1. MUHAMMAD HALEEM, J.-The petitioner seeks cancellation of bail granted to Abdul Hameed by the High Court of Sind by order dated 23rd of January, 1979.
2. A case against Abdul Hameed, Rashidullah, Imdadullah, Sibghatullah, Kifa--yatullah, Zabiullah and Hamidullah was registered at Police Station Baberloi under sections 147, 148 and 302 read with section 149 P. P. C., and sec--petition 13-D of the Arms Ordinance on 23rd of June, 1977, for the murder of Qazi Abdullah in front of his house by fire-arms, on the basis of the F. I. R. Lodged by the petitioner. The prosecution case is that there was some dispute over the management of a Madrassa between the parties. On the above date at 9 p. m. While the petitioner was sitting in the Otak of the deceased along--with, Saifullah Arbab Lungah and Abdullah son of Walidad, a call was heard, from outside upon which the deceased went out to find out as to who had come followed by the petitioner and the other three persons. They saw in the light of the street lamp Rashidullah, Abdul Hameed and Imdadullah armed with guns; Sibghatullah and Zabiullah holding revolvers; and Kifayatullah and Hameedullah carrying hatchets. On seeing the deceased Rashidullah and Abdul Hameed fired their guns at him causing injuries on his stomach and arm as a result of which he fell down. The others armed with fire-arms fired in the air while those with hatchets brandished their weapons threateningly. There--after they decamped and the petitioner hastily left to lodged the report.
3. From the spot two crime empties were recovered and we were informed at the Bar that fire-arms were also produced by Abdul Hameed, Rashidullah and some others.
4. Both Rashidullah and Abdul Hameed applied for bail in the Court of Sessions and their plea was rejected on merits by the Sessions Judge on 5th of July, 1978. Again they repeated the application for bail before the same Court and an Additional Sessions Judge rejected it by order dated 23rd of December, 1978. Abdul Hameed in none of the applications urged for bail on the ground of illness although he had obtained medical certificates from two Civil Surgeons dated 3rd of August, 1977 and 7th of November, 1978. The nature of illness in the certificates is described as "Diabetese Mellitis" and in the first certificate it is further stated that the disease is controllable and his detention in Jail is not detrimental to his life. The second report is identical with an added suggestion that he should be kept in Jail where he can be under medical supervision.
5. Consequent upon the refusal of bail, Rashidullah and Abdul Hameed filed an application in the High Court for bail. At the hearing the learned counsel for Rashidullah stated that he would not press bail in his case. He, however, urged for bail for Abdul Hameed on the basis of the aforementioned certificates contending at the same time that being a diabetic patient he needed constant care and special diet which facilities were not available in Jail. His case, according to him, was covered by the proviso to subsection (1) of section 497, Cr. P. C. He also urged that as there was delay in the trial, this ground should also be taken into consideration. In support of his contentions he relied on Banaras v. The State (1978SCMR191), Sher Zaman v. Muhammad Jamil and another (1978SCMR 248), Riasat A.I v. The State (PLD 1977 SC 480) and Abdul Hameed and an-- other v. The State (Criminal Appeal No. K-7 of 1978). The learned Assistant Advocate-General. Sind, Mr. Mazhar Hassan A.I, conceded bail "in view of the sickness of the applicant Abdul Hameed and the aforecited cases". The High Court acted on his concession and allowed bail to Abdul Hameed.
6. Accordingly, we would not interfere with the order of the High Court. But while dismissing the petition we would observe that the petitioner will be free to apply for the cancellation of his bail in case he is found suborning the prosecution evidence.