Muhammad Waris vs The State and another

Through this petition under section 497 Cr.P.C, the petitioner namely , Muhammad Waris seeks post-arrest bail in case FIR No.243 of 2018 dated 16.05.2018 registered at police station City Kehror Pacca, District Lodhran in respect of of fences under sections 376 and 292 PPC.

2. The allegation as against the petitioner namely Muhammad Waris, culled from the evidentiary material produced before the Court, is that he raped Mst. Naila Abdul Ghaf far, the complainant and also recorded footage of her in nude.

3. I have heard the arguments of learned counsel for the parties and learned Deputy Prosecutor General and perused the record with their able assistance.

4. At the very out-set, learned counsel appearing on behalf of respondent No.2/complainant has pointed out that the petitioner had earlier approached this Court with an application under section 497 Cr.P.C bearing Crl. Misc.

No.2514-B of 2019 titled Muhammad Waris versus The State and another , which application was dismissed as withdrawn by the order of this Court dated 27.05.2019, after the learned counsel for the petitioner had argued the matter at full length . There is no cavil to the proposition that withdrawal of a bail petition coordinates with collapse of all the grounds available then, making it obligatory , for the petitioner to search for a fresh ground, not available to him earlier and having arisen subsequent to the earlier order of withdrawal, so as to move a second or subsequent bail application(s) as held in the cases of Nazir Ahmed and another v. The State and others (PLD 2014 SC 241) and Muhammad Aslam v .The State and others (PLD 2015 SC 41). Learned counsel for the petitioner has submitted that the petitioner is seeking post arrest bail on the ground of his illness and malady . This Court, vide order dated 05.11.2019, had directed the constitution of a Medical Board to determine the health status of the petitioner and the extent of his illness. The said Medical Board examined the petitioner and has since submitted its final opinion dated 30.11.2019. The Medical Board constituted for examination of the petitioner namely Muhammad Waris has opined as under:- Keeping in view the above clinical investigations and patient clinical statu s, patient does not need in- hospital admission. His ailments can be treated on regular Out Patient Department (OPD) visits.

Another report regarding the health statu s of the petitioner and the extent of his illness was sought by this Court and the Medical Board again examined the petitioner and submitted its further opinion dated 18.12.2019. As per the said report, the Medical Board has opined that the petitioner be provided the prescribed medicines. On bare perusal of the above-referred medical opinion, it transpires that condition of petitioner is stable. It has not been opined that his detention in jail would be hazardous to his life, which is a requis ite condition for grant of bail on medical ground. Grant of bail under first proviso to section 497(1) Cr.P.C. is discretionary in nature. Every ailment does not attract invocation of discretion contained in the proviso. There must exist strong reasons to believe that despite the availability of modern medic al technology , life saving drugs, advanc e medical treatment and care, accused still requires treatment which is not generally available. Irrespective of above, medical opinion should be so explicit in nature that further detention of accused in jail would be hazardous to his life. 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. No such conclusion can be drawn in this case. Considering the case of petitioner on the above touchstone, I am of the considered opinion that he has not been able to bring his case within the ambit of above conditions. Even otherwise according to nature of ailment shown in the opinion of the Medical Board, the petitioner is suffering from common and old diseases, which do not appear to be life threatening. For the last more than eight months, his condition is stable. In such like circumstance, the August Supreme Court of Pakistan, in the case of Muhammad Arshad v. The State and another (1997 SCMR 1275 ) has maintained the order of cancellation of bail passed by this Court, which was granted by the trial Court on medical ground. Reliance is also placed on the cases of Shahbazuddin Chadhry v. The State (PLD 2004 Supreme Court 785), The State V. Haji Kabeer Khan (PLD 2005 Supreme Court 364) and Ghulam Raza v . Khuda Buksh and another ( 2005 SCMR 1904 ).

5. In view of the above discussion, this petition being meritless is dismissed. It may, however , be clarified that the petitioner may approach the learned trial court again for his bail if and when any fresh ground for such relief accrues to him in future.