Haji NAZIR AHMAD vs THE STATE
This matter comes before the Lahore High Court through a petition filed by Haji Nazir Ahmad seeking post-arrest bail in a criminal case registered under sections 302, 109, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Hyderabad, District Bhakkar, concerning a murderous assault resulting in a fatality. The core legal question is whether an accused suffering from a serious illness can be granted post-arrest bail on medical grounds when adequate treatment is unavailable in jail custody. The court held that since the petitioner is suffering from a serious kidney ailment requiring specialized surgery and facilities not available within the jail premises or local hospital, his continued detention is hazardous to his life. Consequently, the court allowed the petition and admitted the petitioner to post-arrest bail. The key principle laid down is that bail on medical grounds in non-bailable cases is warranted when an accused's ailment cannot be properly treated in custody and requires specialized medical attention unavailable in jail.
- Can post-arrest bail be granted on medical grounds in a non-bailable offence if the accused cannot be properly treated in jail?
- What is the correct criteria for the grant of bail to an accused person on medical grounds under the Code of Criminal Procedure 1898?
- Whether the absence of specialized medical facilities within jail premises makes continued detention hazardous to the life of an accused?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' FAZAL-E-MIRAN CHAUHAN, J. ---Petitioner-Haji Nazir Ahmad, seeks post-arrest bail, in case vide F.I.R. No, 15, dated 4-4-2005, offences under sections, 302, 109, 148 and 149, P.P.C. Registered at Police Station, Hyderabad, District Bhakkar for the allegations that the petitioner along with his co- accused, while armed with deadly weapons, launched a murderous assault upon Falak Sher, who later on succumbed to the injuries, hence, this case.
2. It is contended by learned counsel for the petitioner that; the petitioner is a kidney patient and has fallen seriously ill in jail, where he was medically examined by the jail doctors as well as by doctors of District Headquarter Hospital, Mianwali, wherein it transpired that the petitioner's treatment is not possible within the jail premises or at D.H.Q., Hospital Mianwali, therefore, he has earned his right to be released on bail on the aforesaid ground. Further contends that to support the plea, learned counsel relied upon the medical report, which has been sent in compliance with the order of this Court, dated 12-5-2006. The report is under:-- ' The Health Status of the petitioner is:-- ' A multiple stone in left kidney. Left kidney smaller in size 8 cm x 3.3 cm according to ultrasound report. He should undergo Surgery at PIMS as facilities for Haemo dialysis are not available at District Headquarter Hospital, Mianwali. If patient develops renal failure post operatively, it will require haemodylises on urgent basis and the said facilities are not available at DHQ, Hospital Mianwali, so advised that patient is shifted to Pakistan Institute of Medical Sciences Islamabad as urgent as possible.
' Learned counsel has placed reliance on Mian Manzoor Ahmad Watto v. The State (2000 SCM R 107), therefore, the petitioner is entitled to the concession of bail on the basis of medical ground.
3. Conversely, learned State counsel has half-heartedly opposed the bail petition.
4. Having heard the learned counsel for the parties and perused the record, it manifests that the continued detention of the petitioner in the jail is hazardous to his life and that the treatment which he needs off and on for his ailment, cannot be provided within the jail premises. The principle for grant of bail on medical ground in a criminal case was laid down by a Bench of the Court in the case of Muhammad Yousafullah Khan v. State (PLD 1995 SC 58), as follows:-- "From the above discussed position it is clear that the bail on medical ground can be granted under section 497, Cr.P.C., if the Court reaches the conclusion on the basis of medical report that the ailment with which the accused is suffering' is such that it cannot be properly treated while in custody in Jail. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be a ground either to refuse or grant the bail on medical ground. The correct criteria for grant of bail on an accused in a non-bailable case, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialized treatment is needed and his continued detention in Jail is likely to affect his capacity or is hazardous to his Life."
5. In this view of the matter, while relying on 2000 SCM R 107 (supra), his bail petition is allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 (rupees two lac only) with one surety in the like amount, to the satisfaction of the learned trial Court.