' A case under sections 302, 307, 379/34, P. P. C. Was registered against the petitioner and his co- accused Muhammad Ashiq on 17-3.1976 on the allegation that while Fidaullah (deceased) was passing in front of the house of the accused, the petitioner gave a seria blow on the head of Fidaullah on account of which the latter fell down. A sum of Rs, 1,500 was also taken away from the pocket of the deceased by the co-accused. The motive given in the F. I. R. Was that the deceased was carrying on with Mst. Nuzhat Rana who had been married about 10/12 days earlier with the petitioner and the petitioner had come to know about the illicit liasion. The accused was arrested soon thereafter. He applied for bail vide Criminal Miscellaneous No 307/B of 1977 which was dismissed on 27-1-1977. The petitioner, again, filed an application for bail bearing No, 3696/B of 1977 in which he had prayed for bail to appear in F. Sc. Examination having been issued Roll No, He was allowed interim bail vide order dated 14-9-1977 to appear in .The said examination. The bail has been extended from time to time. On 5-11-1977, the petitioner filed Criminal Miscellaneous No, 4442/B of 1977 for bail on the grounds that he had fallen ill and was vomiting blood as well as on merits. It was stated that he had been admitted as an emergency case in Aziz Bhatti Shaheed Hospital, Gujrat. A report was called for from the Medical Superintendent who submitted his report on 5-12-1977 in which he referred to the result of X-Ray showing "deformed duodenalcap with ulceration of Duedenal Mucosa in its 1st part. Ch. Duedenal Ulcer". However, the Medical Superintendent recommended that the petitioner should be examined from the Mayo Hospital. The petitioner was required to appear before the Medical Officer, Mayo Hospital, Lahore who, after examination, has submitted a report the conclusion of which is "Careful examination and investigation have revealed that the above-named person has got Hook worm infestation of the intestine but there is no evidence of any other serious disease which can prove dangerous to his life".
2. Learned counsel for the petitioner in the aforementioned two Criminal Miscellaneous Nos. 3696/B of 1977 and 4442/B of 1977 has contended that in spite of dismissal of the earlier application for bail on merits, the petitioner is entitled to reconsideration of the matter on the point that the deceased Fidaullah had given sudden and grave provocation to the petitioner in so far as that according to the case of the prosecution itself as disclosed in the F. I. R. The deceased was carrying on with Mst.
Nuzhat Rana and after her marriage with the petitioner about 10 days earlier than the incident, the deceased followed the lady when the lady was accompanied by her husband and the latter prohibited the deceased from doing so.' Again during the early part of the night the deceased reached up to the house of the petitioner for his ill-motives. The petitioner inflicted only a single blow on the deceased and there was no intention of committing the murder. Learned counsel has placed reliance on Riasat Ali v. Ghulam Muhammad and another (1) to contend that a point not earlier adjudicated upon can be taken into consideration in a subsequent application. He has, next, contended that the petitioner had been vomitting blood and that with great care and treatment, he has though improved his health but still it is not such that he can undergo the rigours of imprisonment. He seeks bail on the ground of infirmity and sickness. The learned counsel has also submitted that the case was registered on 17-3-1976 and the petitioner remained in jail until he was allowed bail on 14-9-1977. The case of the petitioner is not likely to be put to trial for another two years as reported by the learned Sessions Judge in Criminal Miscellaneous No, 3509/B of 1977.
Learned counsel contends that if the petitioner is not allowed to remain on bail and has to go to Jail, in view of his health and long detention, he would suffer irreparably and ends of law or justice would not, by any means, be enhanced. He has, lastly, contended that since after the transmission of the case to the Sessions Court, the case stands adjourned sine die and no orders are being passed by the learned Sessions Judge. Detention of the petitioner would be illegal in view of the amended section 354, Cr. P. C. And that in such circumstances accused petitioners have been allowed bail by this Court in various cases.
3. Learned counsel for the complainant has submitted that the application of the petitioner for bail had already been dismissed on merits and there is no justifiable reason to go all over again. As regards medical `ground, the learned counsel submits that according to the latest report, the petitioner is not suffering from any serious illness. As regards delay, the learned counsel submits that is on account of amendment in the law and on this ground alone no bail can be granted.
Learned counsel relies on Barkhurdar v. Liaquat Ali and 2 others (2).
4. Learned counsel for the State supports the learned counsel for the complainant and opposes the grant of bail to the petitioner. He has also pointed out that the petitioner has remained in Jail for a period of only 11 years and thereafter has remained on bail firstly for appearing in an Examination and then on medical grounds.
5. There is no doubt that the petitioner's application for bail was earlier dismissed by this Court on merits. Motive was mentioned in the F. I R. But it was not argued by the petitioner that the deceased had illicit relations with Mst. Nuzhat Rana who had recently got married with the petitioner and the deceased was still following her even when she was accompanied by her husband. Although the conduct of the deceased may not give rise to a licence to the petitioner to commit murder, yet, that is a circumstance which has to be kept in view. The state of health of the petitioner has been indifferent. He vomitted blood and Was admitted as an emergency case in the Hospital. The Medical Superintendent of the Hospital examined and reported "Deformed Duedenalcap with Ulceration of Duedneal Mucosa in its 1st part. Ch. Duedenal Ulcer." However, he recommended examination by the Mayo Hospital, Lahore. The Visiting Physician, Mayo Hospital has A examined the petitioner and stated that the petitioner "has got hook worm infestation of the intestine but there is no evidence of any other serious disease which can prove dangerous to his life." Apparently the accused {{FOOT NOTE}}
(1) PLD 1968 SC 353 (2) PLD 1977 SC 434 {{FOOT NOTE}} seems to have recovered but his return to jail and likely relapse cannot be overlooked. The petitioner remained in Jail from March 1976, until September 1977, i,e,, nearly 1'; years. The case is likely to be put to trial after two years. The petitioner has been a student and appeared in an Intermediate Examination of the Board of Secondary Education. It is stated that he has not passed the examination and has yet to appear again in the said examination. In all the circumstances of the case put together, it appears that the petitioner is entitled to bail. For all the reasons stated above, the bail earlier granted to the petitioner is hereby confirmed. Thus, the two Criminal Miscellaneous No, 3696/B of 1977 and Criminal Miscellaneous No, 4442/B of 1977 are disposed of.