2024 PLP 1213 (YLR)

FAZAL SUBHAN, J.

Through this bail application, petitioner Inshaullah is seeking his post arrest bail on fresh ground in connection with FIR No.653 dated 17.10.2020 under section 302/34, P.P.C. of Police Station Lakki, District Lakki Marwat.

2. Contents of FIR reveal that on 17.10.2020, complainant Muhammad Aurangzeb son of Ghulam Yousaf while present with the dead body of his deceased brother Naimat Ullah, reported that on the day of occurrence, at 16:10 hours, he along with his brother Naimat Ullah and his nephew Zahid Ullah were present in their fields for cultivation of crops, when in the meanwhile, four persons namely Inshaullah, Khaliq Marjan, Karim and Sabar Jan on two different motorcycles arrived duly armed with Kalashnikovs, whereafter they alighted from their respective motorcycles and all of them started firing on his brother Naimat Ullah. As a result, he was hit and fell on the ground and thereafter, all the accused boarded on their respective motorcycles and left. Being empty handed, they could not resist the attack. Motive for the occurrence was stated to be previous blood feud enmity.

3. The petitioner Inshaullah initially remained fugitive from law, however, later on, he applied for pre arrest bail and on refusal / rejection of his petition, he was arrested on 06.04.2021. He applied for post arrest bail and was granted bail by the learned Additional Sessions Judge-I, Lakki Marwat on 24.05.2021. A bail cancellation application was filed against him before this Court, but he failed to appear. On 09.12.2022, the petitioner lodged Naqal Mad No.27 in injured condition at City Hospital, Lakki Marwat in respect of the firing upon him by accused Naseer Khan son of Muhammad Nawaz and Hidayat Ullah son of Mashal Khan, resulting injuries upon his person and being required in the instant case FIR No.653, he was formally arrested in the case. He applied for bail in Court of learned Additional Sessions Judge-I, Lakki Marwat on 23.01.2023 on medical ground, however, his bail petition was dismissed on 28.03.2023, hence, he has now approached this Court for grant of bail on the basis of report of medical board.

4. Arguments of learned counsel for petitioner, learned counsel for complainant assisted by learned A.A.G. for the State heard and record perused.

5. From the perusal of record, it is evident that petitioner was earlier granted bail by the learned Additional Sessions Judge-I, Lakki Marwat on 24.05.2021, which was subsequently cancelled by this Court, whereafter he absconded, but has later on been arrested when he sustained injuries in an incident reported by him through Naqal Mad No.27 dated 09.12.2022. In the said incident, the petitioner has sustained injuries on right arm and elbow. During the pendency of his application for bail, the learned Additional Sessions Judge-I, Lakki Marwat issued directions for constitution of Standing Medical Board to examine the petitioner in respect of his disability, whereafter Standing Medical Board examined the petitioner and submitted its report vide letter No.861-62/MB dated 15.03.2023 with the following findings: "The following Standing Medical Board examined accused Inshaullah son of Gul Marjan resident of Wanda Kalan, Lakki Marwat. C/o pain right arm and elbow and inability to move fingers and wrists. History of FAI 2-1/2 month ago. O/E External fixator applied to right arm across elbow. The patient is unable to move right hand fingers in either direction except to a mild degree. Sensations are also diminished both on volar and dorsal surface of the hand. Wasting of the hand is present. Both extension and flexion of the wrist is diminished. For further treatment higher level consultation is requested."

6. From the said report, it is clear that the Medical Board, after examining the petitioner / injured, has opined that as a result of firearm injury, sensations in the right hand fingers have diminished both on volar and dorsal surface of the hand and it was concluded that the petitioner requires further treatment on higher level consultation. The record reveals that the petitioner is a young man of 31/32 years and the injury is upon his right hand elbow, which is always a working hand of a person and if he is not provided the specialized treatment then there is likelihood of permanent damage to his right arm.

7. The first proviso to section 497, Cr.P.C. deals with the grant of bail to a person who is under the age of 16 years or any woman or any sick or infirm person accused of non-bailable offence. From the Standing Medical Board report, it is clear that though, the petitioner is being provided treatment in the hospital, but request has been made for further treatment at higher level consultation, through which it can be inferred that such a high level treatment is not available in the jail hospital. In such circumstances, when the medical board report has shown apprehension of loss of ability of the right hand then it can safely be held that the petitioner may not be declined bail on the sole ground that he is involved in a case, which falls within the prohibitory clause of section 497, Cr.P.C. In this respect, reliance can safely be placed on the judgment of this Court reported in 2018 PCr.LJ Note 188 [Peshawar High Court (Bannu Bench)], wherein it has been held that: "

11. From the above discussion, it becomes crystal clear that the bail on medical ground can be granted under section 497, Cr.P.C., if the Court comes to the conclusion on the basis of medical report that the ailment, with which, the petitioner is suffering is such that it cannot be properly treated while custody in jail and that he needs some specialized treatment. In the case before me, there is specific report of the Standing Medical Board constituted to examine the condition of the petitioner that he needs regular physiotherapy for six to twelve weeks in the hospital wherever such facility of treatment is available."

8. So far as the magnitude of sickness and infirmity is concerned, the august Supreme Court of Pakistan in the case of "Haji Mir Aftah v. The State" (1979 SCMR 320) has clearly held that in case of petition for grant of bail, quantification of infirmity of a person once found sick and infirm get his case covered by second proviso to section 497, Cr.P.C. It was further held in same judgment that it is not open to the Court to quantify such person's sickness and infirmity. The petitioner, therefore, was granted bail on medical grounds. Similar view was taken by the august Supreme Court of Pakistan in case of "Mian Manzoor Ahmad Wattoo v. The State" reported in 2007 SCMR 107 [Supreme Court of Pakistan] that: "From the above discussed position it is clear to us that the bail on medical ground can be granted under section 497, Cr.P.C. if the Court reaches the conclusion on the basis of medical report that the ailment with which the accused is suffering is such that it cannot by properly treated while in custody in Jail. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be a ground either to refuse or grant the bail on medical ground. The correct criteria for grant of bail to an accused in a non-bailable case, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialized treatment is needed and his continued detention in Jail is likely to affect his capacity or is hazardous to his life."

9. For all the above reasons and while relying on the above referred judgments, it is held that a case for bail on medical ground is made out, hence, this petition is allowed and petitioner is released on bail subject to furnishing bail bonds in the sum of Rs.5,00,000/- (Rupees Five Lac) with two sureties to the satisfaction of trial Court. The sureties must be local, reliable, and men of means. It is further directed that this bail granting order is subject to further assessment of the petitioner after six months, if the trial is not so concluded during this period and the learned trial Court shall constitute another special medical board to examine the petitioner regarding his ailment / infirmity.

10. The above are the detailed reasons for my short order of even date. MQ/216/P Bail allowed.