Asad Haroon Khan Vs The State and others

Judgment Sheet

PnsnawaR Hrcn Co URT, ANBA TT ABAD BTNCTT (luotcmt. DEPARTMENT) Cr.M BAt No.735-,U2023

Asad Haroon Khan... (Petitioner)

Versus

The State & others... (Respondent) Present: Mr.Atif Ali Jadoon, Advocate for petitioner.

Malik Amjad InaYat, Assistant Advocate General for State.

Fazal-i-Haq Abbasi, Advocate for comP lainant/re sPondent.

Date of hearing: 04.12.2023.

ORpnn

MUHAMMAD IJAZ KHAN. J.- This order is directed to dispose of an application filed by petitioner Asad Haroon Khan son of Muhammad Ilyas Khan for the grant of post arrest bail in a case -^2 registered vide FIR No.1089 dated 19J02022 under sections 30213241337 A(i)1337 - A(Iii)|337 -F (v)B a ppc read with section 15 The Khyber Pakhtunkhwa Arms Act,2013 at Police Station cantt Abbottabad on fresh/medical grounds.

Hon'ble Mr.Justice Muhammad liaz Khan.

2.Allegations against the accused/petitioner as levelled by the complainant namely Ejaz Khan are that he alongwith his co-accused in furtherance of their common intention made firing on the complainant and his son namely Hasnat with intention to commit their murder as well as inflicted them Danda blows. Lateron injured Hasnat succumbed to the injuries.

3.Arguments of learned counsel for parties as well as learned Assistant Advocate General appearing on behalf of State were heard in considerable detail and the record perused with their able assistance.

4.The record would show that initially the bail to the present petitioner was declined by this court vide order dated t6.06.2023 passed in Cr.M (BA) No.3l8-N2023, however, thereafter during the ,,2 pendency of the trial, the health of the present petitioner started to deteriorate, therefore, the learned counsel representing the petitioner submitted an application to the learned trial court to constitute a medical board to assess the medical condition of the petitioner as he was unable even to maintain Hon'ble Mr.Justice Muhammad Iiaz Khan.

J

balance and apparently he was seriously ill and the same application was allowed and the petitioner was referred to the medical board who opined as under:- otOn examination of the patient, he was found to have decrease power in both leg with power in the toes... On the basis of above, clinical findings and investigation patient is probably having a malignant Process (Metastatic/ Primary bone tumor??) for which he need further investigation for further confirmation and treatment of the disease process."

The aforesaid opinion of the medical board was found uncertain qua the nature of the disease of the petitioner, therefore, he was again referred to the medical board and this time it was reported that, "...the patient was found to be suffering from diffuse large B cell lymphoma' a type of blood cancer of bone Wpe. Other supportive investigations suggested the stage to be 4 and IPI score of 4 which t

suggest that Patient has High Risk .^7 disease...t'

However, the aforesaid report was agaffr found as insufficient for a clear opinion, therefore, a clarification was sought from the concerned medical board who also submitted the same' In view of the Hon'ble Mr.Justice Muhammad Iiaz Khan.

above medical opinion, the preseqt petiti 1S a tvpe blood can cer of and

suggested to be of at stage 4

5.The next question before this court is that whether such disease could be properly treated in jail or not. The record would indicate that the jail authorities have confirmed that the treatment of the said disease is not available in jail and it is part of the record that these days petitioner is admitted in ATH Abbottabad and from where he is taken to INOR hospital Abbottabad for chemotherapy'

6.It may be noted that since the petitioner is suffering from a serious disease and if not treated properly, the same may be proved fatal for his life and thus it is one of his fundamental right as guaranteed to him under Article 9 of The Constitution to secure his life by taking proper treatment and as such if the petitioner is refused bail then the same would amount to deny him treatment of his own choice and that too for a disease which may be fatal for his life. In the case

titled 66FIRDoUS PAUL vs. THE STATE,' reported Hon'ble Mr.Justice Muhammad liqz Khan.

as 2004 SCMR 15, the Supreme Court of Pakistan granted bail to an accused who was suffering from heart disease and required bypass operation by observing that condition of accused as per medical report is deteriorating. Similarly, in another case titlcd 66ZAR MUHAMMAD VS. MiAN JAFAR SHAH and another" rePorted AS PLD 2009 Supreme Court 797, the Supreme Court of Pakistan dismissed Bail Cancellation Application on the ground that the bail was rightly granted by the High Court on the medical ground by observing that gravity of respondent's sickness constitute legitimate basis for his entitlement to bail.

