1. ' MUHAMMAD SADIQ LEGHARI, J.-- Applicant Abdullah Khan together with his sons and others is facing trial for murder of two persons and injuries to the third one It will be proper to mention here that this incident which happened on 17-6-2003 was one of the series of such incidents wherein either the people of complainant's side or the persons of accused side were killed and/or injured.
2. ' After dismissal of his bail plea on merits the applicant filed application for grant of bail on medical ground but that too was dismissed by the learned trial Court on 29-10-2003. Another application repeated on the health ground was dismissed by the trial Court on 13-5-2004. Thereafter present application has been filed before this Court.
3. ' As many as five medical reports are on the record. First, the applicant was examined by the Chief Medical Officer Central Prison, Karachi on 26-4-2004 who opined as under:-- "Comments. Above named accused is an old aged suffering from Asthma, Diminished vision, Difficulty in walk and sitting due to gun shot injury (old fracture in both legs) without support he could not walk and even cannot go in toilet without another person. He is getting treatment of asthma."
4. ' Then he was examined by Dr. Mehtab Ahmed, Medical Officer Orthopedic-II, Civil Hospital, Karachi at the request of Medical Officer Central Prison, Karachi who recorded the conclusions as under:-- ' That accused Abdullah Khan son of Adam Khan aged 80 years had H/0 Gun Shot injury in 2000. He had injury to his right leg and left thigh. He was operated upon at some private hospital.
5. ' Now no pain in both knees since 2-3 weeks on and off.
6. ' On examination patient 80 years of age walking with stick. Slight tendencies along the joint line bilaterally.
7. ' Movement slightly painful. Distul N/V status stable.
8. ' ADVICE ' X-ray knee R & Fibia A/P and ankle joints. X-ray femur L Knee and A/P in lat hip joints.
9. ' TYVISIOTHERAPY: ' Cap Indosid 1+1 Tab: M/Vit 1+1+1 ' Thereafter he was examined by the Special Medical Board on 25-8-2004 and following comments/opinion were communicated by Acting Chief Medical Officer, Central Prison Hospital, Karachi on 11-9-2004:--- "Above named accused appeared before the Special Medical Board held at Sindh Services Hospital, Karachi on 25-8-2004, as per report of Special Medical Board Rt. Pseudo phalka, left eye Aphakia, Fundus is ok. No treatment is required. He also go pain the legs. He was on suptonxlin treatment. His Health is stable. No acute emergency".
10. ' Thereafter the Special Medical Board again examined the applicant, under the directions of this Court on 9-12-2004 and recorded their opinion as under:-- "The opinion of the Board ' Accused Abdullah Khan is suffering from multiple ailments. He is suffering from:---
(1) Hypertension for which he is on prescribed treatment.
(2) Eye contracts were operated and further eye treatment is not required.
(3) He was operated in orthopedic department for leg fractures, which are still painful and cannot perform routine work.
11. ' Therefore, it is advised to continue all prescribed treatment and as he is an old person therefore, he needs rest."
12. ' As the members of Special Medical Board having examined the applicant on 9-12-2004 did not associate Dr. Mehtab Ahmed, Senior Medical Officer, Orthopedic-II, Civil Hospital, Karachi the Court directed them to examine the applicant and record their opinion associating with them Dr. Mehtab Ahmed. In the result of the examination following report was received: "Opinion of Dr. Mehtab Ahmed, Senior Medical Officer:--- ' The documents sent to the Court by the Jail Medical Authority is type written and is not signed and verified by me.
13. ' In my earlier examination I examined accused Abdullah Khan son of Adam Khan on 12-5-2004 in jail and I have clearly written that patient is 80 years of age, walking with stick (copy attached).
14. ' With the reference to Court legal documents issued by the Assistant Registrar (Criminal) of the High Court of Sindh at Karachi Criminal Bail Application No,559 of 2004 accused Abdullah Khan son of Adam Khan is examined again by me in office of the Medical Superintendent Services Hospital and Civil Surgeon, Karachi on 30-12-2004 and found that the patient is an old man of about 80 years of age walking with stick. He is suffering from Osteo-Arthritis of both knees. He is advised physiotherapy and NSAIDS.
15. ' The opinion of the Board is in conformity with the aforesaid contents."
16. ' Mr. Muhammad Ashraf Kazi learned Advocate for the applicant contended that the fact that the applicant is of 80 years by itself is sufficient to confirm his infirmity. He further contended that not only the applicant is of extreme old age but he is suffering from Osteo-Arthritis of both knees and is passing painful life in the jail where the required treatment is not available. According to him the applicant needs ,regular physiotherapy. Moreover, he is not able even to move to washioom without assistance of another person. Mr. Kazi has referred to an order passed by Division Bench of this Court of which I was member. It is an order, dated 15-9-2003 in Shamsul Haque Siddiqui v. The State Criminal Bail No,893 of 2003).
17. ' Mr. Shandat Awan, learned Advocate for the complainant and Mr. Ghulam Rasool Mangi, Advocate for the State have opposed bail plea strongly. According to them if all the medical reports in respect of the physical condition and health of the applicant are looked together it becomes clear that the condition of the applicant has not been declared unstable or painful and miserable.
18. According to them the opinions and comments from the doctors show that the health of applicant is stable and he walks with stick and feels slight pain during movement which does not warrant the grant of bail on health ground.
19. ' Although the medical reports/opinions show the applicant to be about 80 years but proviso (1) to section 497, Cr.P.C. Does not recognize the old age as a ground for bail. It recognizes the sickness and infirmity as grounds for grant of bail. The settled position of law is that a sickness which is acute one and is deteriorating the health of UPT justices the grant of bail. In present case although the Chief Medical Officer, Central Prison, Karachi opined that the applicant was suffering from Asthma and his vision was also diminished besides problem in movement without assistance of another person but the opinion recorded by Dr. Mehtab Ahmed, Senior Medical Officer, Ortho-II, Civil Hospital, Karachi and the successive Special Medical Boards did not confirm the presence of Asthma nor did they concur with the opinion that the applicant could not walk and move to the washroom without another person. Their certificates show that the applicant was a case of hypertension for which he was on prescribed treatment and his eyes were operated and no further treatment was required. The certificates especially that of the Special Medical Board having examined the applicant on 25-8-2004 show his health to be stable and that he was not the case of emergency. The certificates further contain that the applicant walks with stick and is advised physiotherapy and ANAIDS. It is no where stated that the pain, which he complains of, is either severe or constant.
20. ' In none of the opinion recorded by the doctors or the Medical Boards it has been stated that the ailment which applicant is suffering from has reached the advanced stage and can deteriorate his health further on account of his confinement.
21. ' In view of the above the applicant has no case for bail on health ground. The order referred to by his learned counsel was a case where the accused had been suffering from a disease having reached the advanced stage and process of deformation of joints had started. Additionally he was inconstant pain. That precedent does not provide any assistance to the learned counsel.
22. ' During the course of arguments Mr. Kazi, learned Advocate for the applicant stated that more than two years have passed and the trial Court has not been able to examine a single witness. Mr. Shandat Awan, learned Advocate for the complainant informed that the witnesses had been attending regularly but the progress in trial is held up as the UTP were not being produced from jail.
23. According to him the non-production was also arranged by the accused. The trial Court is directed to take effective steps for securing the production of the prisoners and conclude the trial within four months. If the jail authorities do not produce the prisoners it shall not hesitate in taking action against them in accordance with law or report to this Court. The application is dismissed.