P L D 2012 Islamabad 73 (PLP)

MUHAMMAD AZIM KHAN AFRIDI, J.

Accused/petitioner Anjum Aqeel Khan son of Khuda Dad Khan is seeking post-arrest bail in case F.I.R. No.17, dated 5-7-2011, registered under sections 406, 409, 420, 468, 471/109, P.P.C. read with 5(2)47, PCA at Police Station FIA Crime Circle, Rawalpindi, on medical ground under the 1st proviso of section 497, Cr.P.C.

2. Learned counsel for the petitioner has argued that medical history of the petitioner establishes the factum of sickness of the petitioner. That this Court vide order dated 21-2-2012 constituted medical board for assessing the disease of the accused/petitioner for the purpose of bail. That the findings of the medical board also suggest the gravity of the sickness of the accused/petitioner and that surgery for Aortic Valve repair has been recommended to be performed abroad.

3. Reliance was placed on case-law reported in 1971 SCMR 657, 1998 SCMR 1065, 2004 SCMR 15, 1995 SCMR 1819 and PLD 1995 Supreme Court 58.

4. Learned standing counsel assisted by counsel for the complainant argued that strong reasons must exist for grant of bail on the ground of sickness or ailment. That no such reasonable grounds exist which entitles the petitioner to the grant of bail under the 1st proviso of section 497 Cr.P.C.

5. Reliance was placed on case-law reported in 1995 PCr.LJ 502 (Peshawar) and 2009 PCr.LJ 1472 (Lahore).

6. I have heard arguments of learned counsel for the parties and perused the record.

7. According to the medical history, accused/petitioner was suffering from moderate mitral stenosis in the year 2001, which is reflected severe mitral stenosis in the year 2004. According to the report of Cromwell Hospital U.K. the accused/petitioner was suffering from Moderate/severe mitral stenosis in a pliable valve with fusion of both commissures and limited calcification. Moreover, mild mitral regurgitation was also diagnosed. According to the certificate issued by Assistant Professor Cardiology PIMS Hospital dated 19-12-2011, the accused/petitioner was at a very high risk of thromboembolism as he was in atrial fibrillation with enlarged" left atrium, and mitral stenosis and was on anticoagulation for that purpose.

8. According to the findings of the medical board constituted by this Court, the accused/petitioner is reported suffering from rheumatic Heart Disease and has severe mitral valve disease. He is classified symptomatic with less than ordinary physical activity and, due to the above, he has been recommended to undergo mitral valve replacement surgery along with Aortic Valve repair in a well equipped facility. It has been further opined that the physical facility i.e. Operation theater equipments, equipments required for post operative management and other relevant supportive facilities are not developed up to required standards at PIMS at the moment. Safe surgery especially for Aortic Valve repair was stated not available and recommendations for performing the same abroad were made.

9. The-above 'factors and findings including the report of medical board undoubtedly suggest that the accused/petitioner is a sick person within the meaning of 1st proviso of section 497, Cr.P.C.

10. In case of Zakhim Khan Masood (1998 SCMR 1065), bail was granted to the accused as he was undoubtedly sick and treatment was required in conducive conditions free from any kind of pressure. It was observed that an accused in custody could not have full peace of mind and that recovery from ailment would sure to be slow in detention. In the case of Firdous Paul (2004 SCMR 15) accused was granted bail as he was suffering from severe heart disease and due to high risk, emergent bypass operation was required: In the case of Mailk Muhammad Yousafullah Khan (PLD 1995 Supreme Court 58), it was observed that the opinion of the medical board cannot be brushed aside lightly by the Court in the absence of any counter opinion or any medical literature placed before the Court to contradict the opinion given by the board. In case of Liaqat and another (1995 SCMR 1819) it was observed that a sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life.

11. In case of Aamir Mehmood reported as 2009 PCr.LJ 1472 (Lahore), (referred to and relied on by the prosecution) it was observed that correct criteria for grant of bail to an accused in a non-bailable case on medical ground was that the sickness or ailment would not be properly treated within the jail premises and that some specialized treatment was needed and that his continued detention in jail was likely to affect his capacity or was hazardous to his life. In the case of Malik Muhammad Yousafullah Khan (1995 PCr.LJ 502), it was held that medical opinion of a doctor was not so sacrosanct as to be believed in toto or to take each word of it as gospel truth, and was rather subject to the scrutiny of the Court.

12. Criteria laid down in the case-law discussed above is indicative of grant of bail to sick accused when the Court is satisfied of such sickness and, furthermore, when such disease cannot be properly treated in custody and that in such a situation, gravity of disease would and shall outshine the gravity of the offence.

13. Keeping in view the case-law referred to above and the ailment of the accused/petitioner and findings of the medical board as well as medical history of the accused/petitioner, I am of the humble view that the accused/petitioner is a seriously sick person and that his ailment is life threatening and that his treatment is not possible in jail premises and that for the same he deserves to be released on bail under the 1st proviso of section 497, Cr.P.C. 14: In view of the above, the application of the accused/petitioner to grant of bail is accepted and accused/petitioner is ordered to be released on bail provided he furnishes bail bonds to the tune of Rs.10,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial court. M.W.A./65/Isl. Bail granted