' SHAHID ANWAR BAJWA, J.---Mr. Maqbool Ahmed Awan files Vakalatnama for the complainant.
F.I,R. No,30 of 2011 was recorded at Police Station, Khanwahan on 14-3-2011 at 2-00 p.m. For an incident alleged to have taken place at ,1230 hours of the same day. Complainant stated that he had his own agricultural land. His nephew Muhammad Asif was residing in another village and another nephew Ashraf was residing with him. On the fateful day, Asif came to village of complainant on motorcycle. There was already a blood feud between Sher Muhammad and the complainant and a dispute between Sher Muhammad and Muhammad Ashraf was going on over landed property. Sher Muhammad (applicant in Criminal B.A. 1047 of 2011, hereinafter referred to as Sher Muhammad) had been giving threats to Ashraf. Ashraf and Asif, the two deceased persons, left together on motorcycle and the complainant along with three others followed on a car. On the way, suddenly, nine armed persons came out of a mango garden and encircles Ashraf and Asif.
Out of those nine, Sher Muhammad and Muhammad Din (applicant in Cr. B.A 409 of 2011) were identified as were others. One co-accused gave a Hakal to Ashraf. Meanwhile, Ashraf and Asif got down from the motorcycle. It is alleged in the F.I.R. That Sher Muhammad and co-accused Niaz Hussain fired from repeater and rifle respectively upon Ashraf. Ashraf fell down. Two other co- accused fired from their repeaters upon Asif, who also fell down. Other co-accused aimed weapons at the complainant party but the complainant party, by falling down, saved itself. Firearm reports attracted other relatives and accused persons went away raising slogans. Both Asif and Ashraf died at the spot. Consequently, F.I.R. Was lodged.
2. Applicant Muhammad Din was granted interim pre-arrest bail vide order dated 10-5-2011 while Sher Muhammad has filed post arrest bail application.
3. Mr. A.R. Faruq Pirzada, learned counsel for Muhammad Din, made the following submissions:--
(1) Police, in its investigation, found only three absconders including Tanveer Hussain and Tarique Hussain, as implicated and declared other six as innocent. Judicial Magistrate disagreed with the Police report and on 29-3-2011, ordered that all the nine accused be challaned and that their warrants be issued. Learned counsel submitted that such order has been challenged in a Criminal Miscellaneous Application, which is still pending.
(2) On an application by the complainant, re-investigation was conducted by Crime Branch, Sukkur. In such re-investigation, seven persons were found innocent and only two, none of them being the present applicants, were found involved.
(3) No, specific role has been alleged against Muhammad Din and at best, case against him is of ineffective firing.
(4) Muhammad Din is an Advocate by profession. Learned counsel submitted that he is innocent and has been falsely involved. He obtained protective bail from this Court and surrendered himself before the trial Court, which initially granted him interim pre-arrest bail, but bail application was subsequently dismissed and then he approached this Court and this Court granted him interim pre-arrest bail, vide order referred to above. Learned counsel relied upon Muhammad Nazeer v.
Master Muhammad Gul and another, 1992 PCr.LJ 674, Muhammad Hashim Khoso v. The State, 2011 PCr.LJ 1580, Meeran Bux v. The State and another, PLD 1989 SC 347 and Amir Ali v. The State, 1984 SCMR 521.
(5) Learned, counsel relied upon Haji Rehmat Khan v. The State, 1968 PCr.LJ 1905, Amir Ali and others v. The State, 1984 SCMR 521 and Nazir Ahmed v. The State, 1993 SCMR 1993.
(6) In respect of ineffective firing, learned counsel relied upon Ali Nawaz v. The State, 2001 YLR 341, Muhammad Sadiq v. The State, 1996 SCMR 1654, Abdul Rehman v. Javed, 2002 SCMR 1415, Muhammad v. The State, 998 SCMR 454 and Faraz. Akram v. The State, 1999 SCMR 1360.
(7) In respect of Lalkara, learned counsel relied upon Amanat Ali v. The State, 1993 SCMR 1992 and Muhammad Sadiq v. The State, 1996 SCMR 1654.
