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Criminal Miscellaneous No. 4306 of 1968, decided on 11th November 1968.
Cancella tion of bail‑Locus standi to move application‑Person, moving application, neither prosecution witness nor a relation of murdered man‑Such person, held, had no locus standi to prosecute petition and therefore asked to retire‑Matter, however, having come to notice of Court, bail, in circumstances of case, cancelled under S. 497(5).
Nemo for Petitioner.
Munir Ahmad for Respondent.
Rana Maqbool Ahmad for A.‑G. for the State.
Date of hearing : 5th November 19633.
An application was put in by one Zahir Ahmad Suri, tinder section 497(5) read with section 561‑A, Cr. P. C. wherein it was prayed that the bail of Wazir Ahmad Chughtai, granted by this Court, be cancelled and he be remanded to judicial custody. Notice of this application was issued to the respondent and the State on 21st of August 1968.
At the very outset, I may say that in the course of the proceedings it transpired that Zahir Ahmad Suri, the applicant, is not a prosecution witness or a relation of the deceased and as such he had no lochs standi to prosecute this petition. He was asked to retire.
2. It would be seen that the matter has come to the notice of this Court and even if there is no application on behalf of any party yet it is open to this Court in proper circumstance to cancel bail under section 497(5), Cr. P. C.
3. It is necessary to give briefly the facts of this case. Wazir Ahmad Chughtai accused purchased some evacuee agricultural land from one Malik Saeed. This land was situated at Chak Chamriwala in the revenue estate of Mauza Kotla Ismail, District Dera Ghazi Khan. The land was in constructive possession of Peer Baklish deceased and his relations and Ghulam Farid was their tenant. On the day of the incident, Peer Bakhsh deceased and Ghulam Farid "ere present in a field of the aforesaid land which was under turnip cultivation. The accused, along with his servant, Allah Bakhsh, came there and demanded the share of the crop whereupon Peer Bakhsh deceased told him that is would be appropriate for him to ask for the share of the crop through process of law. The accused insisted for his share which resulted in an altercation, whereupon the accused took out his knife and inflicted 3/4 blows to Peer Bakhsh deceased. In this assault he was also joined by his servant Allah Bakhsh, who too inflicted knife blows to Peer Bakhsh. The deceased suffered 5 injuries and as a result of these injuries he died instantaneously.
4. The accused made an application to the learned Sessions Judge,' Dera Ghazi Khan, who rejected the same on the 13th February 1968. Aggrieved by the order of the Sessions Judge, Dera Ghazi Khan, he put in Criminal Miscellaneous No. 748 of 1968. It was laid before my learned brother Muhammad Afzal Chaema, J., who in his detailed order dated the 4th of March 1968, observed :‑
" . . . . Even if it may be argued that the visit of the petitioner accompanied by his servant was quite innocent and unmotivated by any such designs, he nevertheless, insisted on getting his share of the produce there and then. The altercation developed into a quarrel. The petitioner opened the attack inflicting in rapid succession four blows on the deceased with his knife, two of which, though skin deep, landed on the neck. The overzealous servant seeing his master engaged in an assault, to demonstrate his loyalty as contended also, took out of the knife and gave the fatal blow to which the deceased succumbed in a few minutes. This in substance is the analysis of the first information report. I am afraid, considering the situation in an objective manner, I have not been able to fully subscribe to the view expressed by the learned counsel for the petitioner that the above account would patently excluded the application of section 34, P. P. C. . . . ."
5. On 30th May 1968, Mr. Muhammad Iqbal, Magistrate First Class, Dera Ghazi Khan, committed the accused along with Allah Bakhsh under section 302/34, P. P. C. to the Court of Sessions Judge, Dera Ghazi Khan, for trial.
6. On 21st of June 1968 the accused presented an application before the Sessions Judge, Dera Ghazi Khan, for bail on health grounds. The same was declined by his order dated 21st June 1968. Consequently, the accused filed Criminal Miscellaneous No. 3291 of 1968 in this Court, wherein it was said that the accused was sick within the meaning of proviso to section 497, Cr. P. C. and being a sick and infirm person he was entitled to bail. Along with the application, the report of the Assistant Medical Officer, Dera Ghazi Khan, was placed. The Assistant Medical Officer in his report dated the 17th June 1968, opined as under :
| "General physical condition | Satisfactory. |
| Cardiovascular system | Heart sounds are heard which are accompanied by murmurs. Pulse rate and blood pressure are within normal limits. |
| Nervous system | No abnormality detected. |
| Bone and Joints | ‑do‑ |
| Castre intestinal system | ‑do‑ |
| Laboratory Report of Urine | Urine tested for sugar in the D. H. Q. H. Pathology Laboratory. No sugar found in the urine which excludes diabetes." |
Keeping in view the above‑mentioned facts at present general health is satisfactory.
This petition was laid before my learned brother, Muhammad Afzal Cheema, J., and it was contended before the learned Judge that the A. M. O. was not a qualified Heart Specialist and even otherwise on the basis of the opinion expressed by him the petitioner should have been allowed bail on ground of infirmity. It was suggested to the learned Judge that the petitioner be examined by a Heart Specialist at Nishtar Medical College, Multan. The learned Judge agreed to the request made at the Bar and directed that the accused be examined by a qualified Heart Specialist at Multan.
