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Criminal Petition for Special- Leave to Appeal No. 296 of 1977, decided on 5th December, 1977.

(On appeal from the judgment and order of the Lahore High Court -ated 29th November, 1977 in Cr. Misc. 2464/B of 1977).

--- S. 497 (1), proviso-Bail - Infirm persons-Proviso to S. 497(1)--Held, merely confers discretion on Court to admit in arm person to bail but does not entitle Bran( 96 bail as a matter of right).

Muhammad lqbal Bhatti, Advocate assisted by Mahmood A. Oureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing :. 5th December, 1977.

-The petitioner and his brother are being tried under section 302134, P. P. C. for the murder of Jafar Hussain. The peti tioner after his arrest had applied for bail in the Sessions Court on the ground of illness, and this application was allowed by the Additional Sessions Judge, Lahore on 26th November, 1976. On 23rd June, 1977, Zaid Hussain, the brother of the deceased, filed an application for the cancel lation, of bail in the Lahore High Court on the ground that the petitioner was not suffering from any serious illness, therefore, after notice to the petitioner, the Lahore High Court directed him to be examined by Dr. Bashir Ahmad, Neuro Surgeon, of the Mayo Hospital, Lahore. The petitioner was examined by Dr. Bashir Ahmad on 28th November, 1977 and according to learned counsel, Dr. Bashir Ahmad submitted a report that the petitioner was suffering from back ache and sciatica and the advice was that he should be admitted into hospital. But the learned Judge held that it was clear from Dr. Bashir Ahmad's opinion that the petitioner was not suffering from any serious disease, therefore, he cancelled the bail granted to him by the lower Court. Hence, this petition for leave .

Learned counsel relied on the earlier order of the Sessions Court and as submitted by him this order states that the petitioner had been treated in hospital. However, this order is of no help to the petitioner's case because he had been discharged after his treatment in the Mayo Hospital and the question was of his condition at the time when his case was examined by the High Court. Learned counsel then submitted that the High Court had misread Dr. Bashir Ahmad's report. But, despite this submission this alleged report, on which the petition for leave is based, has not been filed. However, in the interest of justice, we permitted learned counsel to show us a photostat copy of what Dr. Bashir Ahmad had written and on examining it, we agree with the view of the High Court that the document on which the petitioner relies is not fit to be described as a report. It is, as observed by the learned Judge, a prescrip tion for medicines, on a chit. Learned counsel then drew our attention to the words "admission advice" on this chit and his submission was that these words meant that the petitioner required treatment in hospital. The words "admission advice" appear to have been written in a handwriting different from the other handwriting on the piece of paper shown to us and we are not impressed by it. No case has been made out for interfer ing with the well-considered exercise of discretion by the High Court.

Learned counsel then submitted that the discretion vested in the Courts under the 2nd proviso as subsection (1) of section 497, Cr. P. C. to release persons on bail extended not only to sick persons but to infirm persons also, therefore, even if the chit relied upon by him was not sufficient to show that the petitioner was a sick person, it was uH)cient to show that he wag infirm and therefore, entitled to bail.

The submission is based on a misreading of the 2nd proviso to suls section (1) of section 497, Cr. C. P, The proviso reads:

Provided further that the Court may direct that any person under the age of sixteen years or Any woman or any sick or infirm person accused of such an offence be released on bail."

This proviso does not entitle an infirm person to bail. It merely confers discretion on the Court to grant bail in an appropriate ease and on the facts of the instant case, the learned Judge held that it was not a fit case for. the grant of bail. We agree with this view and the petition is dismissed.

Petition dismissed.

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