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Criminal Appeal No. 18 of 1969, decided on 31st March 1969.

(On appeal from the judgment, and order of the High Court of West Pakistan, Lahore, dated the 27th November 1968, in Criminal Miscellaneous No. 4902 of 1968).

S. 497(1)‑Person accused of non‑bailable offence, an old man of 70 and medical reports confirming fact that he was partially crippled and victim of several ailments‑High Court nonetheless refusing bail holding that Jail Doctors were "inclined to support under‑trial prisoners with favourable reports"‑Held, discretion was not exercised on Sound judicial principles; High Court was not justified in being influenced by impressions acquired otherwise than from records of case.

Kh. A. Waheed, Advocate Supreme Court instructed by Hamid Aslam Qureshi, Attorney for Appellant.

Dilawar Mahmood, Assistant Advocate‑General West Pakistan (Abdul Hamid, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.

Date of hearing : 31st March 1969.

‑This appeal, by special leave, arises from an order of a learned Single Judge of the High Court of West Pakistan refusing to enlarge the appellant on bail.

The appellant, who is an old man verging on 70, is suffering also from certain physical deformities and illnesses. He was arrested along with 17 other persons in a case under sections 302/307/148/149 of the Pakistan Penal Code in March 1958. The only part ascribed to him in the first information report is that he raised a lalkara.

He applied, on two previous occasions, for release on bail but his applications were rejected by the High Court in July and September 1968, respectively. He finally applied on the 23rd of September 1968, for bail under the proviso to subsection (1) of section 497 of the Code of Criminal Procedure. The High Court first called for a report from the Jail Doctor. The latter reported that the appellant was approximately 65/68 years old and was under treatment for T. B. and arthritis of left hip‑joint since three months and was partially crippled due to a deformed left hip -joint. He was also reported to have suffered from severe attacks of cardiac pain in the month of August 1968.

The High Court, however, at the request of the learned Additional Advocate‑General, again referred the appellant's case to the Medical Superintendent, District Headquarters Hospital, Sahiwal. The latter too confirmed that the appellant who was an old and infirm person of nearly 70 years of age, was suffering from old diabetes, was anaemic and had chronic cough with expectoration. X‑ray examination had also revealed that there was an old fracture on the neck of the left femur due to which he limped. The X‑ray of the chest also showed signs of chronic bronchitis.

Notwithstanding such substantial concurrence between the reports of the Medical Superintendent and the Jail Doctor, the High Court took the view that since the Medical Superintendent had not, in so many words, mentioned that the appellant was suffering from T. B. or any heart disease, the Jail Doctor had tried to support the appellant with a favourable report. This appeared to have influenced the learned Judge in the High Court to such an extent that he over‑looked the other pints of co incidence between the two reports. He formed an impression that Jail Doctors were "inclined to support the under‑trial prisoners and convicts with favourable reports", and this tendency had to be checked and discouraged. The appellant was unfor tunately made the victim of this impression for which there does not appear to be any material on the record of this case.

The learned Judge was not, in our opinion, justified in allowing himself to be influenced by impressions acquired other wise than from the records of the particular case before him or from personal knowledge culled from different sources.

If ever there was a case to which the proviso to section 497(i) of the Code of Criminal Procedure applied, the present was, in our opinion, such a case. Here was a very old man suffering from a physical deformity and from various other illnesses, which clearly showed that the condition of his health was such that he could not only be described as being "sick" and "infirm" but also as being so sick and infirm that his further detention in Jail would be likely to lead to serious deterioration in his condition.

It is true that the Medical Superintendent does not, in so many words, mention that the appellant is suffering from tuberculosis of the lungs but he does say that the X‑ray examina tion of his lungs showed chronic bronchitis and that the appellant was suffering from chronic cough with expectoration. It may well be that further clinical analysis of the expectoration may have revealed the presence of T. B. germs, but even otherwise it cannot be said that this finding belies the finding of the Jail Doctor that the patient was suffering from T. B. Severe bronchitis too may produce symptoms analogous to T. B.

As for the cardiac trouble it was again unfortunately over looked that the Medical Superintendent examined the appellant at the end of October 1968, whereas the cardiac pain, referred to by the Jail Doctor, had‑occurred in August 1968. The cardiac pain may well have responded to treatment in the meantimes specially if it was only anginal plain.

In these circumstances, we cannot help observing that the learned Judge has not, ill dealing with the application of the appellant, exercised his discretion upon sound judicial principles but upon impressions formed about reports of Jail Doctors in other cases. After the report of the Medical Superintendent had been obtained it became the duty of the Court to consider whether on the basis of that report the appellant's case fell within the proviso of section 497 (i) of the Code of Criminal Procedure, regardless of what the Jail Doctor may or may not have said. This was not done, for, the latter report too clearly discloses that the appellant is sick and infirm.

This appeal is, accordingly, allowed, the order of the High Court is set aside and the ad interim bail already granted to the appellant is hereby confirmed until, for proper reasons, it is cancelled by the Sessions Court after the committal, if any, of the appellant.

Appeal accepted.

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