Malik Liaqat Ali petitioner has moved the instant petition seeking after arrest bail in case F.I.R. No.514 dated 20-6-2001 under sections 302/148/149, P.P.C., registered with Police Station City Muzafargarh.
2. The above mentioned case has been registered on the statement of one Ghulam Muhammad.
He alleged therein that his nephew Amir Bakhsh had taken land and date trees on lease from Malik Imtiaz Ali, Advocate. He had cultivated the land. Malik Liaqat Ali (petitioner) and Dr. Muhammad Ali, nephews of Malik Imtiaz Ali had called some persons from outside the District to occupy the land and date trees. Amir Bakhsh, his nephew carte to know about their such design and he informed Malik Imtiaz Ali, Advocate about the same. On 20-6-2001 at about 4-30 p.m. He along with his nephew, Bashir Ahmed and Muhammad Azam was guarding the land and trees. He, Munshi Mashkoor Ahmed and Driver Akhtar Ali came to him. They were still talking when all of a sudden Liaqat Ali, Advocate (petitioner) armed with rifle, Dr. Muhammad Ali armed with rifle, Billa armed with Carbine, his brother armed with .12 bore gun and Iqbal peon with Carbine came there and raised Lalkara that they should quit the land, otherwise, they would be killed. Liaqat Ali fired from his rifle at Malik Imtiaz Ali hitting on his right leg and due to the same it was fractured and bleeding started therefrom. He fell down. Then Dr. Muhammad Ali fired from his rifle at Bashir Ahmed hitting on his right flank, who also fell down and became unconscious. Billa fired with his carbine which hit Muhammad Azam on his left elbow. The remaining accused Iqbal peon and brother of Billa also made indiscriminate firing with their carbines. On the report of fire and their alarm Haq Nawaz and Nazir Ahmed, who were present at the Bus-Stop were attracted to the spot and witnessed the occurrence. They beseeched the accused in the name of Allah Almighty, and the Prophet. The accused thereafter, went to their houses with their respective weapons. The condition of Bashir Ahmed was serious, who was carried to District Hospital by Akhtar Ali driver but he succumbed to his injuries there while Malik Imtiaz Ali and Muhammad Azam are present at the spot in injured condition.
3. The motive behind the occurrence is dispute over possession of land. The accused on the same in prosecution of common object, of the unlawful assembly formed by them have committed the murder of Bashir Ahmad and injured Malik Imtiaz Ali and Muhammad Azam. It may be mentioned that Malik Imtiaz Ali also expired due to the injuries thereafter.
4. It has been contended on behalf of the petitioner that he has falsely been roped in on account of dispute over land; that in fact Malik Imtiaz Ali, who was retired S.P. Wanted to usurp their land and he in order, to achieve that object involved him in the instant case falsely; that possession of the land was with them and not with the complainant party which is evident from the fact in the order of Civil Court on application for temporary injunction brought by Mst. Irshad Batool, the were of Malik Imtiaz Ali and the same show that his side did not have the motive to commit the crime as alleged in the F.I.R.; that he has been ascribed rifle shot at the right leg of Malik Imtiaz Ali deceased and such an injury cannot result into death of an injured person; that a daughter and two sons-in- law of Malik Imtiaz deceased are doctors and in fact they have manoeuvred the report from the doctors in respect of cause of his death due to that injury while at one stage it was found that his ribs were broken and these were the cause of his death that this inconsistency in the narration of the F.I.R. Particularly as regards the part ascribed to him of firing at the said deceased on his right leg and the Post-mortem Report makes his case as one of further enquiry; that he did, not repeat the fire at the deceased; that the prosecution subsequently has tried to improve upon its case by attributing him indiscriminate firing with rifle; that he is seriously ill since the year 1991 due to the attack of paralysis as a consequence of which his right side of the body has been affected badly and he cannot use his limbs of that side of the body and so is evident from many reports of different Institutions like the Department of Neuro-surgery, Atomic Energy Medical Centre, Mayo Hospital, Lahore and Pain Management Centre, Lahore, etc; that he has not only suffered from paralysis attack but is also hypertension and so is sick and infirm person within the meaning of 1st proviso to section 497(1), Cr.P.C.; that treatment of choice is right of every accused and the same cannot be denied to him; that he is a practising lawyer; that due to his detention in jail there is likelihood of further deterioration of his health and same can be detrimental to his life as well; and that though his trial has commenced but the same is not a ground to refuse him bail particularly in view of his serious ailment. In support of the above submissions, reliance has been placed upon:-- Muhammad Ismail v. Muhammad Rafique and another (PLD 1999 SC 585); Banaras v. The State (1979 SCM R 191) (sic); Haji Mir Aftab v. The State (1979 SCM R 320); Zakhim Khan Masood v. The State 1998 SCM R 1065 and Mian Manzoor Ahmed Wattoo v. The State (2000 SCM R 107).
