Muhammad Umar, the respondent No.1, who was detained in Crime No.31 of 1984, Thul Police Station, under section 307/326/114/34, P.P.C., applied for bail before IInd Assistant Sessions Judge, Jacobabad, but his prayer was refused vide order dated 16-1-1991. He then approached the Court of Session Jacobabad, where he repeated his prayer. The application was entertained by Incharge Sessions Judge who allowed the bail to respondent No.1 mainly on the ground of old age vide order dated 21-1-1991. It is in these circumstances that the applicant who is the complainant in the above crime has filed the present application under section 497(5), Cr.P.C. Seeking the cancellation of bail granted to respondent No.1.
2. According to the case of the prosecution there was matrimonial dispute between the parties prior to this incident. The daughter of applicant/complainant Pirdad who was engaged with co- accused Mehmood son of respondent No.1 was not given in marriage, which had caused annoyance to respondent No.1 and his sons. It is alleged that on 15-4-1984 at about 2-00 p.m., the respondent No.1 his sons Mehmood and Ali Bux and one Addo caught hold of applicant/complainant and showered hatchet blows on him cutting his both ears and tip of nose.
The incident was witnessed by Lal Muhammad and Allahdad. The report of this incident was lodged on the same day at 4-45 p.m., in which all the four accused were nominated. The respondent No.1 could not be arrested and he remained fugitive for over six years and was declared a proclaimed offender.
3. I have heard Mr. Mumtaz Ali Siddiqui, learned counsel for applicant, Mr. Asadullah Bhutto, learned counsel for respondent No.1, and Mr. Abdul Sattar Chohan, learned counsel for the State. Mr. Chohan has supported the prayer of applicant for cancellation of bail granted to respondent No.1.
4. The perusal of the record shows that applicant/complainant Pirdad had sustained 10 injuries, out of which three were declared as grievous. Both the ears of injured were chopped off and a portion of his nose was also cut. It was in fact a case of disfiguration and required exemplary punishment in case charge is proved. The respondent No.1 was again an absconder for a period of more than six years and his contention that he was unaware about the present case is devoid of any force as his two sons are also accused in this case. The name of respondent No.1 finds place in F.I.R. Which was lodged immediately after the incident and a common role is assigned to all the accused persons. The respondent No.1 has, therefore, no case on merits and his prayer for bail was rightly refused by learned Assistant Sessions Judge, Jacobabad. The learned Incharge Sessions Judge, Jacobabad also did not consider it a fit case for the grant of bail on merits, but he allowed the prayer of bail mainly on the following ground:- "However, the age of the applicant is quite considerable as it is claimed that he is 70 years of age whereas according to the learned trial Court the applicant is about 60 years old, which also can be considered an old age and in view of the above-referred authority the old age is itself infirmity and in such circumstances it will be quite fruitless to allow this old man in the jail."
5. Mr. Mumtaz Ali Siddiqui, learned counsel for the applicant has referred to several points but eventually confined his arguments in the main to the following contentions:--
(i) That the assumption of jurisdiction by learned Incharge Sessions Judge on account of temporary absence of Sessions Judge and the hot haste shown by him while granting bail to respondent No.1 in five days suggests that the respondent No.1 must have thrown his weight into the scales.
(ii) That the age of respondent No.1 shown by his counsel before the trial Court was 60 years which was wrongly mentioned as 70 years before the learned Incharge Sessions Judge, who accepted it without any medical certificate or any other documentary evidence being availabale on record.
(iii) That the old age by itself does not bring the case within the ambit of first proviso to subsection
(1) of section 497, Cr.P.C., which speaks of sickness or infirmity.
(iv) The word "may" used in first proviso to subsection (1) of section 497, Cr.P.C. Does not mean --- shall--- or ---must--- and nobody can claim bail as of right even if his case falls within the purview of the above proviso, which is a matter of discretion to be exercised after taking into consideration the attending circumstances of each case.
