2018 PLP 2023 (SCMR)

MUSHIR ALAM, J.

Instant petition challenging the order dated 14.5.2018 passed by learned High Court of Sindh, Karachi whereby the post arrest bail petition filed by the petitioner on the medical ground was dismissed.

2. It may be observed that the petitioner was declined bail on merit by the High Court which order was maintained by this Court vide order dated 31.3.2018. It appears that the order declining bail was also challenged by way of review application which was dismissed by the High Court on 16.5.2018 available at page-32 of the main paper book.

3. Mr. Abid S. Zubari, learned counsel appearing for the petitioner contended that the medical condition of the petitioner is serious, and that he needs specialized treatment. If treatment is not provided his detention in Jail is likely to affect his well-being which is also hazardous to his life.

4. We have noted that the learned bench of the High Court perused report of the first Special Medical Board dated 20.12.2017 at Jinnah Postgraduate Medical Centre (JPMC), Karachi and the report of the second Medical Board held on 15.01.2018. The learned Bench expressed its doubt as to the veracity and reliability of such medical reports. As report of Medical Board by Agha Khan University Hospital, Karachi dated 24th April, 2018 wherein it was reported that "the board is of the opinion that this condition is not life-threatening and is not likely to cause disability". Court has also taken notice of the report dated 21.4.2018 by In-charge Orthopaedic Workshop, JPMC whereby the petitioner was "advised for "Hydrotherapy" 3.4 times a week". As regards to the petitioner it was opined in para 48 which concluded as follows: "

48. We have therefore sought a middle ground based on all the competing medical information before us: (a) We do not consider that the petitioner has made out a case for the grant of bail on medical grounds and as such his petition for bail on medical grounds is dismissed. (b) Due to the petitioner's past medical history his ailment does not appear to be feigned. We note that it appears to be the agreed position by all boards that the petitioner needs physiotherapy. (c) That according to the JPMC he needs physiotherapy 2 x's a day and now hydrotherapy 3 to 4 times a week and that hydrotherapy is not available at JPMC. (d) That according to the JPMC and as confirmed by the Jail authorities the physiotherapy and hydrotherapy which the petitioner now needs is not available in the Jail hospital. (e) Thus, although the petitioner be returned to jail when so advised by the jail doctors he may be taken under guard from the jail to a hospital of his choice in Karachi where the required physiotherapy and hydrotherapy whichever the petitioner needs shall be provided to him at his own expense and then returned to jail after each treatment." And while penning down summary in para-49 sub-para-3 as regards to the petitioner concluded as follows: "

3. Petitioner Sharjeel Inam Memon's petition for post arrest bail on medical grounds is dismissed however he may be taken to hospital for specialized treatment as and when advised by his Dr's in accordance with para 48 of this order."

5. When this petition came up for hearing on 29.8.2018 the petitioner was required to place on record MRI report and further examination report of Dr. Hameedullah Buzdar, MD/FCPS, South City Hospital, Karachi who suggested in his opinion dated 16.2.2018 to carry out certain diagnostic including MRI available at page 109 of the file which read as under: "I examined Mr. Sharjeel Inam Memon, his neurological findings mostly relate to low back pain and sacroiliac joint involvement. MRI lumber spine shows lumber spasm with disc degeneration at L3, L4 and L5 level and disc dehydration. In view of findings I would suggest MRI Dorsal spine, CT, sacroiliac joints, and full length spinal X-Ray to further evaluate and decide his further management".

6. Learned counsel for the petitioner 'filed C.M.A. No.1123-K of 2018 today whereby placed the report of JPMC, Karachi, MRI No.2289-18 dated 24.3.2018 in respect of "Neck pain" wherein it is opined as follows: "Craniovertebral junction appear normal with no evidence of tonsillar herniation. Visualized spinal cord appears unremarkable." Second MRI No.2290-18 dated 24.3.2018 in respect of "lower back ache" wherein it is opined as follows: "Prevertebral and paravertebral soft tissue appear unremarkable. Facet joints appear unremarkable." In medical terminology "unremarkable means study or finding either normal or has abnormalities that are of no significance to the patient in that situation". It appears that there is no follow up report of Dr. Hameedullah Buzdar, MD/FCPS, South City Hospital that referred the petitioner for lumber disc surgery with replacement. There is no report from any Doctor available on record which suggests disc surgery with replacement.

7. Mr. Zubari, learned counsel for the petitioner contends that bail on medical ground is to be granted in the light of principle laid down in the case of Muhammad Arshad v. The State and another (1997 SCMR 1275) to enable the petitioner to get proper treatment of his choice. Purpose of bail on medical ground is to ensure that under trial prisoner is allowed to avail medical treatment and or surgical intervention if need be in hospital of his choice in the country and not to set him at liberty till conclusion of trial. In the case of Dadio v. Sobharo and another (2010 SCMR 576) it was held as follows: "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."

10. In this view of the matter, finding no merit in this bail petition which is dismissed. The above are the reasons for our short order dated 31.8.2018 which reads as follow: "For reasons to be recorded later, this petition is dismissed and leave is refused." MWA/S-35/SC Petition dismissed.