' This is a bail application under section 497, Cr.P.0 moved by applicant Mohammad Bux who is facing trial alongwith two others one of whom Godho is absconder under section 302/34, P.P.C. In Crime No, 54 of 1988 of P.S. Ubauro in the Sessions Court, Sukkur.
2. Incident took place on 7-5-1988 at about 7-00 a.m. F.I.R. Was lodged the same day at 8-20 a.m.
By the complainant, Abdul Razak who is the brother of the deceased Altaf Hussain. The applicant had earlier filed an application for grant of bail in the Sessions Court which was heard by learned IIIrd Additional Sessions Judge, Sukkur and was dismissed by his order dated 19-9-1988.
3. Mr. Habibullah Shaikh, learned counsel for the applicant submits that-
(1) The ocular evidence is belied by the medical report;
(2) There is no recovery of the gun from which the shots have been alleged to have been fired.
However, two empty cartridges were found by the police from the place of occurrence, near the canal path;
(3) The applicant is 75 years old and deserves concession of bail;
(4) There is no independent witness in the case; and
(5) No motive has been attributed to the accused.
4. In respect of the first submission as to the difference between ocular evidence and post-mortem report the counsel submitted that there are two injuries in the post-mortem report which could be the result of two shots fired by two persons only. According to him no specific part has been assigned to the applicant. Further, it is most improbable that an old man of 70 years of age who was accompanying his son-in-law Mitho, as alleged, would be able to fire the shot at the deceased. It has been stated by the complainant and one eye-witness that four shots were fired.
Had it been so the other two cartridges would have been found.
' Learned counsel for the applicant further submits that there are other differences between ocular evidence recorded by the police and the post-mortem report. According to the F.I.R the incident took place at about 7-00 a.m. Whereas in the opinion of the doctor the probable time which elapsed between injury and death is one hour, and between death and post-mortem the time elapsed is 6 hours. The post-mortem was carried at 10-45 a.m. To 12-00 noon. So, according to the opinion of the Doctor, the incident in all probability had taken place at about 4-45 a.m. As per F.I.R.
The deceased died instantaneously whereas according to the opinion of the doctor he appears to have died within one hour. Reliance is placed by the learned counsel on Mohsin v. State 1977 P Cr. L J 159 and Nazir and another v. The State 1978 SCMR 285.
6. On the other hand, Mr. Zawar Hussain Jafferi learned A.A.-G. Submits that the medical report is always considered as only probative and in case there is difference between the medical report and the ocular testimony, it is to be resolved by the trial Court. Reliance is placed by him on Sanatta and another v. The State 1982 SCMR 208. As regards the applicant being a man of old age, no exception has been made in the law. Reference is made to first proviso to section 497, Cr.P.C.
7. I have gone through the post-mortem report with the assistance of the learned counsel of the parties and find that there are in all four wounds. Injuries Nos.1 and 2 are entrance wounds whereas injury No,3 is an exit wound and injury No,4 seems to be independent. It is alleged in the F.I.R. That the complainant and his witnesses heard one shot of fire which came from western side.
Thereafter, the three accused appeared on the scene with guns in their hands and shot three fires straight to the deceased which hit him and he fell down raising cries. In the face of the two entrance wounds and one independent, it appears that probably, these shots hit the deceased.
8. In the first case 1977 P Cr. L J 159 a learned Single Judge of this Court observed that: "I, however, find that the submission of the learned counsel for the applicant is correct that the medical report does not indicate any injury on the deceased on his back, whereas some of the witnesses were so specific in their assertion that the applicant hit the deceased on his back that they said that the deceased due to the back injury was unable to sit. For the purpose of bail therefore, due to the clear inconsistency between the ocular and medical evidence, in my opinion, the case falls within the purview of clause (2) of section 497, Cr.P.C."
9. In the second case 1978 SCMR 285 the Hon'ble Supreme Court observed that: "In the F.I.R. There is no mention of any head injuries caused to the deceased. Moreover, the post- mortem examination of the deceased shows that the doctor did not find any ligature mark on the neck of the deceased and to this extent the F.I.R. Is not supported by the medical evidence brought on the record."
Agreeing with the observations of the learned Judge of the High Court as to the doubt about the cause of death which was either due to the "head injury or due to strangulation" the Hon'ble Supreme Court upheld the impugned order of the High Court.
10. In the case 1982 SCMR 205 relied upon by the learned A.A.-G. The Hon'ble Supreme Court observed as under:- "In the instant matter the F.I.R. Assigns specific roles to the petitioner and the fact that the medical report does not agree with the account of eye-witnesses of the specific blows, delivered by the respective petitioners might well be a relevant factor at the trial, yet at this stage this aspect of the matter cannot be gone into very deeply."
11. The cases cited by the learned counsel for the applicant, relevant parts whereof have been quoted above are distinguishable. In the above-cited cases there was a difference as to the nature of injury caused to the deceased inasmuch as there was specific part assigned to the accused in the F.I.R, as to the accused in the first case, of specific injury caused by the accused on the back of the deceased was found inconsistent with the medical evidence, whereas in the second case there was an allegation of causing injury on the head of the deceased which was belied by the post- mortem report. In the said case the Hon'ble Judges seem to be doubtful as to the cause of death and, furthermore, there was a difference about the head injury in the F.I.R. And the post-mortem report. In the instant case there is no specific part assigned in the F.I.R. To specific accused nor a specific part of the body has been named in the F.I.R. All the three accused, according to the F.I.R.
Fired the deceased and, therefore, there seems to be no discrepancy according to me, at least for the present. The submission of the counsel about the allegation of four fires by the accused but hitting only three and finding of two cartridges by the Police is a matter for trial Court, as observed by the Hon'ble Supreme Court in 1982 SCMR 285(?).
