Inshaullah Vs The State

IN THE PESHAWAR HIGH COURT,

tsANNU BENCH

(Judicial Deparlmenll

Cr.Misc:BA No.l93-B of 2023

+I

Inshaullah Vs Thc Statc ctc

ORDER

Datc olhcaring 05.05.2023

Iror petitioncr Mr. Ilujjat LJllah Khan Marwat Advocatc

l;or rcspondcnt: Mr. Salah-ud-Din Khan Marwat Advocatc

Iror Statc llafir, Muhammad llanil, Addl. A.G.

FAZAL SUB J.--- 'l'hrough this bail

application, pctitioncr Inshaullah is sccking his post arrcst bail on lrcsh ground in conncction with l:lR No.653 datcd 11 .10.2020 undcr scction 302 I 34 PPC of Policc Station Lakki, District l,akki Marwat.

2.Contcnts ol lilR rcvcal that <tn 17.10.2020, complainant Muharnmad Aurangzcb son of Ghulam Yousaf whilc prcscnt with thc dcad body o[ his deccascd brothcr Naimat lJllah, rcportcd that on thc day ol occurrcncc, at 16:I0 hours, hc alongwith his brother Naimat Llllah and his ncphcw Zahid tJllah

wcrc prcscnt in thcir ficlds for cultivation of crops, whcn in thc mcanwhilc, four pcrsons namcly Inshaullah, Khaliq Marjan, Karim and Sabar Jan on two diffcrcnt motorcyclcs arrivcd duly armcd with Kalashnikovs, whcrcaltcr thcy alightcd lrom thcir rcspcctivc motorcyclcs and all of thcrn startcd firing on his brothcr Naimat Ullah. As a rcsult, hc was hit and fell on thc ground and thcrcaftcr, all thc accuscd boardcd on thcir rcspcctivc motorcyclcs and lcft.

Ilcing empty handed, thcy could not rcsist the attack. Motivc for thc occurrcncc was statcd to bc prcvious blood lcud cnmity.

3.1'hc pctitioncr Inshaullah initially rcmaincd fugitivc from law, howcvcr, latcr on, hc applicd for pre arrcst bail and on rcfusal / rcjcclion ol his petition, hc was arrcstcd on 06.04.2021. IIc applicd for post arrest bail and was grantcd bail by thc lcamed Additional Scssions Judgc-[, Lakki Marwat on 24.05.2021. A bail canccllation application was filcd against him bcforc this Court, but hc failcd to appcar. On 09.12.2022, thc pctitioncr lodgcd Naqal Mad No.27 in injurcd condition at City Ilospital, Lakki Marwat in rcspect of thc firing upon him by accuscd Nasccr Khan son ol Muhamrnad Nawaz and

Ilidayat lJllah son of Mashal Khan, rcsulting injurics upon his pcrson and bcing rcquircd in thc instant casc IIR No.653, hc was formally arrcstcd in the casc. IIc applicd for bail in Court of lcarncd Additional Scssions Judgc-1, Lakki Marwat on 23.01.2023 on mcdical ground, howcvcr, his bail pctition was dismisscd on28.03.2023, hcncc, hc has now approachcd this Court for grant of bail on thc basis of rcport of mcdical board.

4.Argumcnts of lcamcd counscl for pctitioncr, lcamed counscl for complainant assistcd by lcarncd A.A.G. for thc Statc hcard and rccord pcruscd.

5.lirom thc pcrusal of rccord, it is cvidcnt that pctitioncr was carlicr grantcd bail by the lcarncd Additional Scssions Judgc-1, Lakki Marwat on 24.05.2021, which was subsequcntly canccllcd by this Court, whercaftcr hc abscondcd, but has latcr on bccn arrcstcd whcn hc sustaincd injurics in an incidcnt rcportcd by him through Naqal Mad No.27 datcd 09.12.2022. In thc said incidcnt, thc pclitioncr has sustaincd injurics on right arm and clbow.

I)uring thc pcndcncy of his application lor bail, thc leamed Additional Sessions Judgc-I, Lakki Marwat issucd dircctions lor constitulior.r ol Standing

Mcdical Iloard to cxaminc thc pctitioncr in rcspcct of his disability, whcrcaflcr Standing Mcdical Iloard cxamincd thc pctitioncr and submittcd its rcport vidc fettcr No.ti6l-62lMll datcd 15.03.2023 with thc [ollowing findings

"'l'hc lollowing Standing Mcdical Iloard cxamincd accuscd Inshaullah S/O Gul Marjan IVO Wanda Kalan, Lakki Marwat. C/O pain right arm and clbow and inability to movc fingcrs and wrists. Ilistory ol lt1.l 2 % month ago. O/li lixtcrnal fixator applicd to right arm across clbow. 'l'hc paticnt is unablc to movc right hand fingcrs in cithcr dircclion cxccpt to a mild dcgrcc.

Scnsations arc also diminishcd both on volar and dorsal surfacc of thc hand. Wasting of thc hand is prcscnt. Iloth cxtcnsion and a flcxion ol thc wrist is diminishcd. lior furthcr trcatmcnt highcr lcvcl consultation is rcqucstcd."

