Muhammad Hussain Vs Muhammad Fayyaz and another

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PESHAWAR HIGH COURT, PESHAWAR.

JUDICIAL DEPARTMENT

Cr.M. (BA) No.476-P12024 Muhammad Hussain Versus Muhammad Fayyaz and another

Date of hearing: 08.3.2024 Petitioner (s) By: Mr. Shabbir Hussain Gigyani, advocate.

State By: Mr. Umar Farooq' AAG Complainant By: Mr. Arif Rasool, Advocate (on video link) *{€tf{.*

JUDGMENT

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IJAZ ANWAR. J:- Though instant bail application, accused petitioner Muhammad Hussain son of Ali Haider seeks his bail on medical ground in case FIR No. 939 dated 23.10.2021, registered under sections 3021324 PPC at Police Station Choora, District Mardan.

2 In the instant case, accused petitioner is charged for committing the murder of Jehanzeb (his brother) and effectively attempting at the life of

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complainant Muhammad Fayaz (his nephew) by firing at them.

J Arguments of learned counsel for the parties heard and record gone through.

4 Learned counsel for petitioner stated that accused petitioner is seeking bail purely on medical ground. He stated that accused petitioner is aged about 60161years besides being suffering from Hepatitis-C and referred to report of the Standing Medical Board which upon application of the petitioner was constituted by the learned lower court. The report of the Standing Medical Board (SMB) shows that the accused petitioner was produced before the SMB and it, upon examination of the petitioner rendered the following opinion:

ooHe is suffering from chronic liver disease (HePatitis C). The Standing Medical Board is of the opinion that he needs continuous follow up and treatment from Gastroenterologist/ Physician in 0( Tertiary Care HosPital."

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The report of the SMB shows that the

accused petitioner is suffering from chronic disease Heptatis-C and is in need of continuous follow up treatment from the Physician in Tertiary Care Hospital. Besides the opinion of the SMB, there is also report received from the jail authorities which shows that accused petitioner is suffering from Hepatitis-C, dviral infectious disease who has been kept in isolation ward with other inmates having similar disease. It is further reported that as per Prison rules, prison inmate patients are to be treated on govemment expenses, however, the government supply 1S stopped due to non-availability of medicine. Such report of the jail authorities clearly depicts that the treatment of the accused petitioner is ,r\ not possible inside the jail.

5 First proviso to Section 497 (l) Cr.P.C provides for grant of bail to certain category of

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accused persons, despite being charged for offences carrying capital punishment. The same is reproduced as under:

"Provided that the Court may direct .that any person under the age of sixteen years or any woman or any sick or infirm person accused ofsuch an offence be released on bail"

6 As such the plea of accused petitioner for grant of bail on medical ground can be considered by this court. The august Supreme Court of Pakistan in case titled "Malik Muhammad Yousafullah Khan Vs the State and another (PLD 1995 Supreme Court 58) granted bail to the accused on medical ground. The relevant extract is reproduced as under:

"The bail on medical ground can be granted under section 497, Cr.P.C. Court reaches the conclusion on the basis of medical report that the properly if the ailment with which the accused is suffering is such that it cannot be treated while in custody in Jail. c The fact that the appellant was not suffering from any particular fype

of injury would not be a ground either to refuse or grant the bail on medical ground. The correct criteria for grant of bail to an accused in a non-bailable case, on medical ground, would be, that the sickness or ailment with which the accused is suffering should be such that it cannot be properly treated within the premises of jail and that some specialised treatment is needed and his continued detention in Jail is likely to affect his capacity or is hazardous to his Iife.

Similarly, in the case titled "Mian Manzoor Ahmad Watto Vs the State" (2000 SCMR 107) the august Supreme Court observed that

'oThe object of criminal trial is that the accused is made to face the trial and answer the criminal charge against him Since we have reached the conclusion after considering the medical rePort received from A.F.I.C. on the condition of the appellant that his continued detention in the jail is hazardous to his life and that the specialized treatment needed bY him, cannot be provided within the jail premisesr w€ are inclined to admit the appellant to bail in all the above three cases.

7 As observed above, accused petitioner is suffering from chronic Hepatitis-C which is a life threatening illness and in view of the opinion of the SMB and the report jail authorities, the required treatment for the szlme cannot be provided inside the jail premises. Thus the case of accused petitioner comes within the parameters set by the august supreme Court of Pakistan in the above referred judgements. Therefore, he is held entitled to the grant of bail on medical ground. Resultantly, this bail application is allowed.

8 These are the reasons for my short order even dated which is reproduced below:

66Though instant bail application, accused petitioner Muhammad Hussain son of Ali Haider seeks his bail on medical ground in case FIR No. 939 dated 23.10.2021, registered under sections 3021324 PPC at Police Station Choora, District Mardan.

For the reasons to be recorded later, the instant bail application is allowed and the accused petitioner is admitted to bail Provided he furnishes bail bonds in the sum of Rs.200,000/- with two sureties each in c the like amount to the satisfaction of

v Illaqa/ Judicial Magistrate/ MOD who shall ensure that the sureties are local, reliable and men of means."

AEEggg@. l" DGE Dated.08 .03.2024 g tt

(Amir)