6. On the first question whether the Sessions Judge was away for a short period nothing is placed before me and in the absence of any documentary evidence, I am unable to examine this aspect of the case. The Incharge Sessions Judges are, however, advised to refrain from deciding such bail applications during the temporary absence of Sessions Judges so as to avoid the comments of this nature. The cases of Muhammad Nabi and others v. Muhammad Munir Ahmad and others, reported in 19$6 SCMR 1321, and The State v. Amanullah, reported in 1989 P Cr. L J 191 are guiding authorities on this point.
7. Coming now to the second contention about the actual age of respondent No.1, it is clear from the order of learned IInd Assistant Sessions Judge that according to his own case the age of respondent No.1 was 60 years. The counsel for respondent No.1, however, improved this statement by contending that respondent No.1 was 70 years old and this statement was taken to be correct by learned, Incharge Sessions Judge who even did not care to refer him for medical examination.
No other documentary evidence was also available on record to reach a conclusion of this nature.
The conclusion of learned Incharge Sessions Judge about the age of respondent No.1 is thus amazing.
8. It is the third contention urged by Mr. Siddiqui, learned counsel for applicant that has great importance. This quesion was also considered by the Supreme Court in the case of Hakim Ali and 3 others v. The State, reported in 1979 SCMR 114, wherein it was observed:-- "It was next submitted that petitioners 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; an entry from the birth register is produced showing that a son was born to Ghulam Muhammad on 2-4-1908. Reliance cannot be placed on this document vis-a-vis both the petitioners. Besides, the absence of the name of the newborn on it makes it highly doubtful. It has also not been shown that these petitioners were sick or infirm to attract the concession of bail envisaged in the proviso aforesaid."
9. This view was reiterated by the Supreme Court in the case of Gul Ahmed v. Masam Khan and 3 others, reported in 1977 SCMR 27, wherein it was remarked:-- "As regards the case of Masam Khan sought to be distinguished on ground of old age, we find that unlike the position in Nur Ilahi v. The State and 2 others pressed into service by the learned counsel, there has been no medical evidence in support of the old age of Masam Khan, which again would not necessarily indicate infirmity, the only relevant legal consideration in his case. This authority does not, therefore, help him.
10. In the case of Muhammad Bux v. The State reported in 1989 P Cr. L J 193, my learned brother Dr. Tanzil-ur-Rehman, J. (as he then was) also considered this question and answered it in the following words:-- "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 anything 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."
11. The case of Abdul Jabbar and another v. The State reported in 1977 SCMR 50, certainly appears to lend some colour to the view taken by learned Incharge Sessions Judge. The facts of the reported case are not on all fours with the facts of the present case and a careful examination of the reported case will show that the main ground which prevailed upon the learned Judges is that the accused in that case was not responsible for causing fatal blow. Again the authority of the above reported decision has been considerably weakened by the latest pronouncement of .The Supreme Court in the case of Hakim Ali referred to above.
12. On a true construction of the first proviso to subsection (1) of section 497, Cr.P.C., it would appear that it is discretionary with the Court to release an accused person on bail or not even if his case is covered by the above proviso. It is alleged that the respondent No.1 and his associates acted with cruelty by cutting both the ears of applicant/complainant Pirdad and also the tip of his nose.
Therefore, there was hardly any occasion to exercise the discretion in his favour and that too so hurriedly.
13. The High Court would be loath to allow the prayer of cancellation of bail, but where it appears that the bail was granted by wrong exercise of jurisdiction by ignoring the specific prohibition of law, it is the duty of this Court to cancel the bail so granted. I would, therefore, accept the application filed by applicant under section 497(5), Cr.P.C- and cancel the bail granted to respondent No.1 by learned Incharge Sessions Judge, Jacobabad. The respondent No.1 shall surrender before the trial Court forthwith and in case he fails to appear before the said Court within ten days from the receipt of this order the trial Court shall take necessary steps for remanding him to custody.
14. It is needless to observe that if at any stage it appears to the trial Court through medical evidence that the detention of respondent No.1 in prison is detrimental to his life or health or that he is infirm, it will be open to it to exercise the discretion without being influenced from any observations made in this order, which are tentative in nature.