NAWAZISH ULLAH Versus THE STATE

ORDER

Nawazish Ullah petitioner alongwith 7 others stands charged with the murders of Hamayun Khan and Khalid Sarfraz deceased and for murderously assaulting Safdar P.W. with guns on 22‑10‑1987. He is alleged to have raised a Lalkara and fired tit Safdar P.W. No injury to any of the deceased is attributed to him.

2. It is contended that during investigation the prosecution version was found to be false in respect of six of the co‑accused and the complainant party was found to be the aggressor and the petitioner and his co‑accused were found to have acted in exercise of the right of self‑defence.

3. The bail petition on behalf of Nawazish Ullah petitioner is pressed only on the medical ground. It is stated that he is suffering from Angina, Diabetes Mellitus tuberculosis etc. Secretary Health, Government of the Punjab was directed to constitute a Medical Board for the examination of the petitioner. Consequently, Medical Board comprising Professor Shahbaz Muneer Raja, Chairman, Dr. Mian Muhammad Naeem, Physician, D.H.Q. Hospital, Gujrahwala and Dr. Ansar Mehmood, Cardiologist, D.H.Q. Hospital, Gujranwala was constituted by him. After thorough check‑up the Board arrived at the following conclusion:

"On the basis of history, clinical examination and investigations, the Board is of unanimous opinion that Mr. Nawazish Ullah s/o Raj Muhammad who is about 70 to 75 years of age is suffering from Diabetes Mellitus, with Ischemic Heart disease. He is neither anaemic nor tuberculosis."

4. Learned counsel for the complainant and the State have vehemently opposed the application. According to them the petitioner is not suffering from any serious ailment entitling him to the grant of bail. Both sides have cited precedents in support of their respective contentions.

5. I have heard the learned counsel for the parties and perused law on the subject. For bail under second proviso to section 497, Cr.P.C. it is not necessary that the ailment should be of such a serious nature as may endanger the life of a person but anything satisfying the mind of the Court that the disease, he is suffering from requires constant care, test and treatment, special diet etc. not ordinarily available in jail. Haji Mir Aftab v. The State 1979 SCMR 320 may be cited in this behalf where it was held that once a person is found to be sick and infirm it is not open to the Court to quantify his sickness and infirmity and his case would be covered by the proviso to section 497 , Cr.P. C.

According to the Medical Board the petitioner is an elderly man of the age of about 70 to 75 years suffering from Diabetes Mellitus with Ischemic Heart disease.

6. Keeping in view his age and state of health, I consider him I entitled to bail and order accordingly He shall be released on bail subject to his furnishing bail bonds it the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of A.C., Hafizabad.

S.A./N‑158/L Bail granted.