' IJAZ AHMAD CHAUDHRY, J.--- Through this petition under section 497(5), Cr.P.C. Aamir Mahmood petitioner seeks cancellation of to respondent No,1 by the learned Additional Sessions Judge, Lahore vide order dated 8-5-2009 in case F.I.R. No,14. Dated 6-1-2008 registered under section 302, P.P.C. At Police Station Gulberg, Lahore.
2. The brief facts narrated in the F.I.R. Are that on 3-1-2008 the complainant along with the other members of his family and his father Malik Mahmood Ahmad, real brothers Imran Mahmood and Faisal Mahmood had arrived at 63-F/1 Gulberg-III, Lahore in connection with the marriage of his real maternal cousin Ehtisham. During the intervening night of 4/5-1-2008 a Walima function was being held in the lawn, inside the house and the entire family was busy in the function. At about 12 mid-night his brother Imran Mahmood received a call on his cellular phone whereupon Imran Mahmood asked his cousin Shahzad Masood to lend him a car so that he could go to Main Market Gulberg; Shahzad Masood informed him that he himself had to go; after a short while a black coloured car pulled up in front of the main gate of the house in which two unknown boys were riding, who met with Asif Hassan son of Hassan Din and Faisal Mahmood (complainant's brother) and enquired about Imran Mahmood. In the meanwhile Imran Mahmood also arrived there and sat with the said two unknown boys in their car and went away with them; at about 3-00 a.m. An information was received that Imran Mahmood had been fired at by the accused and seriously wounded near House No,90-F/1 Gulberg-III, Lahore and that he was admitted to Services Hospital, Lahore; the complainant along with members of his family reached Services Hospital, where his brother Imran Mahmood had succumbed to his wounds; Imran Mahmood deceased had two mobile Phones bearing No,0300-6620071 and 03022820071 which were also found missing; the two unknown boys with whom Imran Mahmood had gone had killed him without any justification; the said boys could be identified by Asif Hassan and Faisal Mahmood, if they were brought before them. The motive was not known to the complainant.
3. The respondent moved an application for bail after arrest which was dismissed by the learned Additional Sessions Judge, Lahore on 2-6-2008 and then this Court vide order dated 9-10-2008 also dismissed the bail application bearing Criminal Miscellaneous. No,5071/B of 2008 filed by the respondent for grant of bail after arrest. Then after dismissal of the application from this Court another application was moved by respondent No,1 before the learned Additional Sessions Judge for grant of bail to him on medical ground. This application was filed on 26-2-2009 and was allowed vide order dated 8-5-2009. Hence this petition.
4. Learned counsel for the petitioner contends that when in the earlier application filed under section 497, Cr.P.C. The respondent did not urge the medical ground for grant of bail. It is also contended that about the medical ground there were the reports dated 6-3-2009 and 9-3-2009 on the basis of which a certificate was obtained from the Medical Doctor of Camp Jail Hospital, Lahore to the effect that the respondent was suffering from Hepatitis-C and remaining of the respondent in jail would be injurious to his life whereupon a Board was constituted which had given only report and without waiting for the final report, but bail was granted to respondent No,1 by the learned Additional Sessions Judge which being illegal and unlawful order may be set aside. Relies upon Mian Manzoor Ahmad Wattoo v. The State 2000 SCMR 107, Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Muhammad Aslam v. Muhammad Gul and others 1995 PCr.LJ 1733; Noor- ud-Din v. The State PLD 1995 Karachi 518 and Malik Muhammad Yousaf Ullah Khan v. The State and another PLD 1995 SC 58.
5. Learned counsel for the respondent on the other hand has opposed this petition on the ground that the respondent was suffering from Hepatitis-C and the remaining of the respondent in jail is injurious for his life as he needs a specific diet and due care otherwise his life would be in danger. It is further contended that no illegality has been committed by the learned Additional Sessions Judge and bail has been granted on valid ground after obtaining the medical report. It is also contended that the criteria for grant of bail and cancellation of bail is entirely different and it is not a fit case for cancellation of bail. Relies upon Farman Ali v. The State 2008 MLD 1121 and Abbas v.
The State 2009 SCMR 212 in support of his contentions.
6. I have heard the learned counsel for the parties and also perused the record. During the investigation sufficient material was collected against the respondent to connect him with the commission of the crime Asif Hassan and Faisal Mahmood got recorded their statements under section 161, Cr.P.C. After the incident that they had seen the respondent with the deceased immediately before the incident. The deceased was found in injured condition by Tariq Mahmood Head Constable posted at Service No,115 who came their on an official Pick-Up and informed Ambulance of Service 1122 in'which Ijaz Ahmad and Abdul Ghaffar FCs along with Imran Shahzad and Mubashir Anees were present, the deceased was alive and was in injured condition. He informed his whereabouts and also told about the relatives and name of the respondent who had caused him injuries with fire and all the above-said persons got recorded their statements under section 161, Cr.P.C. The empty was also recovered and subsequently weapon of offence got recovered by the respondent also matched with the empty. In such circumstances this Court already came to the conclusion that sufficient evidence had been A collected against the respondent to connect with the commission of the offence and no ground was made out for grant of bail to respondent No,
1. Subsequently the respondent filed application on medical ground on 26-2-2009 after about four months of the dismissal of the application by this Court. In the application it has been mentioned that he was suffering from serious illness and there was apprehension of danger to his life in jail. It was prayed that the report from jail doctor might be summoned and the petitioner be released on medical ground. Except for this nothing was mentioned in the application about the disease in which the respondent was suffering. Notice was issued and report was called for. Then the reports were obtained after filing of the application and issuance of notice to the State. The first report is dated 6-3-2009 after about one month of the filing of the application on medical ground and as per opinion of the jail doctor the respondent was suffering from Hepatitis-C. Report of the jail doctor is dated 12-3-2009 in which first time he has stated that the respondent was suffering from Hepatitis-C and all possible treatment was being provided to him. He was also examined by the Consultant Medical Specialist of Services Lahore and he supported the respondent that his treatment inside jail was not available.
