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Criminal Miscellaneous No.2333/B of 1986, decided on 13th December, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail, grant of‑‑Medical ground‑‑Accused examined by Phychiatrist of Mental Hospital on four occasions and found suffering from epilepsy‑‑Response to treatment in jail, being poor, possibly due to stress and strain‑‑Medical Board constituted under orders of Court also finding accused suffering from epilepsy‑‑Since disease was not being controlled by drugs due to stress, accused, therefore was considered entitled to bail and released accordingly.

Banaras v. The State 1978 S C M R 191 ref.

Muhammad Latif Khan Khosa for Petitioner.

Muhammad Shah Nawaz Khan for the State.

R.A. Awan for the Complainant.

Shafqat Bari petitioner alongwith others is charged with the murder of Ghulam Haider deceased.

2. The prosecution case is that the petitioner while posted as Inspector C.I.A. Staff, Lahore arrested Ghulam Haider deceased on 28‑9‑1985 in a case under Article 3/4 of the Prohibition Order, section 307/353, P.P.C. and section 13 of the Arms Ordinance, 1965 on the allegations that two Killos of Charas had been recovered from his possession and that at the time of recovery he tried to assault the police officials with a dagger. On the same day at the instance of Ghulam Haider deceased more Charas and opium were recovered from his house for which separate cases were registered against him on the report of Shafqat Bari petitioner. Ghulam Haider deceased died in the police custody on the night of 28‑9‑1985 whereupon a case under section 302/34, P.P.C. was registered against Shafqat Bari, petitioner, Abdul Rashid A.S.I. and some constables on the report of Mst. Irshad Begum widow of Ghulam Haider deceased. According to her the police officials had tortured the deceased resulting in his death. Finally the petitioner and others were challaned under section 304/34, P.P.C. Shafqat Bari had earlier applied for bail on merits but their application was dismissed by this Court on 9‑2‑1986. He has again applied for bail on medical ground.

3. It was stated that he was suffering from epilepsy. Medical Superintendent, Government Mental Hospital, Lahore was summoned by this Court. He appeared alongwith Mr. Habib Ullah Choudhry, psychiatrist. The latter stated that he had examined the petitioner on four different occasions and found him suffering from epilepsy anti that response to the treatment in Jail was poor and he used to get fits in spite of sufficient doses of medicines which might be the result of strain and stress.

Mr. R.A. Awan, counsel for the complainant stated that he was feigning insanity and suggested that a Medical Board should be constituted for his examination. The request was granted and Secretary Health, Government of Punjab was directed to constitute a Medical Board for the examination of the petitioner. A Medical Board comprising (1) Dr. Mazhair Ali Hashmi, Medical Superintendent, Services Hospital Lahore (Chairman), (2) Dr. Mahmood Aslam, Physician Services Hospital, Lahore (Member) (3) and Dr. Habibullah Chaudhry, Psychiatrist, Government Mental Hospital, Lahore (Member) was constituted which examined the petitioner and opined that he was suffering from epilepsy which was not being controlled by the drugs due to stress.

4. Learned counsel for the petitioner contends that the report of the Medical Board confirms the sickness of the petitioner and that after his arrest he was taken to Mental Hospital on several occasions where he remained admitted. The allegation of feigning epilepsy or mental sickness stands belied by the report of the Medical Board. He has cited Banaras v. The State 1978 S C M R 191 where the accused suffering from idiopathic epilepsy was admitted to bail by the Supreme Court of Pakistan.

Learned counsel for the complainant has vehemently contested the application. According to him, the report of the Board is vague and does not give the history or type of epilepsy. According to him, the disease of the petitioner has not developed after his arrest but he has an old history of this ailment and thus, he is not entitled to claim bail on this ground.

5. As the petitioner is reported to be suffering from epilepsy a kind of mental disease which according to the Medical Board is not being controlled by the drugs due to stress. I, therefore, consider him entitled to bail and order accordingly. He shall be released on bail on furnishing security in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of A.C. (City, Lahore) or D.R. (J)) of this Court.

S. A./S‑6/L Bail granted.

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