Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the order dated 9.2.2007 passed by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Misc. No. 1430-B of 2007 filed by Respondent No. 1 Syed Asim Hassan was accepted and he was granted bail on medical grounds in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of trial Court/Duty Judge.
2.Briefly, stated the facts giving rise to the filing of the instant petition are that on 18.2.2002 petitioner Sh. Muhammad Iqbal lodged FIR at Police Station Airport, Rawalpindi, wherein he alleged that on the same day at 10:10 a.m. his son Nasir Iqbal informed him from Safari Villas on telephone that respondent Syed Asim Shah, his co-accused Asif Shah and Waseem Shah had entered in the porch of his house duly armed and what he should do. Petitioner instructed him to opt in accordance with the circumstances and in the meanwhile he would reach .there. When petitioner reached in the house of Nasir Iqbal at Safari Villas, he came to know that Nasir Iqbal had become injured who had been brought, to General Hospital, Rawalpindi. During firing respondent Syed Asim Hussain and Waseem also sustained injuries who also had been shifted to hospital. The occurrence was narrated to him by the PWs Muhammad Javid and Sohail who witnessed the incident. It is pertinent to mention here that on the same day petitioner and his brother Dr. Irfan Iqbal allegedly in a hot chase fired at the respondent and his brother Waseem Shah while they were being treated in the District Headquarters Hospital, Rawalpindi to which Waseem Shah succumbed to the injuries upon which FIR No. 700 dated 18.12.2002 was registered under Sections 302/324/109 PPC read with Section 7 of the Anti Terrorism Act, 1997 at Police Station Gunj Mandi, Rawalpindi by the respondent's brother Syed Farrukh Hassan.
3. The motive as stated in the FIR was that two days prior to the incident respondent Syed Asim Shah had come to Dr. Irfan Iqbal, the son of petitioner and told him that on the screaming of his child, his wife . became disturbed upon which an exchange of hot words took place in between them.
4. Initially the case was registered under Sections 324/452/34 PPC but on the death of Nasir Iqbal, Section 302 PPC was added. Respondent remained absconder. Thereafter, he filed Criminal Misc.
No. 5360/B/2004 before the Lahore High Court for bail before arrest, which was dismissed on 28.9.2004. Thereafter respondent filed Criminal Petition No. 565-L of 2004 before this Court who was dismissed vide order dated 21.10.2004. As the respondent sustained bullet injury in the brain, therefore, he was admitted in the hospital. Later on, respondent moved application for bail after arrest before the learned Additional Sessions Judge, Rawalpindi, on merits as well as on medical grounds, which was dismissed, vide order dated 10.6.2006. The respondent then filed Cri. Misc. No. 1430-B of 2006 before the learned High Court for bail on medical grounds. On 10.01.2007 a Medical Board consisting of Medical Superintendent General Hospital; Lahore, Assistant Professor, Department of Neurosurgery and Dr. Nazir Ahmed, Professor & Head of Department of Neurosurgery, PGMI, Lahore General Hospital, Lahore was constituted on the directions of the learned High Court who after examining the respondent opined as under:-- It is submitted that the patient named Asim Hussain Shah son of Altaf Hussain Shah, a case of fire- arm injury to the brain admitted in this Unit on 9.9.2006. Patient is under treatment till to date.
Regarding the current clinical status, there is no remarkable improvement in his condition, comparing to the previous report, which was sent on 16.10.2006.
'Patient is still, disoriented and he is unable to convey himself and speak properly (dysphasic).
Patient has got weakness of (Rt) side of the body (paresis) and on clinical scale, he has got power of 2/5 of arm and 1/5 of the leg, with signs of upper motor neuron lesion. Patient has got severe spasticity of the effected side, for which he is dependent on his attendants for sitting and side changing. In spite of giving anticonvulsants, patient is suffering from repeated attacks of convulsions for which he has to continue the anticonvulsants drugs. For the last few days, patient is suffering from fever, which is moderate to high in intensity.
His X-Ray skull shows two bullets inside the brain with multiple metal pieces. The last C.T Scan brain shows atrophic changes to the brain. For his delay routines, patient is badly dependent for his caretakers like feeding, clothing urination and defecation.