' It will be relevant to point out that all these reports were obtained after the filing of the application and the respondent had no previous history of suffering from said disease. A direction was issued to the Medical Superintendent Services Hospital to constitute a Board which was constituted consisting of four doctor of Services Hospital on 27-4-2009 and the respondent was summoned on 29-4-2009 at 10-00 a.m. For his examination. On 29-4-2009 the examination of the respondent was conducted by the board and it was opined that he was suffering from Hepatitis-C. However, the Medical Board also advised second test. Interim report was sent to the Court and on the basis of the said report bail has been granted on medical ground without obtaining the final opinion of the Medical Board whether treatment should be given to the respondent in jail and whether remaining of the respondent in jail was injurious to his life. Moreover, the report dated 29-5-2009 of the Medical Superintendent shows that the respondent was not produced before the Board except for his production on 29-4-2009 and dates were fixed by the Board for examination of the respondent even after the release of the respondent on 15-5-2009 but he never preferred to appear before the Board on 15-5-2009, 16-5-2009, 19-5-2009 and 23;5-2009. So the respondent himself did not appear before the Board and failed to cooperate in the matter of the final report which was to be submitted by the Board, but the learned Additional Sessions Judge haphazardly granted bail to the respondent merely on the ground that the respondent was suffering from Hepatitis-C.
7. Learned counsel for the respondent had only relied upon the judgment of the single Bench of Peshawar High Court reported in 2008 MLD 1121 wherein bail was granted on the ground of sickness of Hepatitis-C, but the said case was not binding and is not applicable to the facts and circumstances of the present case. In the other authority relied upon by the learned counsel for the respondent reported in 2000 SCMR 212, after calling report from the Medical Board the bail was allowed by the Supreme Court of Pakistan but the case is also not applicable in the present case as the final report was given by the Board. On the other hand the case-law cited by the learned counsel for the petitioner is fully applicable to the facts and circumstances of the present case. The ratio of all the authorities is that an accused who does not deserve the bail on merits can be granted bail only on medical ground when it is established that the condition of the accused is serious and remaining of the accused in jail will be injurious to his life. In the present case no such report is available on the record. The only report of Medical Officer of jail is available which seems to have been procured as the said report only disclosed that the respondent was being treated but the respondent never mentioned his ailment Hepatitis-C in the application and only placed on record the reports dated 6-3-2009 and 9-3-3009 which were obtained after filing of the application, which shows that the respondent had no previous history of ailment. The interim report of the Medical Board only to the extent that the respondent was suffering from Hepatitis-C was not sufficient for grant of bail to the respondent without obtaining the final opinion about the ailment that whether it was not curable in jail and remaining of the respondent in jail was injurious to his life. The respondent himself did not opt to appear before the Board on the dates fixed by it subsequently when he was bailed out, which shows that, he was not interested in the further examination. The learned Additional Sessions Judge had taken the matter lightly and granted bail to such an accused person who had no chequered history of any ailment, but on the other hand the respondent was involved in a serious case. Even otherwise it has been argued by the learned counsel for the petitioner that after release on bail, the respondent has not made any co-operation with the Court for conclusion of the trial and started using delaying tactics and the trial could not be completed in spite of the fact that the witnesses had been appearing before the Court. The case reported as 2000 SCMR 107 is also not applicable as the bail on medical ground had been granted to Mian Manzoor Ahmad Wattoo by this Court, who had a previous history and was a.
Known case of Ischaemic Heart Disease, for which he had undergone Angioplasty and Atherectomy in 1993 and 1994 respectively. He had also regular medical check ups for his aliment.
He also suffered from cervical spondeylosis which was confirmed on M.R.I. Scan and the Board also confirmed that he was seriously ill and his remaining in jail would be injurious to his .Lealth. In such facts and circumstances the august Supreme Court did not interfere in the bail granting order on the medical ground.
8. In Muhammad Arshad v. The State 1997 SCMR 1275 it has been held by the Supreme Court of Pakistan that the bail on medical ground could not be granted to an accused who suffered from heart ailment, diabetes etc. But are leading normal life, though on medicines. The stress and strain as argued were not unknown in the present day life and bail was refused to the accused. The criteria for grant of bail on medical ground has not been followed by the learned Additional Sessions Judge. There was no definite opinion of the Board that the remaining of the respondent in jail was hazardous to his life and that the treatment which he needed for ailment could not be provided within the jail premises. I am fortified by the judgment reported in Muhammad Yousafullah Khan v. The State PLD 1995 SC 58 the relevant portion is reproduced as under:--- "From the above discussed position it is clear to us that the bail on medical ground can be granted under section 497, Cr.P.C. If the Court reaches the conclusion on the basis of medical report that the ailment with which the accused is suffering is such that cannot be properly treated while in custody in jail. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be a ground either to refuse or grant the bail on medical ground. 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."
From the above discussion I find that it is not a fit case for grant of bail to the respondent on medical ground. Hence this application is accepted and the to respondent No,1 by the learned Additional Sessions Judge is cancelled. The respondent should be committed to custody. However, the jail authorities are directed to ensure that respondent No,1 is provided all the medicines and proper treatment is given to him in the jail. The learned trial Court is also directed to conclude the trial within three months from the receipt of this order with an intimation to this Court about the compliance of the direction issued by this Court.