7, It was also noted that the petitioner has turned out to be a sick and an infirm person as as per record of the case, he is unable to walk as well and he needs support at every step of life like going ,> to the washroom etc. The order-sheets of the learned trial court also indicate that he is not attending the court proceedings as he could not be produced from the hospital, therefore, in such eventuality it is better to release him on bail than Hon'ble Mr.Justice Muhammad liaz Khan.

keeping him in jail. It may be clarified that when once an accused person succeeds to bring his case within any of the five categories as stipulated in subsection (1) of section 497 Cr.PC i.e. where an accused is a female or accused is under the age of sixteen years or if an accused is a sick or if an accused is an infirm person then he is not even required to establish his case under subsection (2) of section 497 CI.PC and since the petitioner has been succeeded to establish on the face of record that he is a sick and an infirm person, therefore, on these grounds too, he is entitled for the grant of bail. In the case titled '6Mst.GHAZALA vs. The STATE and another" reported as 2023 SCMR @, the Supreme Court of Pakistan has observed that no doubt, the offence of Qatl-i-amd (intentional murder) punishable under section 302, P'P'C' o3 allegedagainstthepetitionerfallswithinthe prohibitory clause of section 497(l) of the Code of Criminal Procedure, 1898 ("Cr'P'C'") but being a women, the petitioner's case is covered by the first proviso to section 497(l), Cr'P'C' The said proviso' Hon'ble Mr.Justice Muhammad ljaz Khan.

as held in Tahira Batool case, makes the power of the court to grant bail in the offences of prohibitory clause of section 497(1) alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, equal to its power under the first part of section 497(l), Cr.P'C' It means that in cases of women accused etc' as mentioned in the first proviso to section 497(l), irrespective of the category of the offence, the bail is to be granted as a rule and refused only as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of section 497(l), Cr'P'C'

8.It may also be clarified that grant of bail to the accused/petitioner would not be an order of acquittal in his favour rather his custody is to be taken from the State Agency and the same is to be 'a2 handed over to the sureties who shall ensure to produce him whenever he is required by the trial court. In the case titled "MsI'NASREEN BIBI 5' The STATE and others" reported as 202L PCr'LJ Note 34 [Lahore.l, it was held that grant of bail does Hon'ble Mr.Justice Muhammad Ijaz Khan.

not amount to acquittal of the accused as the custody of accused is shifted from jail lock-up to the hands of sureties, who are made responsible to produce the accused before the court as and when required. Likewise, in the case titled "IsFl\]! yq' The STATE and another" reported as 2021PCr'LJ &lig-4,2, this court has also held that grant of bail

does not mean the acquittal of accused but it is mere change of custody of accused to the hands of sureties.

g. The record further shows that the trial in this case is already in progress, therefore, further custody of the accused/petitioner is neither required to the prosecution nor the same would serve any

(6RESHAM KHAN

useful purpose. In the case titled

and anoth-er vs. The STATE throueh Prosecutor General Puniab. Lahore and another" reported as 2021 SCMR 2011, the Apex Court has observed P that the basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be Hon'ble Mr.Justice Muhammad liaz Khan,

Y

extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not.

10.Accordingly, this bail petition is allowed and the accused/petitioner Asad Haroon Khan son of Muhammad Ilyas Khan is directed to be released on bail provided he furnishes bail bonds in the sum of Rs.200,000/- (two hundred thousand), with two sureties in the like amount each to the satisfaction of the learned trial court, who shall ensure that the sureties must be his relatives or co-villagers, reliable and men of means.

ANNOUNCED.

04.12.2023. - a,5 (Jamil)

JUD GE

Hon' ble Mr.Justice Muhamm ad ljaz Khan.