MISAL MUHAMMAD vs The STATE

ORDER

ZAFFAR HUSSAIN MIRZA, J.--Petitioner Misal Muhammad alongwith his two sons is charged under section 302/34, P.P.C, with the murder of one Farhad. His plea for release on bail having been rejected by Magistrate First Class, Mardan, he approached the Sessions Judge Mardan, who granted his application on the ground that he is an infirm man suffering from Ischaemic Heart Disease with high blood pressure, which according to the learned Sessions Judge made his confinement in jail detrimental for his health. On an application by the complainant the learned Chief Justice of the Peshawar High Court, by his order, dated 28th September, 1985, cancelled his bail, on the ground that the disease of which the petitioner was certified to be suffering, was not one which cannot be treated inside the jail while he is in custody. The learned Sessions Judge, while granting bail to the petitioner had relied upon a certificate issued by the Medical Superintendent, District Headquarters Hospital, Mardan, dated 20th January, 1985, to the effect that the petitioner, who was under trial prisoner had been referred to him by the Medical Officer Jail and had been admitted as a case of Hypertension with Ischaemic Heart Disease.

2. Being aggrieved by the aforesaid order of the learned Chief Justice, dated 28th September, 1985, cancelling his bail, the petitioner came up before this Court for leave to appeal. This Court by order dated 18th December, 1985, directed that the petitioner be examined by the Heart Specialist, Incharge of the Cardiology Ward, Civil Hospital, Mardan, for detailed opinion. In consequence to this reference the medical certificate from Assistant Professor of Cardiology has been received stating that the petitioner is suffering from severe Hypertension Ischaemic Heart disease and chronic obstructive pulmonary disease. In the opinion of the doctor it is essential that the patient must continue his medication and have regular follow up for control of high blood pressure and heart disease.

3. We have heard Mr. Zahoorul Haq, learned counsel appearing for the petitioner and Mr. Bashirullah Khan, A.A.-G. (N.-W.F.P) on behalf of the State. After taking into consideration the material placed on record we are of the opinion that the petitioner was suffering from serious ailment which rendered his confinement in jail as hazardous to his life and therefore, the discretion exercised by the learned Sessions Judge was just and proper, as has been verified by the further medical examination of the prisoner.

4. In the result, we convert this petition into an appeal and allow it. Bail is granted to the petitioner in the sum of Rs.50,000 on, the same terms and conditions as imposed in the order of the learned Sessions Judge, Mardan, dated 21st January, 1985.