1998 PLP 690 (MLD)

MIAN MUHAMMAD AJMAL, J.

This application came up for hearing before a learned Division Bench of this Court on 27-1-1997 where the Additional Advocate-General in view of the report of the Medical Board, undertook that the convict petitioner would be treated in any of the Hospitals at Peshawar by the doctors of his choice. Accordingly it was directed that the petitioner be provided all the facilities for his treatment in any of the hospitals at Peshawar of his choice. It was further directed that the appeal be fixed for final hearing within thirty days and if the hearing of the appeal could not be concluded within the said period then his application should be considered. The petitioner's counsel also undertook to provide four Print Books of the record of the case within four days for hearing of the case.

2. Learned counsel for the petitioner submitted that he has honoured his undertaking by providing four Print Books of the record to the office whereas the other side failed to comply with the directions of this Court. They have neither provided any medical facility to the petitioner nor was the petitioner's father allowed to supply the necessary medicines to the petitioner. The office also failed to fix the appeal in the period as ordered by the learned Division Bench.

3. Learned Assistant Advocate-General appearing for the State could not advance any justification for non-compliance of the directions of this Court for non-providing medical .facilities and treatment to the petitioner.

4. The findings and opinion of the Special Medical Board reads as under:-- "Mr. Zia Akhtar Malik s/o Akhtar Hussain Malik is a known case of epilepsy and personality disorder (paranoid type). His epileptic fits are not well controlled at present. He needs special care for epilepsy and his psychiatric illness. At present, these facilities are not available in Central Jail, Peshawar. Due to lack of these facilities his condition is deteriorating day by day in such milieu." It is manifest from the above report that the ailment of the petitioner cannot be treated in jail and due to non-treatment his condition is deteriorating day by day.

5. After hearing the learned counsel for the parties and going though the record of the case, we find that despite the directions of this Court that the petitioner be provided medical facilities for his treatment in any of the hospitals at Peshawar, the State failed to fulfil its obligations in over four months period which resulted deterioration in the condition of the petitioner as according to medical report non-treatment would cause deterioration day by day. The august Supreme Court of Pakistan while examining section 426, Cr.P.C. in case of Abdul Ghaffar v. Anwarul Hassan etc. (1978 SCMR 149) observed as under:-- "There is no ambiguity about the section. The Appellate Court's discretion to grant bail is not fettered or restricted by reference either to the conviction or to the sentence passed against an appellant by the trial Court. But like all discretions vested in the Courts, the discretion in this section has to be exercised judicially. However, learned counsel feebly submitted that a contrary view was taken by this Court in Maqsood v. Ali Muhammad and another (1971 SCMR 657). The judgment cited is distinguishable on the facts and further the Court expressly observed that the question of suspending a sentence under section 426 was within the discretion of the Appellate Court, therefore, it refused to interfere with the discretion exercised in the case by the High Court." Another case reported as Banaras v. The State in the same book at page 191, the appellant of that case i.e. Banaras was found suffering from idiopathic epilepsy by the doctors and recommended treatment in the hospital. The Supreme Court while allowing bail to him under proviso to section 497, Cr.P.C. held idiopathic epilepsy to be a serious disease observing as under:-- "After hearing the learned counsel for the parties, we are of the opinion that the appellant is suffering from a serious disease and he cannot have treatment of his choice in the Jail Hospital. Besides fits occur in the disease from which the appellant is suffering, and it will be difficult for the Jail Authorities to look after him. As the appellant is a sick person, we will direct that he may be released on bail in the sum of Rs. 20,000 (rupees twenty thousand only) with one surety in the like amount to the satisfaction of the trial Court." As per report of the Special Medical Board, the petitioner is suffering from epilepsy and personality disorder (paranoid type) and he cannot be treated in jail due to lack of facilities. In view of the above, there is sufficient cause under section

426. Cr.P.C. to suspend the sentence and admit the petitioner to bail. Accordingly, this application is allowed, the sentence is suspended and the petitioner is granted bail provided he furnishes bail bond in the sum of Rs. 1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court. A.A./2229/P Bail granted.