2006 P Cr (PLP)

M. BILAL KHAN, J.

Muhammad Riaz son of Ali Muhammad seeks post-arrest bail in case F.I.R. No.239 of 2004 dated 2-11-2004, registered at Police Station Phullarwan District Sargodha for offences under sections 302, 109, P.P.C.

2. The allegation against the petitioner as it unfolded in the F.I.R. registered at the instance of Muhammad Iqbal son of Jahan Khan was that his son Ghulam Kabir, who was employed as a Helper at Mona Depot was proceeding to the place of his duty on 2-11-2004 at 7 a.m. when he had reached the land of Muhammad Siddique in the area of Village Rattoo Kala, Muhammad Riaz son of Ali Muhammad, (petitioner) armed with .12 bore double-barrelled gun who had hidden himself in a dry watercourse came in front of his son all of a sudden; he made a straight fire hitting his son on the chest, who fell down from the bicycle; thereafter he made repeated fire shots, which hit his son on the head, back, arm, elbow, thighs and shoulders; the report of gunshots attracted the complainant, Noor Muhammad son of Muhammad, Muhammad Ameer, son of Sultan Mehmood, who also witnessed the occurrence; on seeing the witnesses Muhammad Riaz petitioner ran towards his Dera; the deceased succumbed to his injuries at the spot. Resultantly, the instant F.I.R. had been recorded. The motive, according to the complainant, was that 4/5 days before the occurrence Muhammad Riaz and Ghulam Kabir deceased had a scuffle in which Ghulam Kabir had beaten up Muhammad Riaz and had insulted him. It was according to the complainant on account of that grudge that his son had been assaulted with the abetment of Fateh Muhammad son of Ali Muhammad, Baati Khan son of Muhammad Khan.

3. The petitioner had been arrested on 11 November, 2004, and is in custody ever since. He filed his post-arrest bail application to the learned Court of Session in which inter alia the ground of his ill health had also been taken. However, the learned Additional Sessions Judge, vide his order, dated 4-1-2006 proceeded to dismiss the said bail application. Hence this petition before this Court.

4. I have heard the learned counsel for the parties and have perused the record brought by Muhammad Ashraf, A.S.-I. Police Station Phularwan District Sargodha.

5. At the outset the learned counsel for the petitioner submitted that he would press this bail application mainly on the ground of ill health of the petitioner. He submitted that the petitioner is seriously ill and his treatment in the jail hospital is not possible. On 30-1-2006, I had directed for medical examination of the petitioner by a Board to be constituted by the Medical Superintendent District Headquarters Hospital, Sargodha. A report was submitted by the District Medical Board, Sargodha, which suggested that the petitioner was diagnosed of Cholangiocarcinoma and that he had been previously operated upon in Sheikh Zayed Hospital. The Board had opined that he needed referral to Sheikh Zayed Hospital for further management. On receipt of this report, I had directed Superintendent District Jail, Sargodha to produce the petitioner before the Administrator, Sheikh Zayed Hospital, Lahore and had also directed the Administrator to get the petitioner examined by the concerned specialist(s) and to file a detailed report. Pursuant to the said order of this Court, dated 24-3-2006, the petitioner was produced before the Administrator, Sheikh Zayed Hospital, who in turn caused him to be examined by Dr. Haroon Majeed Dar, Assistant Professor, Department of Surgery. The said Assistant Professor in his report dated 8-4-2006, submitted to the Administrator had observed as under: -- "I have examined this patient (dated 8-4-2006) who was suffering from Cholangiocarcinoma and was operated on 15-2-2001 at Sheikh Zayed Hospital, Lahore. At the moment he has complaints of severe abdominal pain and history of malena (bleeding per rectum). He needs immediate hospitalization, blood transfusion and investigations for further management."

6. On 11-5-2006, the case came up for hearing before me. After examining the report of Dr. Haroon Majeed Dar, Assistant Professor, I had directed that the doctor would appear himself personally, as the report was not quite elaborate. Dr. Haroon Majeed Dar, Assistant Professor has appeare in the Court today. He submitted that the petitioner is suffering from Cholangiocarcinoma and that the complaints of severe abdominal pain and history of malena (bleeding per rectum) are most likely cause of recurrence of Cholangiocarcinoma and that in his opinion the petitioner was terminally ill. He submitted that in the present situation he cannot be operated upon again, however, he needs supportive and tendering care in the hospital, which he had suggested in his report. According to him apparently no cure is available. He also added that chances of survival of such-like patients are extremely poor.

7. In view of the precarious state of health of the petitioner his further incarceration will only add to his misery and affliction and will be absolutely catastrophic for him; the precedents cited by the learned counsel for the complainant are not relevant inasmuch as none of the petitioners therein had been diagnosed to be suffering from Cholangiocarcinoma i.e.; the disease which afflicts the petitioner.

8. Resultantly without adverting to the other merits of the case, I admit the petitioner to post-arrest bail subject to his furnishing bail bond in the sum of Rs.2.00,000 (two lac) with two sureties in the like amount to the satisfaction of the learned trial Court. H.B.T./M-274/L????????????????????????????????????????????????????????? Bail granted.