(8) In respect of plea of alibi because certain witnesses have stated that at the time of incident, they had seen the applicant Ahmed Din at somewhere else, he relied upon Said Akbar v. Gul Akbar, 1996 SCMR 931 and Muhammad Saleheen v. Arshad Siddiq, 1997 SCMR 1829.
4. Mr. Zuber Ahmed Rajput, learned counsel for Sher Muhammad, made the following submissions:- -
(1) No injury has been caused to the complainant or his companions or the car. Similarly, no injury has been caused to motorcycle. Motorcycle has not even been cited as case property.
(2) Learned counsel referred to Mashirnama of place of Vardat and submitted that it was prepared at 3-00 p.m. And submitted that inquest report was also prepared at 3-00 p.m. But it was prepared in the Hospital. He submitted that the dead body cannot be at both placed at the same time and distance between place of Vardat and the Hospital is between ten to twelve kilometers. Learned counsel referred to post mortem, which stated that the body had been brought from the village. He submitted that village is at distance of three kilometers from the place of Vardat and there is no explanation, whatsoever, how the bodies were shifted from place of Vardat to the village.
(3) Ghulam Mehdi and Ghulam Nabi, who identified the bodies in the Hospital, have not been cited as witnesses in the challan.
(4) Even post mortem does not carry number of F.I.R. Was registered at 2-00 p.m. And post mortem was started at 4-15 p.m. And even then number of F.I.R. Was not mentioned in the post mortem and this renders time of recording of F.I.R. As doubtful. He relied upon Atta Muhammad v. The State, 1995 SCMR 599.
(5) Learned counsel submitted that Mashirnama of clothes indicates that clothes of the deceased were available at Police Station at 5-00 p.m. And he submitted that post mortem was completed at 6-00 p.m. And there is no explanation as to how the clothes reached there.
(6) He submitted that Mashir Muhammad Naeem and Naveed Hussain are not independent persons as they are nephews of the complainant and have been Mashirs for almost everything. He submitted that they are, therefore, stock Mashirs.
(7) Learned counsel referred to the injuries, stated in the post mortem report and pointed that one cusion wad was recovered from injury No,1 on dead body of Ashraf. He referred to textbook on Medical Jurisprudence and submitted that the way the incident is described, it creates doubt.
(8) Learned counsel submitted that no recovery has taken place and it is rampant tendency that the entire family is involved in every crime. He relied upon Ghulam Nabi and another v. The State, 1998 PCr.LJ 968, Khalid Sarwar v. The State, 1998 PCr.LJ 1131 and Muhammad Jabbar v. Shah Daraz Khan and another, -2009 PCr.LJ 370.
(9) He submitted that if I0 grants bail, the Court cannot cancel bail unless the procedure prescribed in section 497(5), Cr.P.C. Is followed. He relied upon Nisar Ahmed v. The State, 1970 PCr.LJ 1171 and Ghulam Haider v. The State, 1970 PCr.LJ 640.
(10) Learned counsel submitted that Sher Muhammad is 71 years old and he submitted that he is a patient of diabetes and hypertension and is, therefore, entitled to facility of bail. He relied upon Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB), 2006 SCMR 1225, Arshad Mahmood and another v. Sarfraz and others, 1996 SCMR 861 and Sakhi Muhammad v. The State, 1973 PCr.LJ 397.
(11) He submitted that bail cannot be denied as punishment and he relied upon Muhammad Saeed Mehdi v. The State and 2 others, 2002 SCMR 282.
5. Mr. Maqbool Ahmed Awan, learned counsel for the complainant, read from the order dated 5-5- 2011 by which order the Court below had rejected pre-arrest bail application of Muhammad Din and made the following submissions:--
(1) Alibi of Muhammad Din was recorded after statements of his witnesses were recorded and there is no explanation as to how the Investigating Officer got in touch with those witnesses and why.
(2) He submitted that no mala fide of Police has been pointed out and, therefore, applicant Muhammad Din is not. Entitled to pre-arrest bail, which, he submitted, is a condition precedent for grant of pre-arrest bail. He relied upon Ashfaq Ahmed v. The State, 2011 SCMR 1435, Murad Khan v.