7. On record there is a letter dated the Nth of July 196:, from the Administrator, Nishtar Hospital, Multan, to the Deputy Registrar of this Court, wherein it was pointed out, that there was no qualified Heart Specialist in Nishtar Medical College and Hospital, Multan, and that the case was referred to Medical Specialist of the College, who did not examine the accused as identification marks of the individual concerned were not shown in his paper. It was suggested in the letter that the case maybe got examined by the Professor of Cardiology at Mayo Hospital, Lahore. The matter came up for hearing before Mr. Justice Doctor Nasim Hasan Shah. His Lordship admitted the accused to bail and observed as follows :‑
"In the present application for bail, it has been stated that the objection raised by Doctor Mukhtar Ahmad Chishti that he could not examine the petitioner on the ground that his identification marks were not mentioned in the letter, was absolutely meaningless because the petitioner was taken to hospital in police custody, under a letter written by the Jail Superintendent. It did not require any further identification. This journey seriously affected the health of the petitioner, who has now become very serious'. I observe that the treatment accorded to the petitioner in the Nishtar Medical Hospital cannot be described anything but as callous. The Administrator of Nishtar Medical College be asked to obtain the explanation of the Doctors concerned as to why they declined to exemine the petitioner on what, prima facie, appear to be flimsy grounds. This explanation should be submitted to this Court within one month."
8. Criminal Miscellaneous No. 4306 of 1968 was put up before me on 21st of August 1968, and it was contended by Zahir Ahmad Suri that the accused was hale and hearty and was not a heart case and that he had obtained the bail from this Court by fraud and misrepresentation of facts. This matter then came up on the 28th of August 1968. On that day by another Miscellaneous Petition (Cr. M. No. 4485/63), it was urged that tAazir Ahmad Chughtai was deliberately avoiding to appear before the Heart Specialist and it would not be possible to effect service on him through ordinary process of law. The District Magistrate was asked to depute a Sub‑Inspector of Police to effect service on Wazir Ahmad Chughtai. It was also directed that Wazir Ahmad Chughtai should surrender himself for medical examination in the Mayo Hospital, Lahore. the matter was adjourned to 9th of September 1968. On 9th of September 1968, Mr. M. Anwar, advocate, appeared on behalf of the respondent (accused) and stated that the accused v as indisposed and was unable to undertake journey and that he would produce the medical certificate as to his health tomorrow. The case was adjourned to 10th of September 1968. On 10th of September 1968, a certificate of a private medical practitioner was placed on tl e record in which it was slid that Wazir Ahmad Chughtai had been advised complete rest for one month and not to take journey and if taken that would be hazardous to his health. In face of this certificate the Additional District Magistrate, Dera Ghazi Khan, was directed to nominate a senior‑most Medical Officer of the District to examine Wazir Ahmad Chughtai as to his health and the matter was adjourned to 17th of September 1958. On that day the report did not reach and the matter was adjourned. The Medical Superintendent, District Headquarters Hospital, Dera Ghazi Khan, who examined Wazir Ahmad Chughtai on 24th September 1968, in his report dated 25th of September 1968, opined as under :‑
"(1) Temperature as determined by Clinical Thermometer was 99.4 F.
(2) The pulse was 150/p. m. The cause of this cannot be determined immediately. It may or may not be temporary due to excitement.
(3) His blood pressure is 152/85 which is about within normal limits.
(4) There was a murmur on the left side of the chest over the region of the heart, as heard by the stethoscope.
(5) The urine was passed and tested in my presence and in the presence of the Pathologist of this hospital. The report of the Pathologist is as follows :‑
Sugar‑‑‑ ‑2.5 %
It is also added that the urine was passed twice and examined twice in my presence at an interval of about half an hour. The report of the Pathologist is attached in original.
(6) The X‑ray of the chest was taken in my presence and in the presence of the Radiologist and the Radiologist's report is as follows :‑‑
Lung ----------‑‑Clear
Heart shadow‑Normal.
(1) Sugar was detected in the urine, suggesting that he is suffering from diabetes.
(2) There is a murmur in the heart. Whether or not it is congenital and whether or not it has any significance on his health, I cannot say, there being no B. C. G. arrangement in this hospital."
In the course of hearing on 2nd of October 1968, Mr. Munir Ahmad, Advocate, on behalf of the accused, stated that his client would surrender himself for medical examination by the Medical Board at Mayo Hospital, Lahore, within a fortnight, whereupon by my order of even date, the Medical Superintendent of Mayo Hospital, Lahore, was asked to make necessary arrangement for the examination of the accused by a medical expert. The Medical Superintendent asked Professor Muhammad Akhtar Khan, Visiting Physician, Medical Unit No. I, Mayo Hospital, Lahore, to examine Wazir Ahmad Chughtai. His report dated the 6th October 1968, reads as follows
"(1) He complains of dyaphoea on exertion and palpitation for the last 6 or 7 months.
