RAQIBAZ KHAN vs THE STATE and another
This is a criminal petition filed by the accused Raqibaz Khan seeking post-arrest bail on medical grounds in a case arising from F.I.R. No. 2 dated 25-1-2009 registered under sections 302, 324, 148, and 149 of the Pakistan Penal Code at Police Station Kakki, District Bannu, involving the murder of four persons and injuries to another. The core legal question was whether an accused charged with heinous offences and whose earlier bail application was dismissed on merits is entitled to bail on medical grounds due to incapacitation and lack of specialized treatment facilities within the jail. The Peshawar High Court held that the petitioner made out a case for bail on medical grounds alone, as the medical certificate and record established that he suffered a compound fracture of the right femur, was bed-ridden, required one year of bed rest and physiotherapy, and that such specialized facilities were unavailable inside the prison premises. The key principle laid down is that where an accused demonstrates through reliable medical evidence that he is incapacitated and that necessary medical or physiotherapy treatment cannot be provided within jail, he is entitled to the concession of bail on medical grounds.
- Is an accused charged with multiple murders entitled to post-arrest bail on medical grounds?
- Does the absence of specialized physiotherapy treatment facilities inside the jail justify granting bail on medical grounds?
- Whether an accused suffering from a bed-ridden injury and requiring long-term treatment can be released on bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
' ATTAULLAH KHAN, J.---The accused/petitioner having failed to get the concession of bail has applied to this Court for the same relief. He is charged under sections 302/324/148/149, P.P.C. Vide F.I.R. No,2 dated 25-1-2009 of Police Station Kakki, District Bannu.
2. The prosecution story as narrated by the complainant Abdul Ghaffar Khan in his initial report lodged on 25-1-2009 at 1200 hours is to the effect that on the eventual day his son Hikmat Yar, Shahidullah son of Sard Ali Khan, Ashrafulah son of Muhammad Rauf and Muhammad Rauf son of Amir Jan, his co-villagers, had gone to Sher Mast Kakki for the purchase of house-hold articles from the shop of Ikramullah, while he (the complainant) and Arab Khan son of Pasham Khan were standing in front of the shop on the `Kacha-Road' at some distance. No sooner his son Hikmatyar came out of the shop at about 1100 hours, Arif Khan, Zahoor Khan Raqibaz, Sar Anjam, Abdul Qayyum and Wahid Khan, residents of Sher Mast Kakki, armed with Kalashnikovs, emerged on the scene of occurrence and simultaneously fired first at his son Hikmat Yar and, thereafter, at Shahidullah, Ashrafullah and Muhammad Rauf with which all the four were injured and died on the spot while a passerby named Akhtar Khan sustained injuries. Motive for the offence was stated to be a road-dispute between the parties.
3. It is to be noted here that this Court vide order dated 2-11-2009 had cancelled the to the accused/petitioner on the ground that his case was not arguable for the purposes of bail on merits keeping in view the commission of four murders in the occurrence. It was held that the cross-case bearing No,3 is not the cross-version in stricto senso. However, at the concluding para, this Court has observed that the accused/petitioner may move a fresh bail petition on medical ground.
4, The instant application is medical ground.
5. The record reveals that the accused/petitioner is complainant in case F. I. R. No,3 wherein he has received injuries due to which he is bed-ridden and his injuries cannot be treated in Jail premises and requires specialized treatment outside jail. He has filed copy of medical IA report which consists of a certificate issued by the Senior Registrar, Male Orthopedic Ward, Government Lady Reading Hospital Peshawar.
6. I have perused this certificate which discloses that the injury sustained by the petitioner is medico legal case compound fracture of right femur bone and remained under treatment till 3-4- 2009. He has undergone surgery. According to the certificate, the accused/petitioner is unable to walk and he was allowed complete bed rest for one year and he will do physiotherapy on the bed.
It has also been opined that the accused/petitioner is a been ridden case.
7. I have scanned the entire record and have come across nothing to the contrary. There is no certificate from Jail doctor produced by the complainant party to show that the facility of physiotherapy is available in jail, meaning therein that the said facility is not available in Jail. As per the medical certificate, the petitioner is a bed-ridden case and has been advised one year bed rest during which he would receive physiotherapy treatment.
8. In this case, the remaining accused are in Jail and he is the only person who has received injuries which have made him incapable for one year as per the medical report and in my opinion, he deserves to receive the treatment outside the Jail as the requisite facility is not availible inside the Jail.
9, Consequently, I accept this application and admit the petitioner to bail on medical ground alone provided he furnishes bail bond in the sum of rupees one lac with two sureties each in the like amount to the satisfaction of Judicial Magistrate concerned who shall ensure that the sureties are reliable, local and men of means.
10, Above are the reasons for my short order of even date.