This revision petition has been directed against the order of Additional District Criminal Court Sehnsa dated 08.06.2010, whereby bail was allowed to the accused-respondent.
The facts precisely stated are that Israj, complainant, filed an F.I.R. at Police Station Sehnsa on 28.4.2010 at 6:30 p.m. alleging therein that he was proceeding towards village Kalor in his private car. At 6:00pm, when he reached Kalor, Jhangir accused seeing the car stood on the road and signaled him to stop the car. As soon as, the complainant stopped the car, the accused pulled him out of the car and with the intention to murder him caused blows of knife successively, which hit him on his chest and back. After sustaining injuries, he fell down on the ground. In the meantime, Shahzad and Shakoof also arrived at the spot, who witnessed the occurrence.
The motive behind the occurrence is an altercation, Which took place between them, a day prior to the occurrence.
On this report, a case under Sections 341/324, 337(A.F), APC was registered and the accused- respondent was apprehended on 29.4.2010.
After arrest, the accused-respondent filed a- bail application before Tehsil Criminal Court Sehnsa on 24.5.2010, which was dismissed on 3.6.2010. On the same day, he approached the Additional District Criminal Court Sehnsa, whereby the bail was allowed to him vide its order dated 8.6.2010; hence, this revision petition.
In support of the revision petition, Raja Javaid Akhter the learned Counsel argued that the Court below fell in grave error while allowing bail to the accused-respondent, who is involved in a heinous case. The learned Counsel further contended that the F.I.R, in the instant case was promptly lodged, accused-respondent was nominated, a specific role of launching murderous attack was clearly ascribed and the names of eye-witnesses were also mentioned therein. The learned Counsel also submitted that the statements of prosecution witnesses recorded under Section 161, Cr.P.0 fully implicate the accused-respondent with the commission of offence, which falls in the prohibitory clause of Section 497, Cr.P.C. The learned Counsel agitated that the medical evidence further corroborates the prosecution version, which shows that the complainant sustained dangerous injuries caused by sharp edged weapon. The learned Counsel maintained that according to the report of medical board, the respondent is a fit person and his detention in the jail will not endanger his life. The learned Counsel pointed out that the Court below without solid proof and calling for any expert's opinion allowed bail to the accused-respondent in a hasty manner whereas the gruesome act of the accused shows that he is not a patient rather a hardened criminal who pulled out the complainant from the car and then caused him six injuries with a sharp edged weapon on vital part of his body; therefore, exercise of discretion by the Court below being perverse and fanciful is not sustainable. The learned Counsel finally prayed that the concession of bail may be recalled. In support of the contentions, the learned Counsel placed reliance upon the following authorities:--
1. 2000 PCr.LJ 674;
2. 2001 M LD 287; &
3. 2003 YLR 2323; Aqab Ahmad Hashmi, the learned Addl.A.G appearing on behalf of the State fully supported the arguments raised by the learned Counsel for the complainant-petitioner and submitted that the complainant sustained five injuries by sharp edged weapon, which is by itself sufficient to prove that the respondent is fit and healthy.
Syed Tufail Hussain Bukhari, the learned Counsel for the accused-respondent, controverted the arguments raised by the learned Counsel for the petitioner-complainant and submitted that the respondent was admitted to bail on medical ground; therefore, merits of the case cannot be looked into while deciding the revision petition. The learned Counsel further argued that the opinion of medical board is biased and vague. The learned Counsel pointed out that the medial board constituted by this Court has not answered the questions put by this Court; therefore, it cannot be relied upon. The learned Counsel pressed into service the submission that the accused- respondent is suffering from heart disease due to which a permanent pacemaker was implanted in his body in year 2006; therefore, his detention in the jail would be detrimental to his life. The learned Counsel stressed upon the point that proper treatment of ailing accused is not available in the jail; therefore, the impugned order was passed in a legal fashion, which may be maintained.
The learned Counsel finally submitted that when a Court of competent jurisdiction allows bail to an accused, then it cannot be cancelled unless the discretion exercised by the Court is proved on the record to be either perverse or capricious, even in cases punishable with death or imprisonment for life or imprisonment for 10 years. The learned Counsel defended the impugned order on all counts and referred to me the following case law in support of his arguments:--
1. 1990 PCr.LJ (Peshawar) 169;
2. 1992 SCR 379;
3. 2004 PCr.LJ (SC AJK) 464;
4. 2005 PCr.LJ 1713; &
5. 2010 Cr.Cases Karachi 629.
I have very carefully taken into consideration the points canvassed by the learned Counsel for the parties, after perusing the record made available. A careful examination of the record shows that the accused-respondent presented his bail petition on the basis of merits of the case and medical ground but neither any medical report nor any proof in support of his ailment was placed on the record. Similarly, it transpires from File No. 320/2010 dated 22.6.2010, another bail application filed before Additional District Criminal Court, Sehnsa that none of medical report or proof for ill health or infirmity of the accused was placed on the record. The part (I) of above mentioned file consists of (8) pages and part (II) of file consists of (9) pages but not a single document was produced by the respondent in support of his version; therefore, the findings of the Court below to the effect that any material was produced before the Court below, is without any substance and cannot be upheld.
It is necessary to mention here that according to the respondent due to heart ailment he was discharged from the Army in year 2006 and a pacemaker was implanted. As no record about the ailment of the accused was available on the file; therefore, this Court constituted a medical board consisting of a senior Cardiologist and a senior Medical Specialist District Headquarter Hospital Kotli to give its opinion about the ailment and infirmity of the accused. The respondent was examined and the report of medical board was produced before the Court which reveals that the permanent pacemaker was implanted to the respondent in year 2006 and there is no danger to his life wherever he resides. He should avoid direct Electric shock and he only needs an annual checkup from AFIC Rawalpindi, which is due on 29.11.2011. In this manner, it has been proved on the record that the detention of the respondent in jail will not be detrimental to his life.
It will not be out of place to mention here that according to the prosecution, it has been alleged that the respondent caused six injuries to the complainant with a sharp edged weapon, which hit the complainant on vital part of his body i.e. chest and according to the medical examination report, Injury No. 5 is dangerous to life. Keeping in view the overall facts and peculiar circumstances of the case, the Court below failed to exercise its discretion in a legal and judicious manner; therefore, the impugned order is not sustainable.
As far as the case law cited by the learned Counsel for the petitioner-complainant is concerned, deals with the merits of the case and not about principles governing the bail matters on the ground of ill health of the accused whereas the most of the authorities referred to by the learned Counsel for the accused-respondent are concerned, deal with the principles of cancellation of bail i.e. once bail is granted to an accused by a Court of competent jurisdiction, it cannot be cancelled unless the discretion exercised by the Court seems to be perverse, capricious or arbitrary. As stated earlier, the exercise of discretion by the Court below smacks of arbitrariness or perversity; therefore, the impugned order cannot be upheld. The facts of Muhammad Ashraf Khan's case (1990 PCr.LJ 160) are distinguishable from the facts of the present case and needless to say that an authority in a criminal case is relevant only to the facts of the case in which the same is given.
The analysis of above discussion is that I accept this revision petition, set-aside the impugned order dated 8.6.2010. Resultantly, the concession of bail is recalled. The accused-respondent shall be arrested and be detained in judicial lockup. It is further directed that during his detention the facilities of medical checkup by a Cardiologist will be provided to him on regular basis twice a month.