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Criminal Miscellaneous No. 1855-B of 1986, decided on 14th August, 1986.

---S. 497--Penal Code (XLV of 1860). Ss. 302, 307, 332 & 353/34- Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--Bail, grant of--Medical ground--Accused found suffering from ischaemic heart disease, angina pectoris and artorial hypertension requiring regular check up avoiding physical and mental stress--Case of accused on account of his ailment, held, would clearly fall under first proviso to S. 497(1), Cr.P.C. and accused would be entitled to treatment of his own choice which could not be available in Jail hospital- Bail allowed in circumstances.

Muhammad Sadik and another v. The State 1980 S C M R 203; Zahoor Ahmad v. The State 1982 P Cr. L J 1202; Abdul Ghani v. The State 1983 P Cr. L J 2163; Banaras v. The State 1978 S C M R 191; Sardar Khalid Umar v. The State N L R 1982 Cr. C 223 and Sadiq Ali Shah v . Sardar Khalid Omar 1982 S C M R 975 ref.

---Infirm--Meaning of--Physically weak especially through age--Criminal Procedure Code (V of 1898) , S.497.

Raja Muhammad Anwar, and R.A. Awan for Petitioner

Tanvir Ahmad Khan Addl. A.-G. with Noor Muhammad Paras for the State.

Kh. Muhammad Sharif for the Complainant.

Petitioner, who is involved in a case under section 302/307/332/ 353/34, P.P.C. and section 14 of the Offences against Property (Enforcement of Hudood) Ordinance VI of 1979, registered at P.S. Wahdat Colony, Lahore, vide F.I.R. No. 180, dated 11-6-1986, has filed this petition for the grant of post-arrest bail.

2. Occurrence which led to the registration of the case is alleged to have taken place on the night between 10th and 11th June, 1986, when a Raiding Party comprising Police Inspector Aneesur Rehman complainant, Jamaat Ali Bokhari S.I. Basharat Ali Head Constable, four constables and Muhammad Akram. A.S.I., who was in plain clothes, raided the petitioner's house to arrest the petitioner's son Zahid alias Gama who was an accused in a case under section 307/34, P.P.C. Muhammad Akram pressed the call-bell whereupon the petitioner came out of his house. The A.S.I. disclosed his identity and enquired about Zahid. On this, an altercation ensued. Hearing the noise, petitioners sons Zahid armed with a revolver, Tariq Mobin armed with a .12 bore double barrel gun, petitioner's son-in-law Tahir Mahmood armed with a rifle 7 min also came out of the house. Petitioner raised a Lalkara and exhorted his co-accused not to allow any of the police party to go alive. Petitioner and his co-accused then over-powered Muhammad Akram A.S.I. Zahid accused gave him injuries with the Butt of his revoiver and then fired a shot which hit him. Tariq Mahmood and Tahir Mahmood accused also fired their respective weapons injuring Muhammad Akram A.S.I. The injured died at the spot. He was then dragged into the petitioner's house. Tariq Mobin and Tahir Mahmood were also injured as a result of the police firing. Petitioner and his co-accused were arrested at the spot soon after the occurrence.

3. Petitioner applied for bail before the learned Sessions Judge oh the ground inter alia, that he was an old and infirm person as also a heart patient. A report was called for from the Jail Doctor on receipt of which, it appears, the learned counsel for the petitioner abandoned the medical ground and pressed the bail application on merits. Learned Additional Sessions Judge, Lahore, by order dated 1-7-1986 dismissed the bail petition holding that "the petitioner has facilitated the murder of Muhammad Akram, A.S.I. by actively participating in the commission of offence and, therefore, his case is not covered by section 497(2), Cr.P. C.". Petitioner has now approached this Court for bail.

4. As one of the grounds urged in the petition for bail of this Court was that the petitioner was suffering from angina pectoris and was an old man, this Court vide order dated 13-7-1986 asked the Medical Superintendent of Mayo Hospital, Lahore, "to constitute a Board of Doctors for examining the petitioner touching the disease from which he is suffering indicating degree of intensity thereof. The Board will also assess the age of the petitioner".

In pursuance of the direction of this Court, Medical Board comprising Dr. Muhammad Ijaz-ul-Hassan, Medical Superintendent, Mayo Hospital, Lahore, Dr. Sheharyar Ahmad Sheikh, Associate Professor of Cardiology, Mayo Hospital, and Dr. Muhammad Ashraf Chaudhry, Associate Professor of Radiology, Mayo Hospital, examined the petitioner on 26-7-1986 and has submitted the report to this Court with the following conclusion:-

"Age assessment.-- Mr. Muhammad Bashir son of Eid Bakhsh is 50-55 years (fly-five years).

' Heart.--Mr. Muhammad Bashir son of Eid Bakhsh is suffering from ischaemic heart disease, angina pectoris and artorial hypertension. He needs medical management of his angina and hypertension including medicines (cardiac drugs), regular check ups, avoiding physical and mental stress which precipitates his symptoms. "

Before proceeding further, it may be stated that this petition was heard yesterday at quite some length, and during the course of hearing, it was contended by the learned counsel appearing for the complainant that the nature of the ailment reported by the Medical Board was such that it could be effectively treated in the Jail Hospital. He, therefore, requested that a report in this behalf be called from the jail Doctor. This request was acceded to and Mr. Tanvir Ahmad Khan, learned Additional Advocate-General, who was present in Court, was asked to get the report from the Jail doctor whether the petitioner could be effectively treated in the jail for the heart disease indicated in the report of the Medical Board. Jail Doctor has submitted the report today, relevant portion of which is as follows:-

"Prisoner remain admitted in the Jail hospital for some period for his complain. Treatment was given to him and later on he was discharged from the hospital, anyhow present condition of undertrial prisoner is satisfactory and there is no need of shifting of the patient outside Jail hospital, at present. Whenever there is need of shifting the patient outside the jail, we will shift him for specialist treatment."