Fazal-e-Subhan and another, PLD 1983 SC 82, Rana Muhammad Arshad v. Muhammad Rafique and another, PLD 2009 SC 427 and Riaz Ahmed v the State, 2009 SCMR 725.
(3) He submitted that names, roles and weapons of the applicants are clearly stated in the F.I.R.
And the case against the applicant is not of ineffective firing because there is allegation of direct firing and recovery of empties fully supports case of prosecution. He submitted that section 324, P.P.C. Has two parts and even if no injury has been caused, if attempt to murder is made, section 324, P.P.C. Is attracted. He submitted that every member of an unlawful assembly is equally. Liable.
(4) On the question of alibi, learned counsel relied upon Bahadur v. Muhammad Latif, 1987 SCMR 788 and submitted that applicant Muhammad Din never joined investigation.
6. Arguing bail application of Sher Muhammad, the learned counsel submitted that in bail application, deeper appreciation is not permitted and all the arguments of Mr. Rajput require deeper appreciation. Learned counsel, on the question of divergent opinion of Police, relied upon Muhammad Saddique v. Imtiaz Begum and 2 others, 2002 SCMR 442. In respect of alibi, he relied upon Waqar-ul-Haq v. The State, 1985 SCMR 974 and in respect of opinion of Police, he relied upon Mudassar Altaf and another v. The State, 2010 SCMR 1861.
7. Mr. Zulfiqar Ali Jatoi, learned DPG submitted that as far as Sher Muhammad is concerned, there is no definite determination of his age. He submitted that he has shifted himself from one Hospital to another and there is no explanation why and there is no certificate that his lodging in Jail would be detrimental to his life. He relied upon Dr. Abdullah Hamid Mehmood v. The State, PLD 2006 Karachi 393, Mahmood v. The State and another, 2011 YLR 1652 and Abdullah. Khan v. The' State, 2006 PCr.LJ 1350. He submitted that it is a bit early to conclude that what was distance from which fire was made. Therefore, presence or the absence of wad cannot be considered at this stage. He relied upon Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966 and Ehsan Akbar v. The State, 2007 SCMR 482.
8. Regarding applicant Muhammad Din, learned DPG submitted that it is stated that he is lawyer but there is no evidence whatsoever that at the time of incident, he was present before any Court.
9. While exercising his right to reply, Mr. Pirzada submitted that if a statement of a witness in support of plea of alibi is recorded before the statement of accused is recorded in which he takes such plea, there is no illegality committed thereby. He submitted that Magistrate was not empowered to issue NBWs. He could, at the most, have ordered issuance of BWs. He submitted that on this score alone, pre-arrest bail should be granted. He relied upon Criminal M.A No,S-165 of 2010, decided on 8-11-2010. He next submitted that existence of enmity cannot rule out the possibility of false implication. Learned counsel submitted that Murad Khan's case (supra) was considered by the Supreme Court in Shahadat Ali v. Mubarak Shah and another, PLD 1986 SC 347 and Meeran Bux v. The State and others, PLD 1989 SC 347 and it was held by the Supreme Court that simple mentioning of mala fide in bail application is sufficient. Learned counsel also relied upon Muhammad Nazeer v. Master Muhammad Gul and another, 1992 PCr.LJ 674.
10. While exercising his right to reply, Mr. Rajput submitted, that place where empties were recovered was not pointed out and he relied upon Saee v. The State, 1973 PCr.LJ 675. He submitted that oldage in itself is sufficient to come to the conclusion that the applicant is entitled to bail. He relied upon Peer, Mukaram-ul-Haq v. National Accountability Bureau (NAB), 2006 SCMR 1225 and Arshad Mehmood v. Sarfraz, 1996 SCMR 861.
