weapon injuries on his person and Muhammad Malik has suffered a fracture of the lgg, and he names the petitioners as the participants. At this stage I would not go into the appreciation of the arguments that the petitioners except Liaquat were not named by the two witnesses in their statements recorded on the 19th but named only in the supplementary statements recorded on the 29th i.e. after the death of Muhammad Shaft, suffice it to say that they arc named in the first information report by the first informant 1. e, Sardar. It will be premature to decide the points of fact being raised by the learned counsel for the petitioners as the evidence is yet to be recorded, It has been argued that according to subsequent investigations the petitioners were found to be not guilty though they had been sent up for trial. This Court is not bound by the findings of the investigation agencies. Each case proceeds on its own facts. However, the case of Ghulam Rasul petitioner is distinguishable. According to the Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat, who examined him under the orders of this Court, found him suffering from Bronchial Asthama and was about 63‑64 years old with moderate degree of Anaemia. I am of the view that his case is covered by proviso to subsection (1) of section 497 of the Code of Criminal Procedure. He is admitted to bail in the sum of Rs. 10,000 (Rs. ten thousand) with two sureties each in the like amount to the satisfaction of A. C./Duty Magistrate, Gujrat.

The case of Barkat Ali petitioner is not covered by proviso to sub section (1) of section 497 of the Cr. P. Code as he is aged about 52.53 years and the mere fact that he has ununited fracture of right forearm which requires operative treatment in the hospital, would not justify the grant of bail in a case on capital charge, If so advised, the Superin tendent, District Jail, Gujrat, under the rules, can have him treated from a better hospital. The result is that bail application qua Ghulam Rasul petitioner is allowed while the application qua the other six petitioner stands rejected,

Order accordingly,

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