5. I have heard the learned counsel for the parties and have perused the relevant record. Before proceeding to take note of the contentions of the petitioner's counsel, it may be pertinently stated that the learned counsel for the complainant pointed out that the case has been fixed for trial on 18-8-1986, and urged that this bail petition is liable to be dismissed on this short ground. In support of this submission, he relied upon Muhammad Sadik and another v. The State 1980 S C M R 203. In that case, bail petition was rejected by the learned trial Judge and also by the High Court. Petitioner then filed special leave to appeal and sought to canvass the merits of the case. Their Lordships of the Supreme Court, therefore, observed that "we think that when the trial is to commence shortly and a date has already been fixed by the Court, it is not fair to go into the merits of the case in the form of a bail application at this juncture, and the case is, therefore, not fit for grant of special leave to appeal". Faced with this situation learned counsel for the petitioner submitted that he would not canvass the merits of the case and would press the prayer for bail only on medical grounds. His submission was that according to the report of the Medical Board, petitioner suffers from a serious heart trouble which can strike any moment. Petitioner is, therefore, entitled to the consideration of his prayer for bail on medical grounds notwithstanding that main case has been fixed for trial on 18-8-1986. Learned counsel for the petitioner has relied upon Zahoor Ahmad v. The State 1982 PCr.LJ 1202; Abdul Ghani v. The State 1983 P Cr. L J 2163 and an unreported judgment of Muhammad Zafarullah, J. of this Court in Criminal Miscellaneous No.1429/B of 1981, for the proposition that the mere fact that the case has been fixed for actual trial is no ground for refusing bail if the petitioner is otherwise entitled to it.

6. Learned counsel for the petitioner has vehemently contended that in view of the serious ailment of the petitioner and his advanced age, he is entitled to bail under the first proviso to section 497(1), Cr.P.C. , being a sick and infirm person. He has placed reliance on Banaras v. The State 1978 S C M R 191; Sardar Khalid Umar v. The State N L R 1982 Cr. C 223 and Sadiq Ali Shah v . Sardar Khalid Omar 1982 S C M R 975. In the case of Banaras, petitioner was involved in a case under section 302, P.P.C. on the allegation that he had stabbed Fazal Din deceased. His bail application was rejected by the trial Court as well as by the High Court. He then approached the Supreme Court. IL was found that he was suffering from idiopathic epilepsy. Their Lordships of the Supreme Court allowed bail to him on the ground that he was suffering from a serious disease and "he cannot have treatment of his choice in the jail hospital. Besides fits occur in the disease from which the appellant is suffering, and it will be difficult for the Jail authorities to look after him". In the case of Sardar Khalid Umar v. The State, petitioner was a heart patient. It was reported that he suffered from 'ischaemic heart disease and angina pectoris, hypertension'. He was allowed bail by this Court with the observation that "the disease is such that fatal attack can come at any time and the detention in jail would obviously be a stress which may hasten the onslaught. The law does not require that a man can be released on bail only if he is suffering from sickness or ailment in a manner that he is likely to die soon, or, cannot be treated in jail or under the supervision of the Jail authorities. The provision is that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of an offence punishable with death or imprisonment for life or ten years may be released on bail. In other words, an accused who is sick or infirm may be allowed bail. The word "infirm", according to the Concise Oxford Dictionary, 1964 means physically weak especially through age. The petitioner is suffering from 1970 onwards from a heat ailment for which he has been taking treatment and is above the age of 55 years. His case would at least appear to be one of an infirm person'. The order of bail granted to Sardar Khalid Umar was challenged further in the Supreme Court but without any success. Refer 1982 S C M R 975.

7. Learned counsel for the. State and they complainant, on the other hand, contended with reference to the latest report of the Jail doctor that the present condition of the petitioner is satisfactory and there is no need to shift him outside the Jail hospital. Their argument is that in view of the present state of the petitioner's health, he can be very well-treated in jail. I find no force in this argument. In view of the serious nature of the petitioner's ailment as disclosed in the report of the Medical Board, petitioner is entitled to have the treatment of his choice which he cannot have obviously in the Jail hospital as observed by their Lordships of the Supreme Court in the case of Banaras. It may be noted that similar argument raised on behalf of the State was repelled by their Lordships of the Supreme Court in that case. It may also be pointed out that as observed by this Court in the case of Sardar Khalid Umar, the disease from which the petitioner suffers is such that fatal attack can come at any time and the stress of detention in jail may very well hasten the onslaught.

8. After considering the aforereferred authorities, I am of the view that the case of the petitioner on account of his ailment from which he admittedly suffers, clearly falls under the first proviso to section 497(1), Cr.P.C. He is, therefore, entitled to be released on bail. This petition is accordingly allowed and it is ordered that the petitioner shall be released on bail in the sum of Rs.50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of Deputy Registrar of this Court.

S. A. Bail allowed.

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