11. I have considered the submissions made by the learned counsel and have also gone through the record.
12. In case of applicant Muhammad Din, it is a pre-arrest bail application. Contention of Mr Awan was that since there is no allegation of mala fide against Police; therefore, Muhammad Din is not entitled to pre-arrest bail. He relied upon Ashfaq's case (supra). In the reported case, after arguing the matter at considerable length, under instructions from the petitioner, the counsel withdrew bail application stating that he would like to make resort to appropriate remedy available, to petitioner under law. Case is, therefore, not an authority for the proposition that learned counsel has advanced. Mr. Awan next relied upon Murad Khan's case (supra). It was a case decided by a four Members Bench of the Supreme Court. Pre-arrest bail was refused by Sessions Court but was allowed by High Court and matter was taken to the Supreme Court. High Court, while granting bail, examined merits of the question whether the alleged firearm wound on person of the complainant was at all caused by a firearm and further observed that it required inquiry to see whether complainant could have suffered firearm injury in the manner asserted by the prosecution side.
Leave was granted to considered whether High Court had acted in accordance with well- established principles relating to grant of pre-arrest bail. Supreme Court observed that rule in criminal matters is that in order to justify grant of pre-arrest bail, the petitioner must show that he apprehends his arrest on account of ulterior motives. Thereafter, Supreme Court held as under:-- "As already observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harrassment is a necessary condition for pre-arrest bail,"
13. Thereafter, Supreme Court also observed that mala fide motives of Police or political victimization can also be grounds for grant of pre-arrest bail. Learned counsel next relied upon Rana Muhammad Arshad's case. (supra) and lastly he relied upon Riaz Ahmed's case (supra). In the latter case, Murad Khan's case (supra) was relied upon. On the other hand, Mr. Pirzada relied upon Shahad Ali's case (supra). It is a Judgment by a five Members Bench of the Supreme Court. In this case, the applicant filed a pre-arrest bail application before an Additional Sessions Judge, who did not grant bail but issued notice. He then filed bail before arrest application before another Additional Sessions Judge and obtained interim bail before arrest from that Court. His both bail applications, however, were dismissed for non-prosecution. Then he approached High Court and only referred to his second bail before arrest application. Interim bail was granted and, subsequently, it was confirmed. Supreme Court set aside order of the High Court because of conduct of the applicant in suppressing factum of first bail application while moving second bail application. Case is, therefore, clearly distinguishable. He next relied upon Miran Bux's case (supra).
It again is a Judgment by a five Members Bench of Supreme Court. Miran Bux was accused of directly causing gun fire upon the injured person. He made an application for pre-arrest bail to the Sessions Judge, who granted him bail. A Single Judge of this Court, exercising suo motu revisional jurisdiction, set aside order of the Sessions Judge and following Murad Khan's case (supra) cancelled pre-arrest bail for the reason that prerequisite for grant of pre-arrest bail, i,e, arrest was due to ulterior motives, was not satisfactorily proved and, therefore, Miran Bux could not have been granted pre-arrest bail. Bail, granted to him by the Sessions court, was cancelled. Supreme Court granted leave to appeal to consider whether the High Court had failed to appreciate that petitioner had stated in his application for pre-arrest bail that his arrest was for ulterior motives so as to humiliate him. Supreme Court observed that the Sessions Judge had granted pre-arrest bail after considering merits of the case and the High Court had not at all considered the case on merits.
Supreme Court observed that since High Court had not considered case on merits, it would be appropriate to remand case to High to consider it on merits; however, since co-accused had been granted bail and since reason, given by Sessions Judge for grant of pre-arrest bail, was on merits, Supreme Court restored the order of the Sessions Judge. Miran Bux's case was followed by a Single Judge of this Court in Muhammad Nazir's case (supra). Same question was considered by me in Nazar Muhammad and others v. The State, Criminal B.A No,213 of 2011, decided on 21-11-2011 and it was observed as under:-- "Learned APG submitted that no mala fides or allegation at the hands of Police are alleged and, therefore, grounds urged by the learned counsel, though they may be good and valid grounds for grant of bail after arrest, cannot be taken into consideration while granting bail before arrest. It is quite a vexed question and if I may paraphrase it, the question is: if on merits case for bail is made out should bail before arrest be refused merely because no allegation of harassment at the hands of Police, dishonour, disgrace or humiliation are alleged. A Full Bench of Lahore High Court was constituted in 1948 and in the case of Hidayatullah Khan son of Sher Nawab Khan v. The Crown, PLD 1949 Lahore 21, it laid down as under: "For the reasons given above, the reply which I would give to the question referred to us is that, in a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a Police Officer or a Court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which not only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm."
