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Criminal Petition for Special Leave to Appeal No. 73/R of 1979, decided on 3rd October, 1979.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 7‑7‑1979 passed in Cr. Miss. No. 323 of 1979).

Criminal Procedure Code (V of 1898)‑

‑‑‑ S. 497 (2)‑Bail‑Petitioner suffering from Asthmatic Bronchitis of a chronic type with left pulmonary T. B.‑Illness not of type as to render petitioner an infirm person within meaning of second proviso to S. 497, Cr. P. C.‑According to Medical Board, petitioner needing only proper treatment whether inside or outside jail‑Penal Code (XLV of 1860), Ss. 302 & 307/34.

A. G. Chaudhry

Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 3rd October, 1979.

‑The petitioner, who is at present in judicial custody, is charged under section 302/307/34, P.

P. C. for the double murders of Gul Muhammad and Sher Sultan and for having attempted on the life of complainant Wahid Gul. In order to secure bail for himself on the ground of infirmity within the meaning of the second proviso to section 497, Cr. P. C., he first applied to the Sessions Judge but his application was dismissed. Thereafter he made an application to the High Court but his application was dismissed vide the impugned order.

We have heard Mr. A. G. Chaudhry, the learned counsel for the petitioner. According to the report of the Registry this petition is barrel by seven days. But we condone the delay and proceed to dispose of the petition on merits.

The learned counsel contended that the petitioner was indeed an infirm person within the meaning of the second proviso to section 497, Cr. P. C.. and consequently the High Court was in error not to release him on bail. In support of his contention, the learned counsel relied on three medical reports

(1) A report of one Doctor Murad, a Private Practitioner ;

(2) A report of the Jail Doctor and

(3) A report of the Medical Board which had examined the petitioner for his ailment.

Now it is true that in all the said reports the petitioner is said to be suffering from Asthmatic Bronchitis of a chronic type with left pulmonary T. B. But the learned Judge in the High Court felt satisfied that the said illness was not of the type, which would render the petitioner an infirm person within the meaning of the second proviso to section 497, Cr. P. C., and consequently dismissed his petition observing that he could be satisfactorily treated in jail hospital.

We are quite inclined to agree with the said finding recorded in the High Court. It is true that according to the report of the private doctor of the petitioner, namely, Doctor Muhammad Murad he remained under hi treatment for the last one year. But even Doctor Murad does not claim that during the said period the petitioner had remained with him as a indoor patient. The opinion of the Jail doctor no doubt is that the petitioner is in need of the treatment of a Specialist. But according to the Medical Board of three eminent doctors all that the petitioner needs is proper treatment irrespective of the fact whether he is inside or outside the jail. In this view of the matter, the learned counsel for the petitioner was unable to contend that the order passed by the learned Judge in the High Court was perverse or unreasonable.

This petition is, therefore, dismissed. We however, observe that if the petitioner is in need of any specialized treatment it would be the burden of the jail authorities to provide the same subject of course to the jail rules relating to that subject.

Petition dismissed‑

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