' The learned two Courts below have refused bail to the accused-petitioner in case F.I.R. No,623, dated 4-12-2003, under sections 302/324/34, P.P.C., and now through the present petition, he seeks bail from this Court.
2. According to the F.I.R., on 4-12-2003 at 1530 hours, complainant Shah Nawaz, while in injured condition, reported to Muhammad Javed, S.-I. In Emergency Ward of Ayub Teaching Hospital that on the day of occurrence, he along with P. Ws. Ashfaque, Naveed, Muhammad Riaz and Amjad were going in order to attend the funeral ceremony of his nephew Wajid. When they reached near the house of his nephew, the accused-petitioner and his co-accused appeared. They were armed with pistols and started firing at the complainant party. With the fire-shot of co-accused Rashid, the complainant was hit, who received injury on the upper portion of his leg while with the fire-shot of accused-petitioner, P.W. Ashfaque received injury. Similarly, with the fire-shot of co-accused Ayaz Amjad received injury and died on the spot and with the fire-shot of co-accused Ayub, P.W.
Naveed received the injury.
3. I have heard Syed Shabbir Hussain Shah, Advocate for the petitioner, Qazi Abdul Jalil, Advocate for the State and Mr. Mehdi Zaman Khan, Advocate for the complainant and have also perused the record.
4. In support of the bail petition, the learned counsel for the petitioner contended that as in the F.I.R., the accused-petitioner is charged only for firing at P.W. Ashfaque with no repetition, therefore, his case is arguable for the purpose of bail. However, when it was pointed out to him that in this case three persons have received injuries with fire-arms and the fourth, as a result of fire-shot had died, the accused-petitioner cannot escape vicarious liability under section 34, P.P.C. For the murder of the deceased besides effectively firing at P.W. Ashfaque, he contended that the accused- petitioner, as per report of the Medical Board, is a patient of diabetes, hypertension and coronary artery disease and under the First Proviso to subsection (1) of section 497, Cr.P.C. He is entitled to the concession of bail. In support of his this argument, he placed reliance on 2004 SCM R 15. The learned counsel for the accused-petitioner also took the plea of alibi for the grant of bail.
5. On the other hand, the learned counsel for respondent No,2 (complainant) supported by the learned State Counsel, contended that no past history of coronary artery-disease has been placed on file and such like disease, diabetes and hypertension are diseases of such nature of which many persons in the society are suffering but they are leading normal life and on account of the same, bail cannot be allowed to the accused-petitioner. In support of his argument, he placed reliance on (1) 2000 PCr.LJ 20 and 2000 M LD 343, (2) 1996 PCr.LJ 763. He further contended that bail in non-bailable offences on the ground of sickness can only be granted, when the sickness is of such a nature which cannot be properly treated within the jail premises and for which some specialized treatment would be required otherwise the continuous detention of the accused in jail would likely affect his capacity or would be hazardous to his life. In support of his this argument, he placed reliance on 2000 SCM R 107.
6. The arguments of the learned counsel for the respondents are not without force. In the case reported in 2004 SCM R 15, relied upon by the learned counsel for the petitioner, the accused was suffering from severe heart disease and according to the medical report, he required bye-pass and in that context, the Honourable Supreme Court of Pakistan allowed bail to him but in the cases reported in NLR 1999 Cr. 665 and 671 the Honourable Lahore High Court held that the condition of the accused was not such that he be released on bail on medical grounds as there were many persons in society who were suffering from heart ailment, diabetes, etc. But were leading normal life though on medicines and bails were refused to the accused. The case reported in 1998 PCrLJ 763 was a case of angina and hypertension and this Court refused bail to the accused on the ground of such diseases.
7. The correct principle of law for the grant of bail on the ground of illness has been laid down by the Honourable Supreme Court of Pakistan in the case reported in 2000 SCM R 107, wherein it was held that:-- "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."
8. In the present case, the report of the Medical Board is "although he is stable at the moment as far as his cardiac status is concerned but his blood pressure and diabetic status is unsatisfactory" with no opinion that the latter two diseases cannot be treated within the jail premises or the former disease would require specialized treatment.
' I am, therefore, of the firm view that on the basis of his diseases the accused-petitioner cannot be allowed the concession of bail.
9. As far as the plea of alibi for the grant of bail is concerned, the learned counsel for the accused- petitioner referred to affidavits, all dated 28-4-2004, of six persons, wherein they have deposed that the accused-petitioner, is innocent but the occurrence in the present case has `taken place on 4-12-2003 and these affidavits have been executed on 28-4-2004 or in other words after about six months of the occurrence which cannot be considered at this stage and the accused-petitioner has yet to prove his innocence at the trial.
10. For the foregoing reasons, this petition fails and is hereby rejected.
Petition rejected.