The applicant, who is a Homeopath, had given an injection to one Abdul Hamid, who was presumably his patient. As the condition of the patient deteriorated, he gave another injection, but the patient died. Therefore a case was registered against the applicant under section 304, P. P. C. In this background the applicant had applied for bail and by his order dated 20-11-1970 the Sessions Judge, Karachi granted him interim bail, and observed "Await result of post-mortem and result of chemical analysis." However, when the application was heard, by his order of 21-1-1971 he rejected the bail application. Although the interim order had very rightly contained the observation that the cause of death could not be ascertained without the post-mortem and the chemical analysis, this order of 21-1-1971 is silent about the post--mortem and it expressly states that the chemical analysis would take the. However, in going back on the view taken by him in his interim order, the learned Sessions Judge appears to have been influenced by the fact that the prosecution of the applicant could not- be said "to be the result of malice or ill-will".
2. Mr. Shaikh submitted that the order of the learned Sessions Judge was perverse because even the F. I. R. Failed to disclose an offence under section 304, P. P. C. The F. I. R. States that the applicant was not a registered medical practitioner and with reference to the injection given by the applicant it states that "if he (the applicant) injects, the death will occur, he injected a wrong injection and after the reaction of the injection he injected another injection which resulted in the death . . . ." The question is whether these vague allegations make out even prima facie a case under section 304, P. P. C. And in support of his argument, learned counsel referred me to a judgment of a Judicial Committee reported in AIR 1943 P C 72. In view of this judgment, the learned Assistant Advocate- General admitted that it was very doubtful if a bare allegation of the type contained in the plaint could be said to make out a prima facie case under section 304, P. P. C. As I do not wish to prejudice the case of the prosecution, I would only observe here that it is unfortunate that the learned counsel for the applicant does not appear to have drawn the attention of the Court to the duty imposed on the Court to see whether the allegations in the F. I. R. Had made out a case for the section under which the F. I: R. Had been lodged.
3. I have therefore to express my great regret at the cursory 'manner in which bail has been refused. As I have pointed out, the main considerations which appear to have affected the Sessions Judge were that the chemical analyser's report would take a long the to come and that the malice could not be imputed to the Police. But in the circumstances of the case, these con--siderations were hardly relevant to the question of the grant of bail, and I am surprised that the learned Sessions Judge took this view because in his earlier order he had very correctly stated that it was necessary to await the post-mortem and the chemical analysis.
4. As, despite the very proper, view taken in his earlier order, the learned Sessions Judge had not referred at all to the post--mortem. I directed the Assistant Advocate-General to produce before me the relevant papers and he has done so. He has also stated that he did not rely on the depositions, and that the question of bail at this stage had to be decided on the basis of the medical evidence. He took me through the post-mortem, and in reference to item No. 20: "Opinion as to the cause or probable cause of death" the doctor who carried out the post-mortem has written `Reserved till chemical, and pathological examination report'. "Probable cause of death.
Reaction of injection is doubted to have caused the shock." Thus the investigation really turns on the chemical and pathological report. Those reports are not yet available, but merely because they were not available, it does not mean that citizens are to be thrown into jail. I would therefore observe here that, whilst the prosecution would be free to apply for cancellation of bail if the reports awaited implicate the appli--cant under section 304, P. P. C. At this stage the medical evidence is not such as to warrant the rejection of bail. I had therefore enquired from the Assistant Advocate-General Whether, there was any other evidence implicating the applicant and he stated that at this stage there was no other evidence. In these circumstances, the applicant is entitled to bail.
5. I have pointed out that the learned Sessions Judge has not considered the post-mortem report and I would like to observe here that even if it escaped his attention, it was the duty of A. P. Ps. To have placed the relevant facts before the Court, therefore he should have drawn the attention of the learned Sessions Judge to the post-mortem report. But from the impugned order I have to state with great regret that he does not appear to have. Given proper assistance to the Court.
6. The bail application is allowed. Bail in the sum of Rs. 5,000 with one surety to the satisfaction of this Court.