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Criminal Miscellaneous No.1816-B of 1986, decided on 16th July, 1986.

---S.497(1), first proviso--Penal Code (XLV of 1860), S.302/34--Bail, grant of--Co-accused granted bail by Sessions Court who declined bail to accused although case against him was identical--Accused old man of 70 and his case covered by first proviso to subsection (1) of S.497, Cr.P.C.--Bail granted in circumstances.

Sakhi Muhammad's case 1973 P Cr.L J 397 rel.

Maqbool Elahi Malik for Petitioners.

Sardar Muhammad for the State.

Muhammad Khan and Ghulam Hyder with three others are accused, of having committed the murder of one Said Muhammad at 11 a.m., on 17-9-1985 in Mari Warraichan within the jurisdiction of police station Jalalpur Jattan, district Gujrat.

2. Muhammad Hussain, complainant, brother of Said Muhammad deceased, reported at police station Jalalpur Jattan that on the day of occurrence (17-9-1985) at 8 a.m. , he alongwith his nephew Muhammad Akram went, for paying homage; to the shrine of late Syed Gul Hussain Shah in Mari Warraichan. Reaching there he found his brother Said Muhammad (deceased) lying on a cot under a Shahtoot tree and his gun was hanging with the tree. When they came out of the shrine at 11 a.m., they saw a white car which stopped near them. From this car, the two petitioners, namely, Muhammad Khan (aged 71 years) and Ghulam Hyder (aged 68 years) with Ghazanfar Ali and Zia Ullah all armed with .12 bore guns and Sikandar with a rifle came out. Ghazanfar Ali took the gun of Said Muhammad (deceased) which was hanging with the tree and shouted at him to get up for they (accused) had come to take revenge of the murder of his father Ahmad Khan and uncle Bahawal. Said Muhammad got up and started running towards the Dera of Syed Ashiq Hussain to save his life. The accused pursued him. Ghazanfar Ali fired a shot at him which went amiss. Then Zia Ullah fired at him which hit the right side of his abdomen but Said Muhammad kept running in a bent position. Ghazanfar Ali fired another shot which hit Said Muhammad on the face as a result of which he fell down. Thereafter all the accused fired at him as a result of which he died at the spot. The accused party then escaped in the car. The motive for the attack was stated to be that Ghazanfar Ali's father Ahmad Khan and his uncle Bahawal were murdered 15 years ago. Said Muhammad was challaned among other accused and was convicted and sentenced but on appeal he was acquitted, therefore, the accused party attacked and killed him.

3. During the investigation a large number of persons appeared in defence of the two petitioners and their co-accused Sikandar and talked about their innocence. However, ultimately all the accused were challaned to Court. They applied for bail and the Sessions Judge allowed bail to Sikandar but declined this relief to petitioners, hence this application.

4. Learned counsel for the petitioners has argued that a large number of persons have appeared during the investigation and stated that petitioners and their co-accused Sikandar had not taken part in the occurrence. Some of the witnesses stated that the two petitioners were present with them in a village bank (about two miles away from the spot) at the time of occurrence and that they have been falsely implicated by the complainant party. He further argued that according to the police record the petitioners are 72/73 years old and according to the identity card Ghulam Hyder's year of birth is 1918 so he is 68 years old while Muhammad Khan, petitioner, who was discharged from the Army on 3-10-1947 at the age of 32 years is 71 years old now, therefore, they being pretty old are "infirm" and are entitled to the grant of bail under first proviso to subsection (1) of section 497 Cr.P.C. Learned State counsel has opposed the petition.

5. No doubt that certain persons talked, about non-participation of the petitioners in the occurrence but they are not eye-witnesses of the occurrence. The evidence of alibi is oral and not documentary: The learned lower Court granted bail to Sikandar but declined this concession to the petitioners though their case apparently is identical. As for the age, I find that both Muhammad Khan and Ghulam Hyder, petitioners, are old men of about 70 years age each. Old age brings in senility and infirmity. To my mind, their case is covered by first proviso to subsection (1) of section 497 Cr.P.C. I am fortified in my view by Sakhi Muhammad's case 1973 P Cr. L J .397 wherein his Lordship Mr. Justice Aslam Riaz Hussain (now Judge, Supreme Court) had observed as follows:-

"The petitioner is present in Court and I notice that he is indeed a very old man and his age could be anywhere between 68 to 70 years. Although according to the medical report he does not suffer from any ailment of the heart and has not been found to be clinically ill, yet we all know that old age itself brings infirmity and senility with it."

7. For what has gone above, I feel inclined to allow this petition. The petitioners are directed to be released subject to their furnishing bail-bonds in the sum of Rs.50,000 with two sureties cash in like amount each to the satisfaction of A.C./Duty Magistrate, Gujrat.

M. Y. H./M-254/L Bail granted.

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