5. As against the same, the learned State Counsel assisted by that of complainant has opposed the petition on the ground that he is named in the F.I.R.; that he has been specifically attributed rifle shot at the right leg of Malik Imtiaz Ali deceased and the same proved to be fatal; that he and his co-accused had the motive to forcibly occupy the land and date trees in possession of the complainant party and in order to accomplish their design they have resorted to firing at the spot resulting into the death of two persons and injuries to third one; that deeper questions relating to the merits of the case cannot be entered into at this stage as the same can be prejudicial to either party at the trial; that-he is neither sick nor infirm person and the same is evident from the latest report of Medical Board available on the file and their trial has commenced and out of 26 cited witnesses some have been examined and some given up and out of the remaining 16, some more are likely to be given up and so conclusion of trial is in sight while they (accused) are using tactics to delay the same.
6. I have considered the submissions made by both the sides with the help of available record.
7. The august Supreme Court in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 565) was pleased to hold that practice of superior Court is that when a murder case is fixed for hearing, ordinarily bail applications are not decided on merits and matter is left to the discretion of the trial Court and this question is directly relatable to the "question of pre--judice" and when an accused becomes entitled as of right to bail under section 497(2), Cr.P.C. The same cannot be withheld on the ground of "prejudice" because the former is relatable to the examination and grant of right and the latter to practice. Therefore, in view of the above, I proceed to examine the case of the petitioner for bail in the light of the contentions raised by the parties, particularly on the ground of sickness and infirmity.
8. He has been ascribed ride shot to Malik Imtiaz Ali deceased hitting on his right leg. Due to the same, it was fractured. According to the subsequent Medical Report this injury has resulted into his death. At this stage to enter into correctness or otherwise of any other report on this aspect would amount to deeper appreciation of evidence and the same may result into prejudice to either of the parties at their trial. I, therefore, refrain from making any comment on this aspect of the matter.
9. However, as said above that he has been attributed fatal shot to the deceased Imtiaz Ali. The motive is also ascribed to him. The question that if the complainant party was in possession of the land or not at the relevant time is also a matter which can appropriately be dealt with after recording evidence. Any comment on this aspect of the matter, which in fact relates to the motive part of the story as narrated in the F.I.R., can also be prejudicial to either part at the trial. It is also settled proposition in criminal administration of justice that while dealing with such-like question i.e. The question of grant or otherwise of bail any observation relating to the deeper merits of case, is to be avoided.
10. As regards the ground of sickness and infirmity of the petitioner, though the report from some Institutions have been relied upon by his side but the fact also remains that very lately a report of Medical Board constituted for examination of the petitioner through Medical Superintendent, District Headquarter Hospital, Muzafargarh has been received in this Court. The relevant portion of that report would be quite advantageous to be reproduced here for proper appreciation and determination of such ground:-- "So keeping in view of the above reports there is mild hypertension, slight weakness of right hand and leg due to hold CVA right side. There are slight early degenerative changes in dorslumber spine due to age. However, patient is stable at present there is no acute and serious problem and treatment has been advised as OPD case in the jail under the supervisions of Medical Officer Jail and there is nothing to suggest that he is suffering from any acute or serious illness at the time of examination. "
11. The above report clearly shows that the petitioner was not suffering from any acute or serious ailment at the time of his examination and the Medical Board has categorically mentioned that there is no acute and serious trouble with the petitioner and treatment has been advised to him as an OPD case in jail under the supervision of the Medical Officer there. It has also been mentioned in the report that he is stable at present. No doubt treatment of choice is right of every ailing person but the report or Medical Board comprising of Physion. Surgeon and M.S. Himself, of the aforesaid hospital is that he is not suffering from any serious problem or ailment, which may be requiring treatment outside Jail. It has been suggested that his treatment as an OPD case is possible in jail under the supervision of the Medical Officer.
12. In view of this position the other authorities referred to above by his side are of no avail to his case.
13. I therefore, do not find him entitled to bail at this stage. The petition therefore, is dismissed.
However, the learned trial Court is directed to conclude his trial as expeditiously as possible under intimation to D.R.(J) of this Court.