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Criminal Miscellaneous No. 2 of 1983 in Criminal Appeal No. 41 of 1984, decided on 12th November, 1984.

- Ss. 426 & 497, proviso (1)-Penal Code (XLV of 1860), Ss. 302 & 148/149-Suspension of sentence-Accused, admittedly a patient of advanced bilateral pulmonary tuberculosis and even during trial remained on bail on ground of sickness-Discretion of Court to grant bail to sick person, held, could not be whittled down by report of Medical Board that ailment of accused was treatable in jail hospital and was not life threatening-Where disease was serious and likely to continue for indefinite duration, case, held further, would fall under S. 497, proviso (1), Cr. P. C.

Muhammad Hayat v. The State 1983 P Cr. L J 691 ref.

Fatz Muhammad Khan Khosa for Petitioner.

Shaflgur-ur-Rehman for the State.

Muhammad Ismail petitioner alongwith 5 others stands convicted under section 302/149, P. P. C. and sentenced to imprisonment for life and fine by the learned Additional Sessions Judge, Rajanpur on 26-2-1983.

He has applied for suspension of the sentence on the ground that he is a patient of advanced Bilateral Pulmonary Tuberculosis and even during the trial of the case he remained on bail on the ground of sickness. It is contended that he urgently needs fresh open air and specialist's treatment for his survival and his case is covered by proviso 1 of section 497, Cr. P. C.

3. A Medical Board headed by Medical Superintendent B. V. Hospital, Bahawalpur was constituted for the examination of the petitioner to find out the disease he was suffering from and whether the ailment was of the type that his detention in Jail would pose a threat to his life and whether sufficient arrangements for his treatment were available in the Jail hospital. The Board has reported that the petitioner is suffering from Bilateral Pulmonary Tuberculosis and that his detention is not life threatening for him and he can be treated in the Jail hospital if isolated from other prisoners.

4. I have heard the learned counsel for the petitioner and the State. The latter has opposed the bail on the ground that aliment of the petitioner is treatable in the Jail hospital and is not life threatening. But he was failed to cite any authority in support of his submissions that if a sick person can be given treatment inside the Jail, he is not entitled to the concession of bail. The law has vested a discretion in the Court to enlarge an accused on bail if he. is sick. This discretion cannot be whittled down by any such limitation. However, in case of temporary and ordinary sickness the Court may not be persuaded to grant relief to an accused person but where the disease is serious and likely to continue for indefinite duration the case would clearly fall under the proviso. The petitioner cannot have a treatment of his choice in the Jail hospital nor can he utilize the service of a specialist.