2010 PLP 576 (SCMR)

ANWAR ZAHEER JAMALI, J.

Through this criminal petition petitioners has sought leave to appeal against the order dated 16-10-2009, passed by learned Single Judge in Chambers of Sindh High Court at Sukkur Bench, in Criminal Miscellaneous Application No.183 of 2008, whereby the said criminal miscellaneous application, under section 497(5), Cr.P.C. filed by the complainant Sobharo, was allowed, and consequently the order, dated 12-9-2008, granting bail to respondent No.1 on medical ground was recalled, and he was remanded to judicial custody.

2. Mr. Abdul Mujeeb Pirzada, learned Senior Advocate Supreme Court for the petitioner, making reference to the judgment of this Court in the case of Muhammad Yousafullah Khan v. State PLD 1995 SC 58, contends that even if the learned Single Judge, seized of the application for cancellation of bail, against the order, dated 12-9-2008, was of the opinion that the medical report, earlier relied by the learned Single Judge for grant of bail to the petitioner, ,was not satisfactory or insufficient for this purpose, then the proper course available for him was to make reference to some other Medical Board, instead of forming his own independent opinion, contrary to such medical report. He further contends that rule of proprietary demanded that instead of filing an application under section 497(5), Cr.P.C. before the High Court, the complainant, if aggrieved by the bail granting order, dated 12-9-2008, should have approached the apex Court for cancellation of bail of the petitioner, rather than moving such application before the same forum.

3. We have carefully considered the arguments advanced by the learned counsel, and perused the material placed on record. In the first instance, bare reading of section 497(5), Cr.P.C. shows that jurisdiction to entertain an application for cancellation of bail is concurrent in nature, therefore, such application was rightly moved before the High Court, which has earlier granted bail to the petitioner. This being the position, objection raised by the learned counsel to this effect is without any legal force. Reverting to the factual aspect of the case, it would be seen that the petitioner was absconding accused in Crime No.68 of 2008, Police Station Daharki, which was registered on 25-3-2008. He was arrested on 22-7-2008, seemingly, in injured condition, whereafter his application for grant of bail on medical ground was rejected by the Court of IIIrd Additional Sessions Judge, Mirpur Mathelo, vide order, dated 21-8-2008. Later on, before the High Court, keeping in view his health condition, as seen from the medical report submitted by Medical Officer, Central Prison-I, Sukkur, he was admitted to bail by High Court only on medical ground. However, at the time of hearing of application for cancellation of bail, which took place on 16-10-2009, when the petitioner appeared before the learned Single Judge of the High Court, about his condition of health the learned Judge observed, and noted as under:

"Contrary to the said certificate, the accused present in Court appears to be a young man in late twenties or early thirties in excellent health conditions, full of energy, hail and hearty and from no angle appears to be suffering from any disease or weakness which fact not only causes serious doubt on the veracity of the Medical Certificate issued by the Medical Officer, Central Prison-I, Sukkur by falsifying it and leaves no doubt in mind that such certificate is an arranged one and obtained solely for the purposes of misrepresenting this Court and fraudulently obtaining release of the accused on bail."

4. In such circumstances, when the cancellation of bail of the petitioner has been ordered by learned Judge, after more than one year to the earlier order, looking to the level of his physical fitness, which is indicative of his complete recovery from all the injuries and ailment, as shown in the earlier medical report, and not disputed or denied by the petitioner, it was sufficient to conclude that by that time, earlier medical report has lost its efficacy. In a case where accused is involved or stated to be involved in the commission of some heinous crime; not entitled for grant of bail on merits or has not been admitted to bail on merits, but on medical ground, such special concession to him will vanish the moment he is found to have recovered from such injury or ailment, which formed basis for grant of bail to him on medical ground and it is found that his judicial custody will be no more detrimental to his health. Moreso, as grant of bail to such an accused is not a State bounty in perpetuity which, once granted, cannot be withdrawn/cancelled.

5. If we examine the case of present petitioner on this principle, the observations of the learned Single Judge, as noted above, are quite relevant and justified for passing the impugned order. For this reason, coupled with the reason that earlier too no Medical Board was constituted by the Court before grant of bail to the petitioner on medical ground, the case cited by the learned counsel for the petitioner is also distinguishable, and has no applicability to the facts of this case. It will be further seen that in the instant case, grant of bail to the petitioner on medical ground was solely looking to his health condition, as per report of the Medical Officer, Central Prison-I, Sukkur, therefore, after his treatment and recovery, he had lost the right to avail such concession anymore, as the purpose of grant of bail to him on medical ground was achieved after his recovery.

6. To put it in other words, for considering the question of cancellation of bail under section 497(5), Cr.P.C. when the accused was earlier admitted to bail solely on medical ground, if will be his state of health at that point in time when such request is being considered, which will be material for determining/deciding such question. In the instant case, this principle has been rightly followed by learned Single Judge, which is unexceptionable.

7. Keeping in view the above discussion, we do not find any substance in this criminal petition, which is dismissed and leave refused. N.H.Q./D-1/SC Leave refuse