' In Zeeshan Kazmi v. The State, 1997 PCr.LJ 881, Mr. Justice Kamal Mansur Alam laid down as under: "10. The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498, Cr.P.C. Are
(a) that there should be a genuine-proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner;
(b) that the petitioner should physically surrender to the Court;
(c) that on account of ulterior motive, particularly on the part of the police, there should be apprehension of harassm ent and undue irreparable, humiliation by means of unjustified arrest;
(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C.
Would have to be kept in mind;
(e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C."
' In Muhammad Ramzan v. Zafarullah and another,. 1986 SCMR 1380, case of murder was initially instituted against seven persons; majority of whom were not attributed any specific role insofar as physical injury to the victim was concerned. Some of them were allowed bail before arrest while others were allowed bail after arrest. The order, by which bail before arrest was granted, was challenged and ultimately, Supreme Court observed as under: "No useful purpose would be served if the bail of Zafar Ullah Khan respondent is cancelled on any technical ground because after arrest he would again be allowed bail on the ground that similarly placed other accused are already on bail".
' In Ali Gohar and five others v. The State, 2008 PCr.LJ 652, a Single Judge of this Court relied upon Fazal alias Bodi v. The State, 1979 SCMR 9 and Muhammad Ramzan's case (supra) and allowed pre-arrest bail. In Sarwar Sultan v. The State, PLD 1994 SC 133, a three Members' Bench of the Supreme Court held as under: "9. From legal angle, it can be said that there is material difference between bail after arrest as contemplated under section 497, Cr.P.C. And bail before arrest under section 498,. Cr.P.C. In non- bailable 9 ffence, an accused is not to be released on bail by the Court, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, infirmity and sex and also if there are sufficient grounds for further inquiry and also on the ground of statutory delay. As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that is a fit case for grant of such relief within the limits of law also it stated above". (emphasis supplied)
' Last case in the series is Rana Muhammad v. Muhammad Rafique, PLD 2009 SC 427. This is a Judgment by a two members' Bench of the Supreme Court and the Supreme Court summarized law in this regard as under:
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i,e, unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to B disagree and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. He had no past criminal record or that he had not been a fugitive at law; and finally that;.
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i,e, the Court of Session, before petitioning the High Court for the purpose.
' Survey of the above case-law indicates that considerations for grant of pre-arrest bail are not at all different, as far as merits of the case are concerned, from the considerations for grant of post- arrest bail. The only difference, which has been highlighted in certain Judgments, is that there must be additional basis of humiliation, harassment, mala fides, intention to disgrace and dishonour (Rana Muhammad Arshad's case). This particular view has to be read in juxtaposition with view of two members' Bench of the Supreme Court in Muhammad Ramzan's case (supra) where the honourable Supreme Court said that if a person is otherwise entitled to bail, no useful purpose shall be served by putting such person firstly behind bars and then allowing him bail. In Sarwar Sultan's case (supra) it has been held that the Court has to keep a balance but it has been then observed that if a fit case for grant of bail is made out, bail before arrest should be allowed in appropriate cases."
14. Therefore, in order to decide bail application of Muhammad Din, his case has to be considered on merits. Moreover, Muhammad Din is an Advocate of this Court and it would certainly be a case of humiliation if a person belonging to an honourable profession is sent behind bars, particularly when on merits, his case for bail is made out. In the F.I.R., there are two allegations against Muhammad Din. Firstly, he was member of that nine members group and; secondly, after Ashraf and Asif had been murdered, it is stated, other co-accused with intention to kill fired at other members of the complainant party but they by falling down evaded the fire. Now, it is yet to be seen that "others" who fired at other members of the complainant party had the intention to kill or merely to cause scare. Moreover, no specific role of any of the "others" is stated in the F.I.R. Or even in the statement of witnesses recorded under section 161, Cr.P.C. Mr. Awan referred to section 324, P.P.C. And submitted that it is not an essential ingredient of section 324' that injury be caused. There cannot be any view other than the one conversed by Mr. Awan. However, in a given case, even at the bail stage, question would be: was there intention to kill or not and that intention can only be decided after recording evidence.
