MUHAMMAD TUFAIL Versus THE STATE
ORDER
Muhammad Tufail, petitioner, through this petition under section 497, Cr.P.C. seeks the concession of post-arrest bail being accused in case F.I.R. No.228, dated 31-7-1993 under section 302/324/34, P.P.C. registered with Police Station, Chunian, District Kasur.
2. According to F.I.R., on 31-7-1993 when the complainant accompanied by Muhammad Ramzan (deceased) Muhammad Abbas and Muhammad Ashiq had come to Civil Hospital, Chunian in connection with appendix treatment of Riaz and on his admission took him to the Male Ward, they came to know that Muhammad Tufail accused/petitioner stood admitted for treatment to the adjoining ward. The complainant further 'alleged that after sometime when he accompanied by Muhammad Ramzan (deceased) and Muhammad Abbas were returning to the hospital after bringing medicines for Riaz and were in the gallery of the hospital, Muhammad Tufail, petitioner accompanied by Pervaiz and Arshad, all armed with .12 bore guns, were found standing in the door of the ward. According to the complainant, seeing Muhammad Ramzan in the gallery, Tufail fired at him but they all escaped, however, as a result of firing Muhammad Ramzan (deceased) alongwith three other persons were injured; Muhammad Ramzan in order to save his life ran into the ward where Riaz was admitted and closed the door but Pervaiz and Muhammad Arshad after breaking open the door killed Muhammad Ramzan who was taking refuge under a bed, by firing him after one and the other. As per prosecution story, that as a result of firing by Muhammad Tufail, one Hassan of Pattoki who was present in the gallery was also killed and Mumtaz and Siddique were injured.
3. The petitioner was earlier granted bail by the learned Judge, Special Court for Speedy Trials No.II, Lahore (Mr. Justice Abdul Majid Tiwana, as his Lordship then was) vide order, dated 7-7-1994 observing that infirmity indicated by Doctor Professor Aftab Ahmed was sufficiently serious. The merits or demerits of the case were not at all discussed. Later, on an application moved under section 497(5), Cr.P.C., Mr. K.M. Sohail, learned Additional Sessions Judge, Chunian recalled the bail granting order on 19-1-1995; hence this petition.
4. In support of the petition, learned counsel argued that petitioner was allowed bail by the learned Judge, Special Court merely on the ground of infirmity on the basis of certificate issued by Orthopaedic Surgeon and as such there was no good ground available with the learned Additional Sessions Judge to recall the bail granting order. The application was not seriously opposed by learned counsel for the State as well as learned counsel for the complainant rather in a way they conceded that the course adopted and the reasoning given by the learned Additional Sessions Judge do not have the backing of law.
5. I have heard learned counsel for the parties at length and have gone through the record with care. There is no doubt that the petitioner was granted I bail by the learned Judge, Special Court for Speedy Trials No.II, Lahore purely on medical grounds on the basis of certificate issued by Professor Dr. Aftab Ahmed, Head of the Orthopaedic Department, King Edward Medical College, Mayo Hospital, Lahore. The observation of the learned Additional Sessions Judge that: --
"It seems that the respondent-accused also ventured to produce a wrong certificate before the learned trial Judge of the Speedy Court." is based on presumption and there Was no material available before him to hold the certificate to be a bogus one, rather in a way amounts to nullifying the order passed by Mr. Justice Abdul Majid Tiwana, as his Lordship then was. The learned Additional Sessions Judge acted illegally while asking the petitioner to walk physically in the Court room. The act of the trial Court in becoming a doctor/expert himself over the certificate issued by a Professor was beyond its jurisdiction. It would have been much safer if he would have referred the matter to the Board for opinion. The way in which the learned A Additional Sessions Judge has tried to justify his impugned order smacks of mala fides. I am presently showing restraint to take action against the judicial officer. He being an Additional Sessions. Judge is bound to know the law and the declaration made by the Superior Courts.
6. In view what has been discussed, the order, dated 19-1-1995 passed by the learned Additional Sessions Judge, Chunian is recalled. Consequently, the e petitioner is granted bail subject to his furnishing bail bond in the sum of Rs. one lac with two sureties each in the like amount to the satisfaction of learned trial Court.
7. A copy of this order shall be forwarded to the learned Inspection Judge of the District also to the learned Sessions Judge, Kasur.
N.H.Q./M-1986/L Bail allowed