2005 PLP 1904 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner-complainant seeks leave to appeal against the order, dated 24-11-2003 of a learned Judge in Chambers of the High Court of Sindh, Hyderabad Circuit, Hyderabad, whereby Criminal Miscellaneous No. 108 of 2003 filed in Criminal Appeal No.35 of 2003 by respondent No.1 Khuda Bux under section 426, Cr.P.C. was allowed and he was granted bail.

2. Briefly, stated, the facts giving rise to the filing of instant petition are, that on 16-7-1983 at about 1900 hours a case under sections 302, 109, P.P.C. was lodged against respondent Khuda Bux at Police Station Tando Muhammad Khan wherein he was sent up to face trial before the Court of learned IVth Additional Sessions Judge, Hyderabad. On conclusion of trial, he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. Respondent Khuda Bux preferred Criminal Appeal No.35 of 2003 against the said judgment before the learned High Court of Sindh, Hyderabad Circuit, wherein he moved application under section 426, Cr.P.C. which was allowed vide impugned order.

3. We have heard Mr. M.M. Aqil Awan, learned Advocate Supreme Court for petitioner and have gone through the record and the proceedings of the case in minute particulars.

4. Learned counsel for the petitioner contended that cataract is not a disease but opacity in the crystalline lens which grows with age. According to him, Medical Officer who examined respondent did not opine that operation if not carried out would damage the eyes of respondent. He stressed that said ailment was of common nature for which adequate treatment can be conveniently provided in the Jail Hospital. According to him, keeping in view, gravity of offence and nature of accusation against respondent, benefit of bail could not have been extended.

5. Medical report of respondent Khuda Bux indicates that he was suffering from eyes problem and was advised to wear eye-glasses and for further treatment and management like CP, Blood Sugar, X-ray chest but he was not willing to go through operation at that time. The report further shows that all the above investigations were possible in the hospital.

6. On the perusal of the said report, it is apparent that respondent was not suffering from a disease which was either detrimental to his life or was not possible to be treated while in custody. On the contrary, the Medical Officer in clear terms opined that even eyes operation was possible in the hospital while in custody.

7. It is well-settled principle of law that for releasing an accused on bail on medical ground, there must exist strong reasons to believe that despite advanced medical technology and availability of medicines, treatment was not possible at all having regard to the nature of illness. Thus, adverting to the facts of the present case, it is evident that respondent Khuda Bux was suffering from common disease which could have been conveniently treated in jail hospital and does not appear to be dangerous to life or even to health. The learned High Court has seriously erred in suspending the sentence of imprisonment for life while assigning inappropriate reasons and misconstrued the legal position.

8. Resultantly, the impugned order being not sustainable in law is set aside. The petition is converted into appeal, and is allowed. Bail granted by the learned High Court is cancelled. N.H.Q./G-62/S Bail cancelled.