15. In view of my above conclusion, I do not think it would be necessary to go into other contentions by Mr. Pirzada and counter contentions by Mr. Awan in respect of applicant Muhammad Din.
Applicant Muhammad is, therefore, entitled to bail.
16. As far as applicant Sher Muhammad is concerned, in the F.I.R. Allegation is that Sher Muhammad and Niaz Hussain made repeater and riffle fire on Ashraf, who raised cries and fell down. Contention of Mr. Rajput was that Sher Muhammad is 71 years old and is a sick person and, therefore, he should be granted facility of bail. In this regard, he referred to a certificate issued by Taluka Hospital, Kandiaro on 1-11-2011. The certificate states that Sher Muhammad physically seemed to be weak. Thereafter, it states that Sher Muhammad was admitted in Taluka Hospital, Kandiaro on 27-7-2011 vide an OPD number and he suffered from Typhoid fever. It further states that he was patient of Diabetes Mellitus and hypertension and his treatment was going on. Learned counsel also referred to certificate, issued by Medical Officer, Civil Hospital, Naushahro Feroze, which stated that Sher Muhammad was admitted in District Hospital from 22-7-2011 to 26-7-2011.
Learned counsel relied upon Peer Mukara-ul-Haq's case (supra). Medical doctor had recommended for shifting the petitioner to some health facility where a team of Diabetologists, neurophysician and cardiologist would be available and since they were not available at District Headquarter, Mianwali and it was also in evidence that the petitioner had been hospitalized in the department of Urology, the Supreme Court suspended sentence and granted bail. In Arshad Mehmood's case (supra) Arshad Mehmood was complainant. Accused Sarfraz was granted bail on medical ground while bail of co-accused was declined by the High Court. Medical Officer, District Headquarter Hospital, Jehlum had certified that Sarfraz was unable to perform any work by right hand due to deformity of fingers and painful shoulder and High Court held him of unsound physique and observed that his participation in the alleged occurrence and inflicting injury needed specific evidence. Supreme Court did not interfere. In Sakhi Muhammad's case (supra) Medical certificate was produced, which stated that his heart was enlarged but a Professor of Cardiology stated that it was normal. A Single Judge of Lahore High Court obseived as under:- "4. 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 oldage itself' brings infirmity and senility with it. I have carefully considered the above-mentioned contentions of the learned counsel for the petitioner. I do not want to discuss them and express any view about their being forceful or otherwise, because that may be considered an expression of opinion with regard to the merits of the case. I therefore, think it sufficient, at the present stage, to observe that there appear to be reasonable grounds for believing that the petitioner is not guilty of an offence punishable with death or transportation for life. Consequently the bail already granted to him is confirmed."
17. On the other hand, learned DPG relied upon Dr. Abdul Hamid Mehmood's case (supra). It was contended that according to Medical Board, the applicant was patient of hypertension and uncontrolled blood pressure, which carried risk of stroke and acute coronary syndrome.
Consequently, it was contended that his incarceration would be detrimental to his health as in case of emergency such as a stroke, no facility was available at Prison Hospital. Mr. Justice Sarmad Jalal Osmany, acting as a Single Judge of this Court (as his lordship then was and now his lordship graces the Supreme Court) laid down law as under:-- "6. I have heard all the learned counsel. It would be seen that insofar as the medical ground is concerned, the law is settled right up to the Hon'ble Supreme Court of Pakistan whereby this is only considered when it can be established that the continued detention of the accused in prison would be detrimental to his health. In other words that the accused was suffering from a disease which could not be treated or managed by the prison doctor. According to the report of the Medical Board, the applicant/accused is a known case of hypertension. He complains of backache, pain on the left side of his chest, and uncontrolled blood pressure. He has history of a fall for which he remained hospitalized about one year back. His blood pressure and ECG was normal but his spinal X-ray showed a straightening. There was no end organ damage but he has pressure over the spinal cord as a result of past trauma. In this circumstances it has been opined by the Board that the risk of a stroke or acute coronary syndrome as a result of high blood pressure would be the same whether he was behind the bars or not, as this depends on the control of his blood pressure.
