Raja Muhammad Bashir, Advocate has moved the instant application on behalf of petitioners Sabz Ali son of Kajla, Khawand Bakhsh son of Gullo, Khair Jan son of Ellahi Bakhsh and Bengal Khan son of Jan Khan, who are facing trial under section 302/324/34 read with section 147/148/149/120-B, P.P.C. Registered against them at Civil Lines Police Station vide F.I.R. No,65 of 1992, dated the 2-6- 1992.
2. Concisely the facts of the prosecution case are that on 2nd June, 1992, a double door black coloured Pick-up loaded with eight armed persons, out of them few were wearing uniform of Levies Sepoys crossed near the Cafe Farah, Jinnah Road and took turn towards Meezan Chowk. After some time reports of gun-fire were heard from that side, due to which, death of one Mir Salal Akbar Bugti had occurred, who at the relevant time was boarded in a white-coloured Mitsubishi car, along with his Body Guard namely Payara Bugti, who also sustained injuries on his person.
3. The accused were taken into custody on the day of incident and later on they moved a bail application for their release, before the Sessions Judge, who declined bail to them vide order dated 31st August, 1992. Accordingly an Application No,185 of 1992 was moved before this Court, which too met with same fate. In the meanwhile challan was submitted before the Sessions Judge and again a fresh bail application was repeated which was also dismissed on 22nd February, 1993 as such new instant application has been moved on their behalf.
4. Learned counsel for the applicants, urged as under:-
(i) The identification test of the accused was not arranged in a proper manner by the Investigating Officer as has been provided under Rule 26.32 of the Police Rules.
(ii) The statement of the injured Body Guard Payara Bugti is not admissible in law, because he was examined by police much after the date of incident.
(iii) The confessional statement got recorded by the applicant No,4 under section 164, Cr.P.C.
Cannot be used against other applicant facing the same trial.
(iv) The applicant No,4 being an old, infirm and ailing person, on acconnt of the disease of Diabetes Mellitus as per letter dated 16th November, 1992, issued by the Doctor of District Jail, Quetta is entitled for the grant of bail.
5. On the other hand, Mr. Aurangzaib Mir, learned State Counsel urged that in the previous bail application these very grounds, except the ailment of applicant No,4, were considered and rejected as such, in absence of fresh grounds the plea of the applicants for release on bail cannot be considered. However, he contended that the identification parade of the accused was held strictly in accordance to law as per details available in the test report, prepared under the signatures of a Magistrate. The applicant No,4 in his confessional statement had given out exhaustive facts, on the basis whereof, a conspiracy. Was hatched for the commission of effence. In accordance to the provisions of Article 43 of the Qanoon-e-Shandat, 1984, the confessional statement of a maker, can be used as a circumstantial evidence coupled with other facts available on record against the accused facing trial for the same effence. As far as the statement of Payara Bugti is concerned that though was recorded on 16th June, 1992, in which he has named only one accused i,e, Khawand Bin{ but on record there is other evidence to involve the applicants in the commission of offence. As far as the ground in favour of applicant No,4 being an ailing person, is concerned, that itself is not sufficient to enlarge him on bail because the Jail authorities are looking after him properly and if need be, he can be admitted in the Jail Ward of the Civil Hospital, Quetta.
6. It would be expedient to take-up, first of all the question of maintainability of the instant application because in previous application, except the medical ground all other grounds were raised and have been dilated upon. Raja Bashir Ahmad, Advocate contended that as now the challan of the case has been submitted therefore, it constitutes a fresh ground in favour of applicants, but he could not cite a judgment to show that mere filing of the challan, after rejection of earlier bail application, would entitle the accused to move second bail application considering it to be a fresh ground. It is settled principle of law that if the grounds urged in the bail application have been considered and rejected in the first application the second would only be competent if fresh material has come on record, which indicates new developments on the facts, relevant for disposal of bail matter, or any other ground which was not available at the time of hearing of earlier application. As far as filing or non-filing of the challan is concerned, per se it is not to be considered a fresh ground for considering the plea of accused to be released on bail. The scrutiny of the previous bail application reveals that the applicants have stated that the investigation in the case is almost complete which means that soon after the dismissal of the application challan was filed and no new development had occurred, warranting to consider the request of accused for bail. In this behalf the Honble Supreme Court in the case of Saleh Muhammad v. The State 1983 SCM R 341 laid down the following principle:-- "It will be observed that the request of the respondent for bail was once rejected on merits by the first order of the High Court dated 14-10-1980 and normally unless the repeated request was made on grounds, other than those available at the time of the first application, fresh application on merits could not be entertained by the High Court. However, the perusal of the impugned order shows that the decisive consideration for grant of bail was question of delay in concluding the trial."
The above rule of the law was re-considered in the case of State through Advocate-General; N.- W.F.P. v. Zubair and 4 others PLD 1986 Peshawar p.173). Keeping in view the above dictum of the Honble Supreme Court of Pakistan, I am inclined to hold that grounds urged by the learned counsel for the applicants enlisted at Serial Nos.(i) to (iii), were previously agitated before this Court but were not found sufficient to enlarge them on bail. Thus this application to the extent of above grounds is not competent.
7. Now adverting towards the medical ground which was urged for the first time before the trial Court as well as this Court that the applicant No,4 being an old and ailing person is entitled to be released on bail. To substantiate the contention Raja Bashir, Advocate, placed on record a copy of the letter dated 16th November, 1992, issued by the Medical Officer, District Jail, Quetta. For reference the contents of the same are reproduced herein below:-- "The Honourable Court is informed that prisoner Bangul Khan son of Jan Khan Bugti is suffering from Diabetes Mellitus which mentioned previously.
He has also complained of severe arthritis and visual problems. Prisoner was referred to Provincial Hospital, Quetta more than two times. He is under treatment of concerned Physician of named Hospital. General and physical condition of prisoner is not improving. There are no laboratory facilities in District Jail, Quetta."
The perusal of the above document does not indicate that the applicant is not being treated properly for his ailment. Moreover, there is no I suggestion to believe that the applicant No,4 is an old and infirm person. Raja Bashir Ahmad, learned Advocate placed reliance on 1983 PCr.LJ 2177 wherein bail was granted to accused being an aged person, who otherwise was not involved in the commission of offence. He also referred to 1982 SCM R p.975. In this report, concession of bail was extended to the applicant on account of heart ailment. Mr. Aurangzaib Mir learned State Counsel addressed that being an old man itself is not a ground for the release on bail. Reference was made by him to 1968 SCMR 289 and 1970 SCM R 514. On the perusal of these reports, following principle for guidance can be laid down:-- "The benefit of 1st provison to section 497, Cr.P.C. Would only be extended to an accused, if it has been established on record through convincing evidence that he being a sick and infirm person is suffering from such a disease which is not curable in the Jail premises or the hospital. Otherwise being an old person and suffering from ailment treatment of which can be managed in Jail or at local Hospital, the accused would not be entitled for bail. How6er, efforts should be made to improve upon the medical treatment which for the time being he is getting."
The facts of this case are not sufficient to fulfil the test as has been discussed by the Honble Supreme Court particularly in absenCe of the material to conclude that the jail authorities are not offering proper treatment to the applicant Bungal Khan For the aforesaid discussion, I am inclined to hold that no case is made out for admitting the applicants on bail, consequently the application is rejected.