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Petition for Special Leave to Appeal No. K‑6 of 1979, decided on 21st ,February, 1979.

(On appeal from the judgment and order of the High Court of Sind, Karachi,. dated 23‑1‑1979 in Bail Application No. 1 of 1979).

Art. 185(3) read with Criminal Procedure Code (V of 1898), S. 497(5)‑-Bail, cancellation of‑State Counsel conceding bail in view of sickness of applicant and judicial authorities cited at Bar and High, Court acting on such concession and allowing bail‑Held, on application for cancella tion of bail : High Court should not have acted on bare concession but should have further gone into questions whether facilities for treatment available in Jail and when case likely to be taken up for trial‑Each case to be decided on its own facts and judicial authorities cited distinguishable and not of invariable application‑Having regard to nature of illness, Supreme Court though could come to a different conclusions yet such fact by itself would not render discretion improper‑Scope of interference against exercise of discretion in such matters‑Limited‑Supreme Court interferes only when something flagrant exists to render discretion improper.

Banaras v. The State 1978 S C M R 191 ; Sher Zaman . v. Muhammad Jamil and another 1978 S C M R 248 ; Riasat Ali v. The State P L D 1977 S C 480 and Abdul Hameed and another v. The State Criminal Appeal No. K‑7 of 1978 distinguished.

Azizullah K. Sheikh, Advocate and S. M. Abbas, Advocate‑on‑Record for Petitioner.

Usman Ghani, Advocate‑General (Sind) and Noor Ahmad Noori, Advocate -on‑Record for the State.

Date of hearing : 21st February, 1979.

.‑The petitioner seeks cancellation of bail granted to Abdul Hameed by the High Court of Sind by order dated 23rd of January, 1979.

A case against Abdul Hameed, Rashidullah, Imdadullah, Sibghatullah, Kifa yatullah, Zabiullah and Hamidullah was registered at Police Station Baberloi under sections 147, 148 and 302 read with section 149 P. P. C., and sec tion 13‑D of the Arms Ordinance on 23rd of June, 1977, for the murder of Qazi Abdullah in front of his house by fire‑arms, on the basis of the F. I. R. lodged by the petitioner. The prosecution case is that there was some dispute over the management of a Madrassa between the parties. On the above date at 9 p. m. while the petitioner was sitting in the Otak of the deceased along with, Saifullah Arbab Lungah and Abdullah son of Walidad, a call was heard, from outside upon which the deceased went out to find out as to who had come followed by the petitioner and the other three persons. They saw in the light of the street lamp Rashidullah, Abdul Hameed and Imdadullah armed with guns; Sibghatullah and Zabiullah holding revolvers; and Kifayatullah and Hameedullah carrying hatchets. On seeing the deceased Rashidullah and Abdul Hameed fired their guns at him causing injuries on his stomach and arm as a result of which he fell down. The others armed with fire‑arms fired in the air while those with hatchets brandished their weapons threateningly. There after they decamped and the petitioner hastily left to lodged the report.

From the spot two crime empties were recovered and we were informed at the Bar that fire‑arms were also produced by Abdul Hameed, Rashidullah and some others.

Both Rashidullah and Abdul Hameed applied for bail in the Court of Sessions and their plea was rejected on merits by the Sessions Judge on 5th of July, 1978. Again they repeated the application for bail before the same Court and an Additional Sessions Judge rejected it by order dated 23rd of December, 1978. Abdul Hameed in none of the applications urged for bail on the ground of illness although he had obtained medical certificates from two Civil Surgeons dated 3rd of August, 1977 and 7th of November, 1978. The nature of illness in the certificates is described as "Diabetese Mellitis" and in the first certificate it is further stated that the disease is controllable and his detention in Jail is not detrimental to his life. The second report is identical with an added suggestion that he should be kept in Jail where he can be under medical supervision.

Consequent upon the refusal of bail, Rashidullah and Abdul Hameed filed an application in the High Court for bail. At the hearing the learned counsel for Rashidullah stated that he would not press bail in his case. He, however, urged for bail for Abdul Hameed on the basis of the aforementioned certificates contending at the same time that being a diabetic patient he needed constant care and special diet which facilities were not available in Jail. His case, according to him, was covered by the proviso to subsection (1) of section 497, Cr. P. C. He also urged that as there was delay in the trial, this ground should also be taken into consideration. In support of his contentions he relied on Banaras v. The State (1978SCMR191), Sher Zaman v. Muhammad Jamil and another (1978SCMR 248), Riasat Ali v. The State (P L D 1977 S C 480) and Abdul Hameed and an other v. The State (Criminal Appeal No. K‑7 of 1978). The learned Assistant Advocate‑General. Sind, Mr. Mazhar Hassan Ali, conceded bail "in view of the sickness of the applicant Abdul Hameed and the aforecited cases". The High Court acted on his concession and allowed bail to Abdul Hameed.

In seeking leave to appeal the learned counsel for the petitioner contends that the High Court had exercised its discretion improperly in allowing bail to Abdul Hameed when, according to the medical certificates, the disease was not such as to make his detention in jail dangerous to life ; and that it could be controlled by administering drugs under medical supervisions in Jail. As such his case is not covered by the proviso to subsection (1) of section 497, Cr. P. C. We feel that the High Court should not have acted on the bare concession but should have further gone into the questions : (i) as to whether the facilities for treatment were available in Jail ; and (ii) a to when the case was likely to be taken up for trial by the Sessions Court. The cases cited are distinguishable on facts and the criterion for granting in those cases cannot be of invariable application. Each case has to be decided on its own facts ; and if we were to decide the question of bail in the present case, we might have come to a different conclusion having regard to the nature of the illness but that by itself would not render the discretion improper. The scope of interference against an exercise of discretion in such matters is limited and it is only when there is something flagrant to render the discretion improve that this Court interferes.

Accordingly, we would not interfere with the order of the High Court. But while dismissing the petition we would observe that the petitioner will be free to apply for the cancellation of his bail in case he is found suborning the prosecution evidence.

Petition dismissed

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