' Finally, a neuro surgical opinion is recommended for his spinal cord problem. In these circumstances I am of the opinion that the disease of high blood pressure which is a very common one can easily be managed by the applicant/accused himself with the assistance' of the prison doctor and hence at this stage it cannot be said that this continued detention in prison is detrimental or otherwise would proof fatal to his health. Insofar as his spinal problems are concerned, against, per the applicant/accused himself he had sustained an injury in that area some time ago for which he remained hospitalized. However, he seems to have recovered from such injury as on each date of hearing he has been produced from Jail and was seen walking normally. In the circumstances, I am of the opinion that no case for bail is made out on the ground of illness."
18. He next relied upon Mehmood's case (supra). It was observed as under:-- "8. Now comes the question of old age of the accused/ petitioner. According to law, mere old age of an accused has never been considered by the superior courts to be a sufficient ground for, release of an accused on bail. However, case of an infirm and sick person can be considered for the purpose of bail whereas the case of accused/petitioner is silent in this regard and nothing of the sort has been brought on the record."
19. Lastly, DPG relied upon Abdullah Khan's case (supra). There were five medical reports. One stated that he suffered from Asthma and diminished vision with difficulty in walking and sitting due to old gunshot injury. Second stated that his age was 80 years. Super Medical Board submitted that his health was stable and there was acute emergency. Yet another Medical Board opined that he- was patient of hypertension. Last medical report submitted that he was 80 years of age, walking with stick, suffering from Asthma, Arthritis of both knees and physiotherapy was ordered. It was held that no case for bail was made out on health ground. In the present case, one doctor has opined that he is 70/71 years of age and is patient of Diabetes Mellitus and hypertension but doctor has stated that he was admitted for Typhoid fever. Admittedly, Typhoid fever is not an old age disease. Moreover, this was done at Hospital at Kandiaro where he reported on 22-7-2011 and till 26-7-2011 he was in Civil Hospital at Naushahro Feroze. There is no explanation why he shifted from Naushahro Feroze Hospital to Kandiaro Hospital. Both the Hospitals have submitted that he is patient of hypertension and Diabetes Mellitus. These, two diseases are practically carried around in the society, sometimes as a common curse and sometimes as a badge of honour but are rarely treated as debilitating diseases unless some post disease complication has developed and in the present case, it is not claimed that any post disease complication has developed or is seriously apprehended. In view of medical opinion, there is no opinion available by the Jail Doctor that the applicant cannot be adequately taken care of in Jail. Therefore, contention of learned counsel that applicant Sher Muhammad is entitled to bail on medical ground, at least on the basis of available record, seems to be without substance. It has been held by various Benches of this Court that mere old age is not a ground sufficient for C grant of bail. Even in Sakhi Muhammad's case (supra) the Court had considered merits.
20. Coming to the merits of bail application, contention of Mr. Rajput was that complainant and his companions had not been injured. Now, the incident is described as two persons going on a motorcycle and three of them were following them in a car. It was motorcycle, which was encircled and allegations against the applicant is that he along with a co-accused directly fired at Ashraf.
Therefore, there could not be any question of the present applicant injuring any of the complainant party in a car or causing any injury to the car. As far as contentions of the learned counsel regarding times stated in Mashirnama of place of Vardat, not carrying F.I.R. Number in post mortem report, how did the clothes reach Police Station and when did they do it, whether the Mashirs are reliable and truthful or not, what was distance from which fire was made and what does recovery of wad pretend, are concerned, they are the issues, which require deeper appreciation of evidence and such an exercise cannot be under taken at the bail stage. Similarly, contention of learned counsel that it is tendency that entire family is involved, is also not relevant for the case against Sher Muhammad because allegation against Sher Muhammad is that he along with one co- accused fired at the deceased Ashraf and in the F.I.R. Itself, it is sated that Ashraf had received injuries on the front of his head, on forehead, on eyes, on right hand and leg. Therefore, there seems to be, prima facie, material available on record to connect the applicant Sher Muhammad with the offence alleged against him.
21. Result of above discussion is that Criminal B. A. No,409 of 2011 is allowed the bail, already granted to the applicant, is confirmed on the same terms and, Criminal B.A. No,1047 of 2011 is dismissed.