This is an application filed on behalf of Dr. Abdus Salam and his two sons Sayyed Hassan Shah and Nadir Hussain. They are accused of offences under sections 302 and 307 read with section 34 of the Pakistan Penal Code, for having caused the death of one Abdus Salam and making a murderous assault on Muhammad Ibrahim.
2. The occurrence took place on 10th of July 1969, in the jurisdiction of Police Station Qila Gujjar Singh, Lahore.
3. Mr. M. B. Zaman, the learned counsel for the petitioners has urged the following grounds for grant of bail: -
(i) That Abdus Salam is an old man of 66 years of age and is suffering from kidney and heart trouble;
(ii) that the prosecution have not come out with the whole truth. There are nine blunt weapon injuries on the person of Abdus Salam but there is no mention of these injuries in the first information report. The learned counsel submits that some of the injuries are suggestive of the fact that they were inflicted with dangs;
(iii) that the two other accused, namely, Syed Hassan Shah and Nadir Hussain have not, even according to the F.
1. R., inflicted any injury although it is alleged that they were armed with iron saryas.
4. By my order dated 1st of October 1969, I called for a report from Kh. Sadiq Hussain, Professor of Medicines, King Edwards Medical College, Lahore, who was treating Abdus Salam with regard to the state of his patient's health. A copy of the report dated 23rd of September 1969, was sent by Kh.
Sadiq Hussain in response to the order of this Court. It was stated in the report that Dr. Abdus Salam was suffering from Chronic Uraemia most, probably due to repeated stone formation, as evidenced by renal colics, etc., and that his history and E. C. G. Reading were consistent with Angina Pectoris. It was, however, observed in the forwarding letter that the latest test of the blood urea of Abdus Salam which was made on 7th of October 1969, showed improvement.
5. During the arguments, it was pointed out by Mr. Ghulam Sari Saleemi, the learned, counsel for the complainant, that there appeared to be some contradiction in the investigation part of the report and the conclusions arrived at on the basis of that investigation. It was pointed out that according to the investigation the X-Ray did not show any stone or any radiological abnormality and that the kidney scan was normal, but in the conclusion it was stated that Dr. Abdus Salam was suffering from Chronic Uraemia probably due to stone formation.
6. I called for a further report from the doctor by my order dated 10th of October 1969 and asked him to re-examine the petitioner Abdus Salam, and elucidate the opinion about the stone formation in the kidney. I also asked for his categorical opinion as to whether the posterlateral ischaemia, which was suggested in examination of the E. C. G. Was of such a nature that the release of Dr. Abdus Salam on bail was necessary and that his treatment in jail was not possible.
The doctor has sent another report and I would like to reproduce here the relevant portion of this report: - "(2)' The fact that the X-Ray shows no stone or any "radio--logical" abnormality does not necessarily mean that there is no kidney disease, nor are all stones necessarily visible on X-Rays even if present. Small kidney stones and gravel are more often than not, passed out in urine and no evidence of their even having been formed may be found.
(3) "Kidney scan" is a very new investigation and its use in assessing kidney function is still being worked out at only 2-3 centres in the Country. It is therefore unsafe to rely heavily on it.
(4) Repeated urine examinations have shown that the patient has been passing albumin and pus cells in the urine which was infected."
It is further mentioned in this report that the improvement reported on 7th of October 1969, in the blood urea had been maintained and the latest blood urea report is within the normal limits. The doctor has finally opined that the changes in the E. C. G. And kidney condition are not of such a nature that treatment in jail is not possible.
7. Mr. M. B. Zaman, the learned counsel for the petitioners has stated that the very fact that Abdus Salam petitioner is under treatment in the hospital from 21st of August 1969, should be sufficient to persuade me to grant bail to him. He, in this con--nection, referred to the case of Abdul Aziz v.
Bashir Ahmad (PLD 1966 SC 638) where the fact that a person had remained under treatment for a month and half, was considered sufficient by the Supreme Court for grant of bail. This judgment serves a guideline for the Courts in the country as to what factors should be taken into consideration for grant of bail for reasons of infirmity but I may say that A each case is to be determined on its own facts, as was observed by their Lordships of the Supreme Court in Abdul Malik v, State (PLD 1968 SC 349).
8. In the case referred to by the learned counsel for the petitioners, Abdul Aziz had raised a lalkara.
In the presence case, the fatal injury is ascribed to Abdus Salam petitioner only. The doctor's further opinion shows that the health of Abdus Salam petitioner has improved. In view of the facts of this case I do not think that Abdus Salam is entitled to bail at this stage for reasons of infirmity as age.
The fact that he had blunt weapon injuries which have not been mentioned in the F. I. R. Require an explanation which may be furnished by the prosecution during the recording of evidence. I, therefore, dismiss the bail application so far as Dr. Abdus Salam is concerned.
9. With regard to the two other accused, the submission made by Mr. M. B. Zaman has force. They are said to have been armed with iron saryas but no overt act is attributed to them. Nadar petitioner has injuries on his person. This only shows his presence at the spot. I, therefore, direct that Syed c Hassan Shah and Nadir Hussain petitioners shall be released on bail in the sum of Rs. 10,000 (Rupees ten thousand) each with one surety each in the like amount to the satisfaction of the Additional District Magistrate, Lahore.
10. Copy Dasti on payment.