' As regards the difference in timing of death or incident, these are all probative matters to be resolved at the time of trial. I restrain myself to make further observations as to the difference of timings etc as I am afraid it might not affect the merits of the case at the time of the trial. Following respectfully the observations of the Humble Supreme Court as reported in 1982 SCMR 208 the contention of the learned counsel is repelled.
12. With regard to the plea of old age which has been vehemently stressed by the learned counsel for the applicant, the applicant is stated to be an old man of about 75 years of age. A medical certificate issued by the Civil Hospital, Sukkur on the letter of the Court written by learned Sessions Judge has been produced by the learned counsel. Learned counsel also relies on 1977 SCMR 50 and 1978 SCM R 77.
13. In the first case 1977 SCMR 50 it appears that the Humble Supreme Court was impressed by the submission of the counsel not on the ground of age but on specific observation that the old man was not responsible for causing fatal blow but such blow was caused by his son. Under the circumstances the old man was regarded as an infirm person. Moreover it is noticeable that in this case pre-arrest bail was granted under section 498, Cr.P.C. And the petitioner was present before the learned Judge who had an opportunity of observing the physical condition of the accused coupled with old age which according to the learned Judge brought infirmity and senility with it. In the second case 1978 SCMR 77 another consideration which appears to have prevailed upon the Hon'ble Supreme Court was that there was no hope of the case being tried within one year as final challan was not submitted till then, whereas in the instant case the challan has already been submitted by the police. Furthermore, in the cited case it has been observed that no overt act except a Lalkara was attributed to the applicant.
14. The first proviso to section 497, Cr.P.C. Makes an exception in respect of persons under the age of 16 years or any woman or any sick or infirm person accused of the offences contemplated by section 497, Cr.P.C. In the instant case the medical certificate does not give the slightest indication that the petitioner is infirm or sick or is suffering from my chronic disease so that his remaining in jail would be injurious to his health.
15. The dictionary meaning of the word "infirm" as per Twentieth Century Dictionary, is feeble; sick; weak; frail; unstable and according to Black's Law1 Dictionary it means, weak; feeble, lacking moral character or weak of health.
16. I may also refer to a number of decisions of the Hon'ble Supreme Court on the ground of refusal to granting bail due to old age of the accused. First of such cases is Muhammad Hussain v. The State 1977 SCMR 52 wherein it was observed "The mere fact that he (petitioner) is stated to be aged 70 years does not entitle him to the concession of bail."In Hakim Ali and 3 others v. The State (1979 SCMR 114) it was contended that "the petitioners Nos.1 and 2 are entitled to bail under the proviso to subsection (1) of section 497, Cr.P.C. As petitioner No,1 was eighty years of age while petitioner No,2 was over seventy years". The Hon'ble Supreme Court observed that "it has also not been shown that these petitioners were sick or infirm to attract the concession of bail envisaged in the proviso aforesaid."
17. So merely being of 70 or 75 years of age is not to be considered sufficient ground for grant of bail. In the instant case the medical certificate only shows the age of the applicant to be of 75 years but it does not say any thing about feeble physical condition or ill-health of the applicant or indicates an infirmity. Merely old age does not necessarily mean infirmity and in this respect, I feel inclined to record my humble disagreement with the view of the learned Single Judge of the High Court of Lahore, as he then was. Reliance is also placed by me on Gul Ahmed v. Masam Khan and 3 others 1977 SCMR 27.
18. The submission of the learned counsel for the applicant that no motive has been attributed to the applicant is without force inasmu ch as it has been stated specifically in the F.I.R. That there is a case pending in the Sessions Court under section 302, P.P.C. Registered at Police Station Ubauro against deceased Altaf Hussain on the charge of murdering the brother of co-accused Godho who is son-in-law of the present applicant. In fact it is mentioned in the F.I.R. That in order to take revenge of Altaf Hussain brother of co-accused Godho all the accused after pre-planning came to the canal pathway and caused the murder of the deceased and that while leaving, the accused told them that they have taken revenge of Altaf Hussain. Since the case is pending I need not elaborate it further but I am clear in my mind that the motive is clearly attributable to the applicant.
19. With regard to the submission of the counsel that there is no recovery of the guns, they might have been thrown into the canal or concealed. As regards the submission of the counsel that there is no independent witness suffice it to say that it will be unfair on my part in a bail matter to comment on the matters touching merits of the case. For purpose of bail making detailed inquiry into the facts of the case is not warranted in law as a it might have an adverse effect on the trial of the applicant.
20. In matters of bail, mere surmises and conjectures are of no avail. The presence of the applicant has been specifically mentioned alongwith two other co-accused in the F.I.R, Simply because he is an old man and will not fire shot, will amount to stretching the matter too far. It appears that all the three accused armed with guns in a pre-planned manner, reached the place of occurrence, early in the morning, and fired straight at the deceased who appears to have died at the spot. In such a situation when all the three are co-related, they appear to have shared common intention of killing the deceased and if proved so at the proper trial each of them will be liable either personally or vicariously.
21. For the foregoing reasons, I do not feel satisfied that the case falls within the exception. There appear to be reasonable grounds to believe that the applicant has committed an offence punishable with death or imprisonment for life or imprisonment for 10 years.
' For the foregoing reasons the bail application is dismissed.
' Before parting with the case it may be observed that the expression of opinion as to the alleged commission of offence or the motive was deemed necessary during consideration of the pleas raised by the learned counsel for the applicant but it must be regarded as mere tentative and should not be looked into at the time of trial in favour or against either party and will not be explited by a party. The trial Court is to give its own independent finding on the basis of evidence to be led before it. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.