1990 P Cr (PLP)

I have heard Mr. A.Q. Halepota learned counsel appearing for the applicant, Mr. Abdul Ghafoor Mangi, learned A.A.‑G. appearing for the State, and have also gone through the documents including the depositions of the two Medical Officers produced alongwith the bail application. 1t was contended by Mr. A.Q. Halepota learned counsel appearing for the applicant, that the case was false and the applicant has been implicated due to enmity and suspicion. It was further contended that the applicant was not present at the scene of offence at the time of incident, and that he was ill and remained in Civil Hospital. Karachi as indoor patient from 18‑7‑1988 to 23‑7‑1988. In this connection the learned counsel has relied upon the discharge slip which has been produced as Annexure `F. It was further contended that the examination of two Medical Officers, at bail stage, was not warranted by law and on the other hand he evidence given by the Medical Officers did not falsify the plea of alibi taken by the applicant. That the ocular evidence was in conflict with the medical evidence and, therefore, it was a case of further inquiry. Mr. Abdul Ghafoor Mangi, learned A.A.‑G. appearing for the State, has opposed the grant of bail to the applicant on the ground that the evidence of Dr. Khurshid Ahmed shows that the applicant was not the person who was admitted in the hospital on 18 7‑1988, and therefore, the applicant was not entitled to bail at this stage. I have considered the contentions. The F.I.R. clearly shows that there was enmity between the parties. In the present case the applicant has specifically taken the plea of alibi and according to him, he was admitted as indoor patient in the Civil Hospital, Karachi from 18‑7‑1988 to 23‑7‑1988. The certified copy of discharge slip has been produced as Annexure `F, which shows that one Muhammad Ashraf resident of Shah Yaqib Taluka Shah Bander, District Thatta was admitted in the hospital on 18‑7‑1988 and was discharged on 23‑7‑1988. This discharge slip is signed by the concerned doctor and counter‑signed by Registrar Discharge slip further shows that patient was suffering from Appendicles‑lump. The Additional Sessions Judge while considering the question of confirmation o: bail, has examined two doctors; namely, Dr Tufail Ahmed and Dr. Khurshid Mangrio. The evidence of Dr. Tufail Ahmed shows that he is posted as Registrar Surgical Unit No.111, Civil Hospital, Karachi, since 1984. There are doctors working under him. Alongwith him there are four other Registrars who also supervise the said Unit According to him, the discharge slip bears the signature of Dr. Khurshid Ahmed and one other doctor. He has produced the discharge slip as Annexure `A'. Photostat copy of admission register and complete register have been produced as Annexures `B' and `C'. In cross‑examination of D.P.P. he has stated that he had not attended this patient on any date. Dr. Khurshid Ahmed has deposed that patient Muhammad Ashraf was admitted in, Surgical Ward, which was originally called as No.I1I and now as Ward Nt5.1l on 18‑7‑1988. Patient Muhammad Ashraf was referred by Medical Officer causality. He was not on duty id the said ward at the time when Muhammad Ashraf was admitted. He was treated in the Civil Hospital in Conservative Appendicles-lump. He did not know who was the Medical Officer and who had detected the disease, of the patient Muhammad Ashraf. He had never seen accused Muhammad Ashraf who is present in Court today as patient in his ward n r he had examined him. According to record Muhammad Ashraf was discharged on 23‑7‑1988. The discharge slip and discharge register sheet bears his signatures. In such type of disease the patient is generally admitted for try 6/7 days in ward so that lumps is dissolved. When the patient is on the bed in the hospital, his case file is maintained by Resident Medical Officer or House Officer on duty. He was sure that personal case file of Muhammad Ashraf was not maintained in Surgical Ward No. III, when he was in the said bed. The record shows that Muhammad Ashraf was admitted on Bed No.14, with a slip from casualty. There is no column in Annexure `B' for writing identification mark of patient. In non‑medico‑legal cases no identification marks of patient are mentioned. Its record is maintained and kept in record room. He had visited patient on Bed No.14 and also examined him. He examined patient Muhammad Ashraf from 19‑7‑1988 to 23‑7‑1988. He must have seen the case file of patient Muhammad Ashraf during this period. When patient is discharged his case file is sent to the record room. He could identify the patient