2014 PLP 1363 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Appellants/applicants named above have sought suspension of the execution of sentence imposed upon them by the trial court vide judgment, pronounced on 31-10-2013,by the trial court, whereby under different provision of Penal Code, separate sentences have been recorded.

2. Ishrat Ali Lohar, learned counsel at the very outset submits that the applicants were on bail at the time of pronouncement of judgment and the next point on which he has much emphasized, is a medical ground. It is stated that since August, 2009, the appellant/accused Malik Humayoon was unable to attend the trial court, due to his precarious condition and condonation of absence was granted to him on medical ground as due to multiple gunshot/firearm injuries he was found unable to walk and always move through the wheel chair and such certificate has also been issued by the doctor. However, co-accused/appellant Malik Babar is suffering from the chronic liver disease and cirrhosis, due to such disease he was admitted in hospital for six months and then liver transplant was planed, if labs allowed. His condition is very critical and he was referred to abroad for liver transplantation, therefore, his further detention in jail is very harmful and that could not be treated in jail. Learned counsel next contended that even otherwise the impugned judgment suffers from serious irregularities, illegalities more particularly, there are material contradictions in between P.Ws'/complainant/medical evidence/expert evidence and circumstantial evidence, those were ignored. It is submitted that the paper book has not been prepared and other accused have also been awarded conviction, who shall have to engage their counsel, therefore, there is no probability of the disposal of appeal at an earliest. Learned counsel placed his reliance on the case-law of superior courts.

3. Mr. Aijaz Shaikh representing the appellant Malik Humayoon contends that grant of bail to a sick person may not be withheld particularly ailment of the accused/appellant No.2 was treatable in jail hospital and was not life threatening. Reliance has been placed on the rulings of superior courts.

4. Mr. Hidayatullah Abbasi, representing the complainant, states that the appellants have been convicted in heinous offence and that the disease suffered by them is not of serious nature and they can be treated in the jail.

5. I have considered the arguments advanced from both sides and perused the record.

6. Since the suspension of sentence has been sought mainly on medical reasons, therefore, by an earlier order dated 4-11-2013, medical report of the appellant Malik Babar and Malik Humayoon was called from concerned jail authorities and by subsequent order on 13-11-2013, Special Medical Board was ordered to be constituted by the Secretary Health, Government of Sindh, Karachi, consisting of experts in the relevant, fields with the direction to the jail authorities to produce both appellants/accused before the Special Medical Board on the relevant date. It appears that in compliance of directions of this court, the Special Medical Board in respect of both applicants in their final report dated 13-12-2013 opined as under:-- "(1) Appellant Malik Babar with history of alcohol consumption Jaundice, anemia & Pedal Oedma positive. Anemia positive. Flappy tremors positive. The Hepato splenomengly with acites. Case of cirrhosis of liver with hepatosplenomegaly grade II. (Hepatic encephalopathy). His stay in jail will be detrimental to his life. (2) Regarding the 2nd appellant Malik Humayoon the Board is of opinion that, "In pursuance of honourable Court orders regarding stay in jail detrimental to life. Appellant/ prisoner needs regular physio-therapy and bowel care in jail. His disease in not detrimental to his life in jail ".

7. In the case of Sardar Amjad Ali Khan v. The State (2009 SCMR 425), the bench of three hon'ble Judges of Supreme Court of Pakistan converted the petition into appeal and the appellant was granted bail who was suffering from chronic liver disease (HCV + VE) with normal ultrasound of abdomen, SGPT increased which the PCR-HCV virus detected and can be treated with specific interferon therapy, as disease has long chronic course, one cannot predict the course and held in penultimate paragraph 4 as under:-- "We have given anxious thought to the contentions raised at the bar and are of the opinion that petitioner is in custody for more than four years and trial has not been concluded. The petitioner is suffering from a chronic disease which cannot be treated while keeping him in custody. Accordingly, petition is converted into appeal and is allowed. Appellant Sardar Amjad Ali Khan is granted bail subject to furnishing surety in the sum of Rs.2,00,000 (Rupees two lacs) with P.R bond in the like amount to the satisfaction of the trial court".

8. In the case of Hakim Ali Zardari v. The State (2003 PCr.LJ 154), the sentence awarded to the appellant was suspended on medical report that he was at present almost a crippled person, who was not able to perform his ordinary pursuits of life on his own. In the case of Malik Fida Hussain v. The State (2002 YLR 2199), a Division Bench of Lahore High Court, by referring plethora of judgments of apex Court suspended the sentence awarded to the appellants on medical ground and further held that he would be free to get treatment from a hospital or a physician of his choice as the condition of the applicant was deteriorating and who need constant medical treatment and supervision. In a full bench ruling reported as 1979 SCMR 320 in the case of Haji Mir Aftab v. The State, honourable Apex court suspended the sentence on the ground that the person once found sick and infirm gets his case covered by 2nd proviso to section

497. In the case of Lal Din v. The State (1994 PCr.LJ 1796), a Division Bench of Lahore High Court suspended the sentence on the ground that as per Medical Board the applicant was seriously ill and could not be treated in jail.

9. The learned counsel representing the complainant and learned D.P.G. have opposed the suspension of sentence but they are not found able to distinguish the settled law as laid down by the superior courts and even they did not deny the serious ailment of the appellants/applicants. From the medical reports, mentioned supra, it appears that applicant Malik Humayoon is a crippled person and the nature of illness of applicant Malik Babar is of serious nature. Keeping in view the ailment of applicants being of serious nature and applying the criteria laid down by the superior courts in the cases relied upon by learned counsel for the applicants, I am of the opinion that the appellants are entitled to the relief sought under section 426, Cr.P.C.

10. For the foregoing reasons, the sentences awarded to the appellants by the trial court are hereby suspended, till final disposal of the appeal, with direction that the appellants/applicants be released on bail on furnishing surety in the sum of Rs.5,00,000 (Rupees five lacs) each and PR bond in the like amount to the satisfaction of Additional Registrar of this court. HBT/B-4/Sindh Sentence suspended.