Keeping in mind, the current clinical condition, patient would take a long time for improvement, or the condition would be static."
5. The learned High Court relying on the opinion given by the Medical Board constituted to examine the respondent, enlarged him on bail vide impugned order as stated above.
6. We have heard Sheikh Zamir Hussain, learned ASC for the petitioner, Dr. Babar Awan, learned ASC for Respondent No. 1 and Mst Yasmeen Sehgal, Deputy Prosecutor General and have gone through the record and the proceedings of the case in minute particulars.
7. Sheikh Zamir Hussain, learned ASC for the petitioner contended that the learned. High Court had fallen in error in granting bail to respondent on medical grounds for the reason that the respondent was declared as proclaimed offender; that he had applied for protective bail before arrest before learned Sessions Judge, Faisalabad, which was granted vide order dated 10.6.2004 till 21.6.2004. He further contended that one month thereafter he came to Lahore and applied for bail before arrest in Lahore. He further contended that during, the proceedings before the learned High Court, the complainant who is the father of the deceased was not summoned who was necessary party.
According to him failure to implead the petitioner as a party has resulted in grave miscarriage of justice for the reasons that the entire facts were not brought into the notice of the learned High Court while granting bail to the respondent. According to him on 18.12.2002 at 11.00 a.m.-Dr. Irfan Khilji, Medical Officer, DHQ Hospital, Rawalpindi, examined respondent and observed that there was no fire-arm injury on his head but the same doctor again examined him on the same day at 1.05 p.m. and found three injuries on the persons of respondent but none of them was on the head.. He contended that the respondent was declared proclaimed offender and challan against him was submitted under Section 512 Cr.P.C. According to him even the learned, High Court while granting bail before arrest on 23.7.2004 ordered the respondent to join the investigation and appear before the Court on each and every date of hearing but the respondent had neither joined the investigation nor had complied with the direction regarding his appearance before the Court on each and every date of hearing but the respondent remained absconder. In support of his contention, learned counsel placed reliance on the case of Faqirullah v. Khalil-uz-Zaman and others (1999 SCM R 2203)
8. On the other hand, Dr. Babar Awan, learned ASC for the respondent controverted the above contentions and contended that respondent had been granted bail because he was suffering from such diseases, treatment of which was not possible in Jail, therefore, his detention was hazardous to his life. According to him in the instant case respondent Syed Asim Hassan and Waseem Hassan Shah also sustained serious bullet injuries and as a result of which respondent is completely disoriented paralysed, incapacitated and suffer through disability and infirmity as he can neither move nor speak, whereas his brother succumbed to the injuries. He further contended that the case of the respondent is covered by the first proviso to Section 497(1) Cr.P.C. andthere is nothing on record to connect the respondent with the alleged commission of the offence. According to him while the respondent and his brother were being given treatment in the District Headquarter Hospital on 18.12.2002 at about 1.45 p.m. in the Emergency Ward of the Hospital, petitioner Sh.
Muhammad Iqbal and his brother Dr. Irfan Iqbal went inside the operation theatre of the Hospital and Dr. Irfan Iqbal fired at both of them, resulting in the death of Waseem Hassan Shah whereas respondent Syed Asim Hassan sustained serious injuries. He further contended that learned High Court having gone through the medical report, which has been produced by a Medical Board granted bail to the respondent in accordance with the principles for grant of bail well in accordance with law. Learned counsel in support of his contentions also placed on record medical reports of various hospitals of the respondent. In support of his contention he also relied upon the case of Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others (2006 SCM R 1225).
9. Before dilating upon the legal aspect of the matter, it would he appropriate to refer the medical history of the respondent.
In this matter first incident took place on 18.2.2002 at 10.10 a.m. in which- Nasir Iqbal as well as respondent Syed Asim Hassan and his brother Waseem Shah sustained injuries. The injured persons were shifted to the General Hospital, Rawalpindi. Initially FIR No. 481 dated 18.12.2002 was registered against the respondent under Sections 452/324/34 PPC but on the death of injured Nasir Iqbal Section 302 was added at Police Station Airport, Rawalpindi on the complaint of Sh.