even after lapse of time in case patient was examined by him or operated by him. In reply to a question put by Court he has stated that on receipt of summons from the Court he had searched for the case file in the record room but it was not available. He has denied a suggestion that accused Muhammad Ashraf was admitted in the ward and he was giving false evidence at the instance of the complainant party. The discharge slip marked `A' was written by House Officer. Dr. Zarin and it bears his (witness) signature. In cross‑examination of D.P.P. he has deposed that father's name of Muhammad Ashraf is not written in discharge slip. According to him, generally the father's name of patient and caste is not written. It has been contended by Mr. A.Q. Halepota, learned counsel appearing for the applicant that the ‑‑discharge slip and the copy of register produced by Dr. Tufail Ahmed prima facie support the contentions of the applicant. As far as Dr. Khurshid Ahmed was concerned, he was examined nearly seven months' after he had examined the applicant, and therefore, he may not have been able to identify the applicant. It was further contended by the learned counsel that while deciding the question of confirmation of bail the learned trial Judge had erred in holding full-fledged trial by examining the Medical Officers. In support of his contentions he has relied upon: (1) The unreported case of Criminal Petition No.K‑32 of 1982; Farooq Ahmed v, The State, wherein it was contended on behalf of the petitioner that the learned Single Judge seriously erred in recording evidence at interlocutory stage in proceedings regarding bail, it was further contended that the case against the petitioner requires further inquiry and this should have been left to the Investigating Officer (trial Court) rather than taken up by the High Court at this stage and the Honourable Supreme Court was pleased to observe: "A good case for grant of interim bail was made out and the petitioner was released on interim bail. Later on the bail was confirmed." The contention raised by Mr. A.Q. Halepota has considerable force and is supported by the above, unreported case. Even otherwise while considering the a question of bail, the Courts are not expected to go into deeper appreciation of the prosecution or the defence case as, it is bound to affect one or the o r party at the trial. 11, the case of Muhammad Yousuf v. Muhammad Anwar 1984 P Cr. L J t25; wherein one of the petitioners an accused of murder was admitted to bail the plea of alibi supported by Medical Officer and Staff of Rural Health (3) In the case of Akram Khan v. The State and another 1978 S C M R 242; the respondent/accused was granted bail by the High Court on the ground of alibi which was supported by a certificate issued on the basis of unit register Which showed that at the time of occurrence he was on duty. The complainant led petition for leave to appeal and their Lordships of the Supreme Court were pleased to dismiss the petition with the observations that: "On our part, we do not see any reason to interfere with the impugned order. The learned counsel was unable to say that the order in question was unreasonable or perverse and or was not passed by the learned Chief Justice in the exercise of proper discretion:" The discharge slip and register clearly show that one Ashraf resident of Shah Yaqiq was admitted as indoor patient and it has been admitted by Dr. Khurshid Ahmed that the case filed of patient was maintained but he was not able to find it out from the record room. Admittedly he had appeared in Court g nearly after seven months of the admission of patient in the hospital. Much can be said about the evidence of Dr. Khurshid Ahmed. Be that as it may, the question whether someone else had got himself admitted in the hospital with the name of Ashraf resident of village Shah Yaqiq or the present applicant, was a question, which could be decided only at the trial. In view of the above discussion I am clear in my mind that the case of the applicant requires further inquiry and, therefore, I direct that the applicant shall be released on bail on furnishing surety in the sum of Rs.1,00,000 (Rupees one lac) and PR. bond in the like amount to the satisfaction of the trial Judge. The observations made by me in the above order are tentative in nature, and the trial Judge shall hear and decide the case uninfluenced by whatever has been said or observed in the above order. However, if any tangible evidence is brought on record against the applicant during the trial the learned Judge will be at liberty to cancel his bail. N.H.Q./M939/K bail granted