6.lrrom thc said rcport, it is clcar that thc Mcdical Iloard, allcr cxamining thc pctitioncr / injurcd, has opincd that as a rcsult of fircarm injury, scnsations in thc right hand fingcrs havc diminishcd both on volar and dorsal surfacc of thc hand and it was concludcd that thc pctitioncr rcquircs furthcr treatmcnt on highcr lcvcl consultation. 'l'hc rccord

revcals that thc pctitioncr is a young man of 31 I 32 ycars and thc injury is upon his right hand clbow, which is always a working hand ol'a pcrson and if hc is not providcd thc spccializcd trcatmcnt thcn thcrc is likclihood of pcrmancnt damagc to his right

AITN

7.'l'hc first proviso to scction 497 Cr.P.C dcals with thc grant of bail to a pcrson who is undcr thc agc of l6 ycars or any woman or any sick or infirm pcrson accuscd ol'non-bailablc ol'lcncc. lirom thc Standing Mcdical Iloard rcport, it is clcar that though, thc pctitioncr is bcing providcd trcatmcnt in thc hospital, but rcqucst has bccn madc for lurthcr trcatmcnl at highcr lcvcl consultation, through which it can bc inlcrrcd that such a high lcvcl trcatmcnt is not availablc ln thc jail hospital. In such circumstanccs, whcn thc mcdical board rcport has shown apprchcnsion ol loss o[ ability of thc right hand thcn it can salcly bc hcld that thc pctitioncr may not bc dcclincd bail on thc solc ground that hc is involvcd in a casc, which lalls within thc prohibitory clausc ol scction 497 Cr.P.C. In this respcct, rcliancc can salcly bc placcd on thc judgmcnt ol'this Court rcportcd in 20ltt PCr.l,J Notc

188 lPcshawar Iligh Court (llannu Ilcnch)1, whcrcin it has bccn hcld that

"lL lironr thc abovc discussion, it bccomcs crystal clcar that thc bail on mcdical ground can bc grantcd under seclion 497 Cr.P.C, if thc Court comcs to thc conclusion on thc basis of mcdical rcport that thc ailmcnt, with which, thc pctitioncr is suffcring is such that it cannot be propcrly trcatcd whilc custody in jail and that hc nccds somc spccializcd lrcatmcnt. ln thc casc bclbrc mc, thcrc is spccific rcporl of thc Standing Mcdical Iloard constitutcd to cxaminc thc condition ol thc pctitioncr that hc nccds rcgular physiothcrapy lor six 1o twclvc wccks in thc hospital whcrcvcr such tacility of trcatmcnt is availablc."

8.So lbr as thc magnitudc ol' sickncss and infirmity is conccmcd, thc august Suprcmc Court ol Pakistan in thc casc ol "Haji Mir Aflab Vs The State" (1979 SCMR 320) has clcarly hcld that in casc of pctition lor grant of bail, quantification of infirmity of a pcrson oncc found sick and infirm gct his casc covcrcd by sccond proviso to section 497 Cr.l).C. lt was lurthcr hcld in samc judgmcnt that it is not opcn to thc Court to quantily such pcrson's

sickncss and infirmity. 'l'hc pctitioncr, thcrcforc, was grantcd bail on mcdical grounds. Similar vicw was taken by thc august Suprcmc Cou( of Pakistan in casc ol "Mion Manzoor Ahmad Wattut Vs The State" reporLcd in 2007 SCMR 107 [Supreme Court of Pakistanlthat:

"l;rom thc abovc discusscd position it is clcar to us that thc bail on mcdical ground can bc grantcd undcr scction 497, Cr.l>.C. if thc Court rcachcs thc conclusion on thc basis of rncdical rcport that thc ailmcnt with which thc accuscd is suflcring is such that it cannot by propcrly trcatcd whilc in custody in Jail. 'l'hc fact that thc appcllant is not sufficring from any particular typc o[ injury (as obscrvcd by thc lcamed Judgc that thcrc was no fracturc of bonc in that casc), would not bc a ground cithcr to rcfusc or grant thc bail on rncdical ground. 'l'hc corrcct critcria lor grant ol bail to an accuscd in a non- bailablc casc, on mcdical ground, in our vicw, would bc that thc sickncss or ailmcnt with which thc accuscd is suflcring is such that it cannot bc propcrly trcatcd within thc prcmiscs of jail and that somc spccializcd trcatmcnt is nccdcd and his continucd dctcntion in Jail is likcty to allcct his capacity or is hazardous to his lifc."

9.l:or all thc abovc rcasons and whilc rclying on thc abovc rclcrrcd judgmcnts, it is hcld that a casc for bail on mcdical ground is madc out, hcncc, this pctition is allowcd and pctitioncr is rclcascd on bail subjcct to furnishing bail bonds in thc sum of Rs.5,00,000/- (Rupccs l.ivc Lac) with two surctics to thc satisfaction of trial Court. 'l.hc surctics must bc local, rcliablc, and mcn ol mcans. It is furthcr dircctcd that this bail granting ordcr is subjcct to further asscssmcnt of thc pctitioncr altcr six months, ifthc trial is not so concludcd during this pcriod and thc leamcd trial Court shall constitutc anothcr spccial mcdical board to cxaminc thc pctitioncr regarding his ailmcnt / infirmity.

10.'l-hc abovc arc thc dctailcd rcasons for my short ordcr of cvcn datc.

Announccd

(Ghafoor Zarnan)

o wrilin o o rde r gl of May, 2023

JUDGE

t tl 9{>

(S.B) Iton'ble Mt.lottice l;uol Subhon u,$i4:'