Muhammad Iqbal father of the deceased. The second incident also took place on the same day when brother of the petitioner Dr. Irfan Iqbal allegedly in a hot chase fired at the respondent and his brother Waseem Shah while they were being treated at about 1.45 p.m. in the District Headquarters Hospital, Rawalpindi. Resultantly Waseem Shah succumbed to the injuries whereas respondent also sustained injuries upon which FIR No. 700 dated 18.2.2002 was registered against Dr. Irfan Iqbal under Sections 302/324/109 PPC read with Section 7 of the Anti-Terrorism Act, 1997 at Police Station Gunj Mandi, Rawalpindi on the statement of respondent's brother Syed Farrukh Hassan. On 29.12.2002 respondent Asim Hassan Gilani was shifted to Shifa International Hospital.
The doctor examined the respondent and found .focal scalp injury to left parietal region of the respondent. According to the doctor approximately 2x1 cm opaque metallic bullet fragment in left parietal scalp was observed. Thereafter on 5.1.2003 the respondent was shifted to Combined Military Hospital, Rawalpindi where he was operated and doctor found five bullet injuries On his person. On 18.2.2003 the respondent was shifted to DHQ Hospital, Faisalabad. Vide order dated 22.3.2003 of Special Judge Anti-Terrorism, Special Court No. 11, Rawalpindi, a Medical Board consisting of Medical Superintendent, Prof. Dr. Maj (R) Abdul Rashid, Head of Surgical Unit-IV and Dr. Javed Iqbal, , Assistant Prof. Of Surgery, DHQ Hospital, Faisalabad on 2.4.2003 at 10.00 a.m. in the DHQ Hospital, Faisalabad, for medical examination of the respondent who was admitted at that time in a Private Ward. The Board found the following injuries:--
1. Bullet injury head, resulting in Rt. Heniplegia & aphasia.
2. Bullet injury Rt. Chest resulting in 8th rib fracture & Rt haemothorax, chest intubation was done.
3. Bullet injury abdomen resulting in gut laceration and haematoma liver and kidney. Gut primary repair was done and liver was repaired.
4. Bullet injury Lt. Elbow resulting in fracture of upper end of radius. Conservative management was done.
5. Through & through injury Rt. Ankle & comminuted fracture Rt. Calcaneum Back slab applied.
The respondent was sent to Thoracic Surgeon, Lahore to manage the chronic Empyema thoracic where he was examined on 28.2.2003 and opined that the respondent is still suffering from aphasia & disarthria (difficult, slurred and incomprehensive speech) due to cerebral injury. A foreign body (bullet) is still lying in the anterior cranial fossa, which need Neurosurgical evaluation.
10.Due to the critical condition of the respondent, he was shifted to General Hospital, Lahore. On the direction of learned High Court, a medical board consisting of Medical Superintendent General Hospital, Lahore, Assistant Professor, Department of Neurosurgery and Dr. Nazir Ahmed Professor and Head of Department of Neurosurgery, PGMI/Lahore General Hospital, Lahore was constituted on 10.1.2007 who examined the respondent and gave its opinion as stated hereinabove. The respondent is physically handicapped. The medical report is also indicative of the ailment, which appears to be somewhat serious, and can be fatal to his life. According to the Medical Board the respondent is still disoriented and he is unable to convey himself and speak properly (dysphasic).
11.This Court in the case of Peer Mukaram-ul-Haq referred supra, suspended the sentence of petitioner therein and released, him on bail on medical ground taking into consideration that medical opinion furnished by Medical Specialist had recommended shifting of petitioner to some care health facility where a team of Specialists in diabetes, Neuro-physicians and Cardiologist were available. Petitioner, during the recent past, was hospitalised and remained under treatment in the Department of Urology. The main consideration which weighed with the Court was that medical, facilities such like up-to-date operation skill and know-how Were not available in the District Headquarter Hospitals which aspect of the matter could not be ignored. The case of Faqirullah referred supra by the learned counsel for the petitioner in fact is a criminal review petition and is not relevant at all with the case in hand.
12. Accordingly, we are of the considered opinion that the learned High Court rightly granted bail to the respondent on medical ground and no case for cancellation of bail is made out. The criminal petition being devoid of force is dismissed and leave to appeal refused.