Dr. Khurshid lqbal. J.-
1. Having been charged and arrested in case FIR No.775, dated 06.09.2023, registered under section 11(b) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 at Police Station Cantt, District Bannu, the petitioner (Haroon Rashid) seeks his release on bail on medical ground for his being a psychiatric patient.
2. On 06.09.2023 at 14:10 hours, the complainant Raza Khan SHO, accompanied by a police contingent, had laid a barricade at Tapi Killa Chowk. Meanwhile, he apprehended a person, coming on foot in suspicious condition. He was physically searched which led to the recovery of a polythene bag from his side pocket. It was opened and checked. He recovered from it methamphetamine (ice) weighing 03 grams. The person disclosed his name as Saad Mahmood son of Khalid Mahmood resident of Sokari Hassan Khel, District Bannu. On cursory interrogation, he disclosed the methamphetamine to have been purchased from one Haroon Rashid (the petitioner). The SHO, then, rushed towards the house of the said accused and apprehended him red handed with 507 grams of methamphetamine. The recovered substances were taken into possession vide recovery memo, dated 06.09.2023. Both the accused were arrested and the murasila was drafted and sent to the Police Station through constable Sifat Ullah No.1021. This converted into the FIR.
3. Arguments heard. Record perused.
4. Record shows that on the preceding date, the Superintendent, Central Prison, Bannu was directed to get the petitioner medically examined through an authorized Psychiatrist / Medical Officer and submit a detailed report regarding his mental illness. Today, the report was submitted.
It shows that the petitioner has a past history of mental illness. His behaviour with the jail staff is reported to be 'very aggressive' and 'self-harming'. On mental state assessment, the Consultant Psychiatrist found the petitioner confused and a subject of giving wrong answers to most of the questions asked.
5. Other than the report of the Consultant Psychiatrist, there are medical documents of the petitioner on the record. Those show that the petitioner has been a psychiatric patient. It further reveals that the petitioner constantly remained under treatment. The documents date back to 2014. The last in series is the medical prescription of 26.08.2023. Moreover, the petitioner has no previous history of involvement in such like cases. The juxtaposition of this aspect with the historical background as aforesaid tentatively rules out the possibility of the documents or the medical report being manipulated or managed. The medical report in juxtaposition with the past history prima facie shows the petitioner a patient of mental illness. The prosecution is yet to prove the factum of the recovery. However, relevant at this stage is the question whether the petitioner understood the nature of the crime the moment he was allegedly apprehended and whether he could be held criminally liable if proved a mentally ill person at the trial. This is important because it has direct nexus with the mens rea which is the basic element for an act to constitute a crime.
6. Although, the Consultant Psychiatrist has noted in his report that the petitioner may be referred for two weeks to the Mental Hospital in Central Prison, Peshawar. However, the history of his treatment shows that he has been examined by Prof. Dr. Muhammad Shafique, Psychiatrist, on a monthly basis. In the circumstances, it appears that he is in need of a regular specialized treatment by the aforesaid private doctor which is not possible inside the jail. Reliance is placed on Mian Manzoor Ahmad Watto v. The State (2000 SCMR 107). In this case, reliance was placed on Muhammad Yousafullah Khan v. State (PLD 1995 SC 58), in which the following observation was made: 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 it 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.
7. Besides, investigation in the instant case is complete and the petitioner is no more required for further interrogation. Thus, no useful purpose would be served, if he is kept in jail. As held in Shabir Ahmed v. The State (2023 YLRN 35 Karachi), bail cannot be withheld as punishment and the law cannot be stretched upon in favour of the prosecution, particularly at the bail stage. Besides, the wrong caused by a mistaken relief of bail can be repaired by awarding the accused appropriate punishment in case he is proved to the contrary at the trial. However, no satisfactory reparation could be offered to an innocent person for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reference may be made to Asim Jahangir v. State (2020 YLR 891 Islamabad) and Naqeeb Ullah v. State (2023 YLR 162 Quetta).
8. Resultantly, the instant petition is accepted. The petitioner is admitted to bail solely on the medical ground. He shall be released on bail provided he furnish bail bonds of Rs.2,00,000/- (rupees two hundred thousand) with two local and reliable sureties to the satisfaction of Illaqa Judicial Magistrate / MOD, who must ensure that the sureties are local, reliable and men of means.
This order is based on tentative assessment of the record. It shall have no bearing on the merits of the trial at the trial.
9. The above are the reasons for my short order of even date.