' KHAWAJA MUHAMMAD SHARIF, C.J.---Earlier unfortunately, this matter came up for hearing before my two learned brothers, who had refused to hear this case for some personal reasons. As I was available at this Bench, so I thought it proper to hear this matter myself. Yesterday, it came up for hearing before me and during the course of arguments, learned counsel for the petitioner submitted that petitioner is a patient of heart disease and sciatica pain so I ordered Chief Executive PIMS Hospital, Islamabad to constitute a Board of doctors headed by heart Specialist and two physicians. It was also directed that petitioner should be produced from jail and report should be submitted before this Court today. I also directed that petitioner should also be produced before this Court.
2. Facts of the case are that a case under sections 324/452/109/34 P.P.C. Was registered in P.S. R.A.
Bazar, Rwalpindi on 14-4-2007 at 9:05 a.m. About an occurrence, which took place on the same day at 7:00 a.m. On the statement of Javed Iqbal complainant/injured. According to him, when he was present in his house petitioner along with other co-accused while armed with pistol knocked the door of the house and he opened the door and asked Muhammad Afzal Khan Niazi petitioner what was the matter, thereafter, Muhammad Afzal Khan Niazi petitioner, who was having pistol in his hand, started firing on the complainant, two bullets hit on the thigh of the complainant, he ran towards his house but all the accused followed him, then petitioner fired more shots, which hit on the right arm, foot and thigh of the complainant, who fell down and in the meanwhile, after hearing the noise of fire shots, son of the complainant Ali Raza and wife Mst. Mumtaz and Mohaladar came there. Complainant was taken to C.M.H. Hospital.
' Motive behind the occurrence was that there was some dispute regarding sale and purchase of the house, which belongs to maternal aunt of the complainant.
3. Initially, petitioner applied for bail before arrest before the learned Addl. Sessions Judge where I.O. Made a statement that petitioner has been found innocent so the said bail petition was withdrawn on 5-6-2007 by the petitioner thereafter the investigation was transferred and petitioner again applied for bail before arrest on 10-10-2008 which was confirmed by learned Addl. Sessions Judge and against the said order, complainant moved Crl. Miscellaneous No,1368-BC of 2008 before this Court, which was allowed by my learned brother Ch. Mehmood Akhtar Khan, J. On 20-4- 2009, thereafter, petitioner was taken into custody, his physical remand was obtained and he remained with the police for 10 days but nothing was recovered from him.
4. When the matter came up for hearing yesterday, learned counsel for the petitioner submitted that petitioner is suffering from heart problem and sciatica pain so on the direction of this Court Medical Board was constituted by Chief Executive of PIMS Hospital, who medically examined the petitioner and submitted his report before this Court which reads as under:- "1. Needs investigation cardiovascular diseas coronary angiography, only by which the coronary artery disease can be. Assessed accurately ' This investigation requires hospitalization. The previous studies done in 2001 are now invalid. The possibility of acute coronary event in the presence of stable cardia of status cannot be ruled out.
2. MRI lumbo sacral spine to assess the severity of the radicular pain.
3. Intensified treatment for Acute Peptic Disease.
5. Learned counsel for the petitioner submits that during the course of investigation, three other co- accused of the petitioner, namely, Muhammad Akram, Zafar and Masood were arrested and Muhammad Akram co-accused while in police custody in presence of Malik Naseer and Shakeel Ahmad P. Ws. Stated on 20-8-2008 that in fact he fired at the complainant acid he also led to the recovery of pistol on 2-2-2009. He submits that both Malik Naseer and Shakeel Ahmad appeared before the learned Trial Court and stated the same thing that in their presence Muhammad Akram co-accused made extrajudicial confession and also led to the recovery of pistol. He further submits -that these two witnesses were never declared hostile by the prosecution. Adds that although petitioner remained in Police custody for 10 days but nothing was recovered from him, that he was found innocent by the police and his case is not only covered by sub-clause (2) of section 497 but also covered under the first proviso of section 497, Cr.P.C. Because he needs hospitalization as has been recommended by Medical Officer.
6. On the other hand, learned counsel for the complainant submits that petitioner is named in the F.I.R., that it is a case of promptly loaded F.I.R., that false plea of alibi was raised by the petitioner, that police with mala fide intention had declared him innocent but later on, challan against him was submitted in the Trial Court as he was found guilty in later investigation by the I.O. That matter can be decided within one month if a direction is given to the learned Trial Court to conclude the trial. As far as, medical ground is concerned, he submit that petitioner only needs hospitalization and direction can be given to Jail authorities to get him admitted in the hospital and thereafter, matter can be adjudicated upon. He submits that neither it is a case of bail on merits nor on medical ground.
7. Learned D.P.G. Has relied upon PLD 2005 SC 364, which has been read by learned Addl. A.-G.
Especially the observations made by the apex Court but that was a case of bail before arrest and it was case of NAB where the High Court had no jurisdiction to grant bail under sections 497 and 498, Cr .P. C .
8. I have heard learned counsel for the parties. Though the opinion of the police is not binding on the Court that at one stage petitioner was declared innocent and placed in column No,2 of the challan but as the challan has been submitted in the Trial Court, two witnesses, namely, Malik Naseer and Shakeel Ahmad appeared before the learned Trial Court and had made their statements, which are in the shape of extra-judicial confessions and they had stated that in their presence Muhammad Akram co-accused had admitted his guilt to have fired at the complainant and also led to the recovery of pistol but the learned Public Prosecutor or learned counsel for the complainant did not declare them hostile although they were making their statements against the prosecution story as set up by the complainant in the F.I.R.
9. As far as, merits of the case are concerned, this is a bail after arrest application, petitioner remained on physical remand for 10 days but nothing incriminating was recovered from him.
10. So far as, medical ground is concerned, petitioner needs hospitalization as it has been mentioned by the Board of Director that possibility of acute coronary even in the presence of stable cardiac status cannot be ruled out, it means that he is a patient of heart disease so his case is not only covered by sub-clause (2) of section 497, Cr.P.C. But also covered by the first proviso of section 497(1), Cr.P.C.
11. In this view of the matter, this petition is accepted and petitioner is allowed bail subject to this furnishing bail bonds in the sum of Rs,100,000 (one lac) with two sureties in the like-amount to the satisfaction of learned Deputy Registrar (Judi.) of this Court with the direction to the petitioner to appear during the trial on each and every date fixed by the learned Trial Court name he will not create any hindrance in the conclusion of the trial. In case, the petitioner creates any hindrance, then, the learned Trial Court will be at liberty to cancel his bail.