MUHAMMAD ARSHAD vs THE STATE And Another

ORDER

MUNAWAR AHMAD MIRZA, J.---This petition is directed against order, dated 13th March, 1997 passed by Lahore High Court reversing an order of trial Court, dated 15th August, 1996 whereby bail granted to petitioner was cancelled.

2. Facts briefly mentioned are that respondent No.2'Umar Hayat and his brother deceased Muhammad Ramzan at about 5-30 p.m. On 28th May, 1995 were bringing back cattles towards house when petitioner alongwith three co---accused namely (i) Muhammad Siddique alias Bhola,

(ii) Bashir alias Khan and (i.e) Safdar Ali carrying .222 bore rifles attacked and caused fire-arm injuries to Muhammad Ramzan who succumbed to the same and expired while on his way to Hospital. Respondent No.2 on the same day at 10-45 p.m. Lodged F.I.R. No.202 of 1995 with Dajkot Police Station under section 302/34, P.P.C. After investigation, the accused were sent up for trial before Special Court, Suppression of Terrorist Activities, Faisalabad.

3. During the pendency of proceedings, petitioner submitted an application before Special Court, Suppression of Terrorist Activities praying for his release on bail which was initially rejected on 24th March, 1996. Later, towards 6th March, 1996, petitioner submitted another application before said Court mainly on the ground of sickness. After hearing arguments, the trial Court granted bail to the petitioner by means of order, dated 15th August, 1996. Respondent No.2 feeling dissatisfied from the above decision had filed Criminal Miscellaneous No.4357-B of 1996 before Lahore High Court which was eventually accepted on 13th March, 1997 directing cancellation of petitioner's bail. Last- mentioned order of the High Court has been assailed through present petition. '

4. Ch. Ali Muhammad, Advocate Supreme Court, emphatically contended that petitioner had serious ailments which were not easily curable and could endanger his life for want of medical facilities in jail. Referring to medical report, it was urged that gravity of petitioner's sickness constitutes legitimate basis for his entitlement to bail under proviso to section 497(1), Cr.P.C. To supplement his submissions, reference was made to (i) Haji Mir Aftab v. The State 1979 SCM R 320,

(ii) Abdul Aziz v. (1) Bashir Ahmad, and (2) The State PLD 1966 SC 658, (i.e) Muhammad Bashir v. The State 1991 P.Cr.LJ 2422, (iv) Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and (v) Mian Dad v.

The State and another 1992 SCM R 1286. Whereas Mr. Hasnat Ahmad, Assistant Advocate-General vehemently opposing the petition argued that ailments mentioned in the medical report produced by the petitioner were of common nature for which adequate treatment can be conveniently provided in Jail Hospital. According to him, keeping in view gravity of offence and nature of accusation against the petitioner, benefit of bail cannot be extended

5. On proper appraisal of legal and factual aspects, pivotal question which requires consideration would be whether the accused is entitled to bail merely because he suffers from certain ailments; or compelling circumstances must exist disclosing seriousness of disease and possibility of its endangering his life while lying in detention.

6. Medical certificate produced by petitioner indicates that petitioner was suffering from moderate hypertension, high blood pressure complaining normal chest discomfort without any signs of ischaemic heart disease, and sinus tachycardic. The treatment which has been suggested by the Board comprises of three types of tablets and a cream for local application. Evidently, law vests discretion in the Court for ascertaining justification of granting bail to a sick accused; which requires to be exercised judiciously. Facts of each case have to be assessed on its own merits. The trial Court exercising discretion has to be satisfied about gravity of sickness reflected from medical certificate and possible consequences coupled with nature of treatment necessary for curing the disease. We have no doubt in our mind that every ailment does not attract invocation of discretion contained in proviso to section 4970), Cr.P.C. There must exist strong reasons to believe that despite advanced medical technology and 14, availability of medicines, treatment and care of petitioner was not possible regard being had to nature of illness. Thus, adverting to facts of present case, it may be seen, that petitioner is suffering from common disease which can be conveniently treated in jail hospital and does not appear to be life threatening. Trial Court misconstruing legal position, had seriously erred in allowing bail to petitioner whereas the Lahore High Court by assigning sound reasons corrected B the wrong and rightly directed cancellation of bail granted in favour of petitioner. The impugned order is in consonance with basic requirements and spirit of law, therefore, does not warrant interference. For the above reasons, petition has no merit.

Accordingly, interim order, dated 27th March, 1997 passed by this Court is recalled, and leave refused.