1. G. SAFDAR SHAH, J.-In consequence of a sudden and unpremeditated fight on the night of 29th August, 1976, which was the month of Ramazan, two persons, namely, Ghulam Rafique and Jahanzeb, belonging to the complainant party got murdered and three others received gunshot injuries at the hands of the petitioner and his four compatriots namely Mohsin Khan, Ismail, Usman and Bakhtiar. The petitioner and his compatriots were accordingly arrested and later tried by the Additional Sessions Judge, Peshawar, who, vide his judgment dated 21-11-78, found all of them guilty and convicted them and in so far as the petitioner is concerned, sentenced him to imprisonment for life and a fine of Rs. 3,000 or in default to- further R. I. For one year. After the pronouncement of the said judgment, the petitioner, who until then was on bail, was taken in custody and lodged at the Central Jail, Peshawar to undergo the sentence of imprisonment for life.
2. Being aggrieved of his conviction, the petitioner filed an appeal in the Peshawar High Court which has been admitted to regular hearing. Along--with his appeal, he filed an application under section 426 (1), Cr. P. C. Praying for the- suspension of the execution of the sentence awarded to him by the learned trial Judge, as well as for his release on bail on the ground that he was an old man of more than 70 years of age, suffering from duodenal ulcer, and eye trouble owing to chronic trachoma. Upon the said application, the learned Judges of the Division. Bench directed that a Medical Board should examine the petitioner, and submit its report. In compliance with the said Order, a Medical Board, consisting of three professors and the-Administrator of Lady Reading Hospital, Peshawar, examined the petitioner, and; Consequently, submitted its report to the High Court which is to the following effect:- "(1) The patient is suffering from duodenal ulcer. The diagnosis being based on the report of the Radiologist.
(2) He has got old Trachoma with trichiasis and Biliteral Corneal Opacities.
(3) His investigations have been completed and is no longer required for further investigations.
3. Patient has been given the prescription for further treatment."
4. On 5-2-79 the learned Judge of the High Court took up the petition for disposal on the basis of the- said Report received from the Medical Board. It was contended by the learned counsel for the petitioner that in view of the said finding recorded by the Medical Board, the petitioner was a sick and infirm person within the meaning of second proviso to section 497, Cr. P. C. And hence entitled to be released on bail. In this behalf, reliance was placed by him on a judgment of this Court in Maqsood v. A.I Muhammad and another (1971S C M R 657) but the learned Judges were evidently not impressed and dismissed the said application thus: "It is true that the petitioner was on bail during the trial and that the bail was affirmed right upto the Supreme Court but it is not the case of the petitioner that he had been also through a Board of the type and competency which has given the crucial opinion in this case. Here, two Associate professors and a professor, along with Administrator of the Lady Reading Hospital are involved.
5. We do not dispute the proposition that the considerations on which a bail is allowed by an Appellate Court under section 426, Cr. P. C. Are almost the same as have been laid down under section 497, Cr. P. C. But it is our considered opinion that onus to establish sickness or infirmity in the case of person convicted should be heavier than the one which is in the case of persons who are under trial."
6. Being dissatisfied, the petitioner has come up to this Court praying for leave to appeal against the said order of the High Court.
7. On 7-3-1979 when the petition came up for hearing, it was directed that notice should go to the Advocate-General, N.-W. F. P. For today, and in response to the said notice served on him, he' is present, alongwith Mr. Zahooral Haq, the learned counsel for the petitioner. After having heard both of them we convert this petition in appeal and proceed to dispose of the same accordingly.
8. Now it is not disputed that during the trial, the age of the petitioner was recorded as 70 years; that both parties are closely related to each other; that the fight between them had taken place on the spur of the moment, and without premeditation and that the petitioner had remained on bail throughout his trial and even this Court .Had declined to cancel his bail. Upon these facts as well as the Report of the Medical Board, it was contended on behalf of the petitioner, in the High Court that his case was fully covered by the ratio of the judgment of this Court in the case of Maqsood v: A.I Muhammad but the learned Judges distinguished the said judgment mainly on three grounds: (1) that the convict in that case was 75 years old, suffering from arthritis, urinary infection, Hypertension and swollen and painful joints, (2) that he had not been examined by a Board of the type and competency which had examined the petitioner in this case; and (3) that onus to establish sickness or infirmity in the case of a person convicted should be, heavier than a person under trial.
9. With respect, the learned Judges do not seem to have correctly under, stood the ratio in Maqsood's case which, when paraphrazed, is to the following effect: "The complainant has now come up to this Court for special leave to appeal and it is contended on his behalf that under section 426, Cr. P. C. No bail can be granted. This is clearly incorrect for subsection (1) of section 426, Cr. P. C. Itself states that pending an appeal by a convicted person, the appellate Court may order the suspension of the sentence and also if he is in confinement, order his release on bail or on his own bond .... Under the proviso to subsection (1) to section 497, a sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. It is now well settled that where a statute itself lays down certain principles for doing some acts, they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court."
10. Now apart from section 426 (1), Cr. P. C. Which empowers an appellate Court, for reasons to be recorded by it in writing, to order the suspension of the execution of any sentence of imprisonment awarded to a convict, the words underlined by us from Maqsood's judgment would seem to furnish a clear answer to the view expressed by the learned Judges that the quantum of sickness or infirmity in the case of a convicted persons should be heavier than in the case of an under trial person. On the contrary, once a person is found to be sick and infirm then his case would be covered by the second proviso to section 497, Cr. P. C. And would not be open to a Court to quantify his sickness and infirmity, It is implicit in the finding recorded by' the High Court that the petitioner was indeed a sick and infirm person but the learned Judges proceeded to distinguish his case from the convict in Maqsood's case, not only on fragile reasoning but on their own opinion as `Medical Experts' which course, with respect, was not open to them. Furthermore, it was not dispute that the petitioner was at least 70 years age and was suffering from duodenal ulcer and eye trouble involving old trachoma. In these circumstances, the petitioner has indeed made out a case for the grant of bail within the ratio of Maqsood's case, more so when throughout his trial he had remained on, bail without there being any complaint against him that he has allowed his bail.
11. Upon the facts of this case, therefore, in which the parties are closely related to each other and the occurrence bad taken place at the spur of the moment and without any premeditation whatever, we allow this appeal, consequently, suspend the execution of the sentence of imprisonment for life awarded to the appellant, and direct that he shall 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 learned Sessions Judge, Peshawar.