' HASNAT AHMAD KHAN, J.--- Sher Muhammad, the petitioner, by submitting this second petition has sought concession of post-arrest bail in the case F.I.R No,360 of 2007, dated 16-8-2007, registered at the Police Station Qadir Abad, District Mandi Bahauddin, in respect of the offences under sections 302/324/148/149, and 34, P. P. C .
2. The first, application filed by the petitioner was dismissed by this Court vide order dated 10-4- 2008, the operative paragraph of which reads as under:--- "Arguments heard. Record perused. The petitioner has been involved in triple murder case by ascribing the role of a commanding Lalkara. Five persons sustained injuries during the occurrence.
The motive ofs the alleged occurrence was a dispute of complainant's niece Mst. Nazia with main accused Zafar over love marriage. The offence falls under the prohibitory clause of section 497, Cr.P.C. Co-accused Mst. Kausar Bibi was empty handed at the time of occurrence and she has been found innocent during investigation. Whereas, Mst. Nazia has not been ascribed any specific role regarding the commission of the offence. They were allowed bail being women. Therefore, the case of the petitioner is not at par with the case of said ladies. As such accused cannot claim bail on the principle of consistency."
3. The Honourable Judge, who had previously refused bail to the petitioner is presently gracing the Rawalpindi Bench of this Court, that is why, this petition has come up before me.
4. The previous application having been dismissed on merits, the petitioner has submitted the instant application for seeking the concession of post-arrest bail on the ground of his old age as well as sickness/ ailment.
5. In pursuance of order dated 28th November, 2008, a Medical Board comprising five doctors, constituted and headed by Medical Superintendent, District Headquarters Hospital, Mandi Bahauddin, after examining the petitioner medically, have submitted their report. The findings and the opinion of the said Board are reproduced as under:--- "About eighty years old man.
' Poorly orientated ' Walks with difficulty due to osteoarthritis, both knee joints.
' Pale looking due to anaemia.
' Shortness of breath on walking due to;- ' Anemia.
' Asthmatic Bronchitis, with cough and yellow sputum.
' Benign Prostatic hypertrophy causing; ' Frequency of micturition ' Poor urinary stream.
' Senile eye change with diminished vision due to impending ' cataract ' His haemoglobin is 5.9 g %, ESR, 70 mm/lst Hr ' Renal and hepatic profile normal.
' EGG- Normal ' Sputum - Negative for AFB ' S. Urine Acid 6 mg (Normal)
OPINION Standing Medical Board is of unanimous opinion that patient is incapacitated due to above given clinical picture."
6. In view of the said report, learned counsel for the petitioner has submitted that petitioner being an old, sick and incapacitated person is entitled to concession of a post-arrest bail under first Proviso to subsection (1) of section 497, Cr.P.C. That in case the bail is not granted to the petitioner, he is likely to die in the jail; that due to the ailment and old age of the petitioner, he requires treatment of his own choice; that only role attributed to the petitioner is that of raising a proverbial Lalkara and that too a joint one; that the contents of the F.1.R itself indicate that indeed it was the complainant party who had attacked the accused in order to retrieve a woman who after eloping with Zafar, co-accused, had married him; that the prosecution has thrown the net very wide by implicating as many as ten people including the ladies and that apart from the petitioner, his four sons also stand implicated in this case.
7. Conversely, learned D.P.-G. Has opposed the bail application on the ground that the previous application having been dismissed on merits, the petitioner cannot re-agitate the matter and that the petitioner can be treated in the jail very well, therefore, this application merits dismissal.
8. Having heard the arguments advanced by both the parties and after going through the relevant documents including the medical report submitted by the standing Medical Board, I have observed that the petitioner is 80 years old. According to the opinion of the said Board, the petitioner has been found to be incapacitated. The opinion of the Board coupled with the findings of the said Board leaves no doubt in my mind that the petitioner is a sick and infirm person. It is true that there is no finding of the Board to the effect that there is a danger of life to the petitioner, yet old age itself brings infirmity and senility with it. At this age and with such a poor physique the petitioner needs a care-taker and treatment of his choice. Admittedly, the petitioner is not the main culprit of the offence.
9. Consequently, considering the old age coupled with his ailment, the petitioner is entitled to have benefit of first proviso to subsection (1) of section 497, Cr.P.C. If any case-law is required, reference can be made to the cases of Mawasi Khan v. The State 1969 SCAR 289, Abdul Jabbar and another v.
The State 1977 SCM R 50, Abdul Shakoor v. The State and 6 others 1982 SCM R 970, Sakhi Muhammad v. The State 1973 PCr.LJ. 397, Khanu and others v. The State 1980 PCr.LJ 316, Budha Manais and another v. The State 1984 PCr.LJ 424, Khushi Muhammad and another v. State PLJ 1999 Cr. C. Lahore 262 and Farid Ahmad Bhatti v. The State 1999 PCr.LJ 1237.
10. For what has been stated above; the application in hand is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in a sum of Rs,2,00,000 (rupees two hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court.