2010 PLP 605 (SCMR)

RAHMAT HUSSAIN JAFFERI, J.

The petitioner Kazi Talmiz alias Tani, the complainant of Crime No.18 of 2004 of Police Station Baldia, District Hyderabad registered under sections 302/324, P.P.C., has filed the petition to challenge the order of the High Court of Sindh, Circuit Court Hyderabad dated 25-5-2007, by which the learned Single Judge granted bail to respondent No.1 (hereinafter referred to as `the respondent') on medical ground. On merits the bail application of the respondent was dismissed. On 10-8-2007, this Court ordered for constitution of Medical Board. The said order reads as under:

"After hearing learned counsel for the parties and have gone through the order of the High Court as well as the report of Medical Board on the basis of which the respondent was allowed concession of bail, we have not been able to understand that how can a heart patient take risk of delay of even a single day to have the treatment suggested to him at such an advanced stage of disease whereas the respondent, for a considerable period, has not acted upon the' advice of the Medical Board. Be that as it may, we in the light of peculiar facts and circumstances of the case being not in a position to form a definite opinion regarding sufficiency of material to refuse or allow the bail on medical ground, deem it proper to direct the respondent for his medical examination from Armed Forces Institute of Cardiology (AFIC), Rawalpindi. The competent authority in the AFIC shall arrange the medical examination of respondent by a team of doctors at his own expenses on a date to be fixed at the convenience of concerned authority and report shall be submitted to the Registrar of this Court within a fortnight. The case shall be re-listed on receipt of the report."

2. In pursuance of said order, the Medical Board was constituted which submitted its preliminary report dated 25-11-2008. A relevant portion of the report is as under:

"Detailed history of his illness was taken and physical examination of patient was carried out. All necessary medical tests were also carried out. Board also reviewed previous medical record provided by the Court. Board observed that he was having minimal chest discomfort and palpitation on mild exertion, particularly on climbing stairs. On Examination:

He is a middle aged man, well oriented in time, space and person. Pulse: 50/pm, regular. BP:110/70 mm of Hg. Normal Heart sounds and clear chest. His cardiovascular system was stable and well-compensated to clinical examination." A perusal of such tests reports mentioned in the report of the Board shows that all tests such as ECG, Echo, Medical perfusion adenosine thallium scan and 18 hours Holter monitoring reports were normal.

3. Learned counsel for the petitioner has stated that all tests were normal, therefore, the respondent is not entitled to remain on bail as he is a normal person and his ailment is not such where his detention will be detrimental to the health. Conversely, learned counsel for the respondent has argued that the disease is such where the respondent requires special attention and medical treatment; that the Board report is preliminary and no final report has been given, therefore, the final report may be called. The learned State counsel has adopted the arguments of learned counsel for the petitioner.

4. We have given due consideration to the arguments and have gone through the material available on record. 'We find that tests conducted on the advice of the Board show no abnormality and all the tests appear to be normal. The Board has deferred its final opinion for the reason that angiogram of 14-11-2006 was not available. For that reason the case has already lingered on. The opinion could be based on the test conducted on the advice of the Board which are normal. The Board has already expressed its observation which is mentioned above, hence there appears no reason to further delay the matter. The respondent has overcome whatever the problem was suffered by him when the bail application was granted, therefore, there is no justification for further allowing the respondent to remain on bail.

5. Consequently, the impugned order is set aside. The respondent is directed to surrender before the trial Court immediately. Resultantly, the petition is converted into appeal and allowed. M.H./T-16/SC Bail cancelled.