(2) Pain in the left side of the chest, which radiates to the left shoulder. The pain comes as an attack which high may come at any time either on exertion or even at rest, each attack of pain lasting for 2 to 4 minute.
(3) Pains in knee and ankle‑joints both sides since 5 to 6 months.
(4) The patient also reports that he is known diabetic for the last one year.
(5) Patient also reports that his blood pressure was reported to be 175/95 about 8 months ago.
He is middle‑aged well‑built healthy‑looking person. General examination reveals no abnormality. Blood pressure 190/95. Pulse rate 110 mm. Pansystelic (sic) murmur accompanied by a thrill palpable in the fourth intercastal (sic) space near tile sternum. No Positive findings found in any other system.
He has been advised the following investigations:
(1) X‑rays of the chest.
(2) E. C. G.
(3) Glucose tolerance test.
(4) Urine Examination.
(5) Blood for Mb. T. L. C. and D. L. G.
This is a preliminary report about this case. Final report will be ready when these tests are done."
9. From the report datailed above, it is obvious that the accused was asked to appear again before the medical expert, but he did not turn up. The final report of the Doctor dated the 29th October 1968, is as follows :‑
(1) Ex‑ray of the chest is within normal limits.
(2) E. C. G. is also normal except raised heart rate which could be due to excitement or other cause.
(3) His routine blood examination shows no abnormality.
(4) The results of urine and glucose tolerance are inconsistent with each other. The Clinical Pathologist has advised that both these examinations should tae repeated. The results in general and particularly of the urine and glucose (blood sugar) are doubtful. Therefore, no final report on the health of the person can be given unless and until he report) again for re‑examination and for repeating laboratory tests."
10. It would be seen that the accused is in the habit of playing hide‑and‑seek. On one occasion he was successful in obtaining the order of bail from this Court by fraud and misrepresentation of facts. His conduct has teen exposed in the explanation of Doctor Muhijtar Ahmad Chishti, M. R. C. P., Assistant Professor of Medicine, Nishtar Medical College, Multan, which reads
(2) The petitioner's statement in his bail application that he was taken to hospital in police custody' is absolutely false as the person brought before me for examination was not accompanied by aby police escort. The actual position is explained in detail in the following paragraphs.
(3) On 10th July 1968, at about 8 a.m. when the Ward Registrar, Dr. Ishfaq Khan, was also with me, one Mr. Umar Khan, previously E. D. C., Nishtar Hospital and now E. D. C. Highways Multan, came to me with some documents which were marked to me by the Administrator, Nishtar Medical College, Multan. These papers disclosed that the High Court of West Pakistan had directed that a person named Wazir Ahmad son of Bahawal Khan caste Chughtai of D. G. Khan accused of murder under section 302, P. P. C. should be got examined by a Heart Specialist of this Hospital. The case was referred by the Administrator, Nishtar Hospital, to Professor Ahmed Ali in the first instance on 9th July 1968.
(4) Mr. Umar Khan while showing these documents to me stated that the person to be examined .was sitting in the adjacent room. I looked into the papers and saw the man whom he wanted to be examined. There were no identification marks in the documents which could help me in linking that man with the accused person mentioned in the documents the said person was also not hand‑cuffed or escorted by police. This fact is testified by the Registrar of the Ward in his statement dated 3‑8‑1968 of which an attested copy is attached herewith. This created a doubt in my mind about the identity of that person. It will be appreciated that in all cases referred to members of the medical profession they have to be quite sure about the identity of the person to be examined, particularly when he is accused of murder. I, therefore, did not examine that person due to absence of police escort and for want of identification marks. It was thus absolutely in good faith and in most conscientious discharge of duty that I returned the papers to the Administrator with the remarks that the identification marks of the accused were not on record in the documents produced before me.
(5) I may respectfully submit that there was absolutely no intention on my part to evade the examination or in any way to disobey the orders of the honourable High Court. As already explained above my inability to examine the person was based purely on a genuine apprehension about the correct identity of the man, as he had been brought to me by a third person and not by the police, although the case was that of murder.
(6) Before I conclude it seems pertinent to invite your kind attention to a letter dated 4‑7‑1968 (copy enclosed) addressed to you by one Zahir Ahmad Suri of 101/Block No. I, D. G. Khan, of which copies were end used by you to me and to Professor Ahmed Ali and Dr. M. Moazzam Elahi with your No. 9413‑15/NXC dated the 3rd August 1968. In this letter the writer has, inter alia, alleged that the accused Wazir Ahmad Chughtai with the connivance of the D. G. Khan Police, was trying to get the desired certificate by substituting some one else in his place"
11. From the explanation of Doctor Mukhtar Ahmad Chishti detailed above, it is obvious that the accused did not surrender for medical examination and was successful in securing bail from this Court. Again it was after much difficulty that he agreed to surrender himself at Lahore, but finding himself in difficult situation he chose not to appear.
12. I have examined the reports of the medical experts carefully and it can be said with certainty that the accused is not a sick and infirm person.
13. The result is that the order dated the 30th of July 1968, of my learned brother Doctor Nasim Hasan Shah, J., is hereby recalled. The accused is present in Court and has been ordered to be taken in custody.
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