INAM ULLAH KHAN J.- Through instant application, the petitioner Sial Muhammad alias Siyal son of Sakhi Muhammad alias Sakhi Jan is seeking post-arrest bail in case FIR. No.12. dated 21.01.2025, registered under Sections 324, 353, 392 PPC read with Sections 5 Explosive Substances Act and 15 Arms Act of Police Station Shahbaz Khel, District Lakki Marwat, on medical ground.
2. As per contents of FIR, the local police, on hearing the firing, came to know that 4/5 persons, duly armed with SMG rifles were present at Bannu-D.I.Khan Road for committing decoity. On the said information, the police raided the informed place where they saw the armed persons in the headlights of their official vehicles. On seeing the police party, the said persons started firing at them, whereas the police also made firing in their self defence, however, the police party overpowered and apprehended four persons. The three accused were armed with SMG rifles and hand-grenades while one was armed with only hand-grenade. One accused succeeded in decamping from the spot. From the possession of accused Muhammad Asif, one Kalashnikov folding butt with fit magazine and two spare magazines containing 19 live rounds of 7.62 bore with cloth bandolier and a hand-grenade were recovered, while from the possession of present petitioner, one SMG rifle folding butt with fit magazine and two spare magazines containing 17 rounds of 7.62 bore alongwith cloth bandolier were recovered. From the possession of accused Aftab Hussain, one SMG folding butt alongwith cloth holster was recovered. Similarly, from the possession of co-accused Zia-ur-Rehman, one hand-grenade was recovered from his shirt.
3. It is worth mentioning that bail was declined to the present petitioner and co-accused Zia-ur- Rehman, Muhammad Asif and Aftab Hussain by learned Additional Sessions Judge-I, Lakki Marwat, vide order dated 20.02.2025. Subsequently, they filed bail petition before Bannu Bench of Peshawar High Court and vide judgment dated 10.3.2025, passed in Cr.Misc.BA. No.77-B of 2025, bail was declined to them on merit. The petitioner then submitted application before the trial Court for his release on bail on medical ground, however, same was dismissed vide order dated 22.7.2025. Now the petitioner has filed the instant bail petition by pressing into service the medical ground.
4. I have heard the arguments of learned counsel for the petitioner and the learned AAG representing the State and have gone through the record with their able assistance.
5. Keeping in view the complexity, attached with release of accused on medical ground, I deem it advantageous to refer (inter ilia) the International Law and precedents with regard to Prisoners' health-related rights. Under Article 3 of the European Convention on Human Rights, the State, must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with requisite medical assistance. In this respect, following cases are being referred:- Holomiov v. the Republic of Moldova (7 November 2006)
In the above-cited case, the applicant alleged that he was detained in inhuman and degrading conditions and that he had not been provided with proper medical care. According to medical certificates submitted by him he suffered from a number of serious illnesses including chronic hepatitis, second-degree hydronephrosis, chronic bilateral pyelonephritis with functional impairment of the right kidney, hydronephrosis of the right kidney with functional impairment, and chronic renal failure. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It noted in particular that the parties disagreed about the availability of medical care in prison. It considered, however, that the core issue was not the lack of medical care in general but rather the lack of adequate medical care for the applicant's particular conditions. In the present case, the Court observed in particular that, while suffering from serious kidney diseases entailing serious risks for his health, the applicant had been detained for almost four years without appropriate medical care. It therefore found that the applicant's suffering has constituted inhuman and degrading treatment.
Testa v. Croatia (12 July, 2007).
In the captioned case, the applicant was serving a prison sentence on counts of fraud, who had chronic hepatitis (Hepatitis C) with a very high level of viremia (presence of viruses in the blood), complained in particular about the lack of adequate medical treatment and check-ups, the inadequate diet and lack of opportunity to have sufficient rest. Considering that the nature, duration and severity of the ill-treatment to which the applicant had been subjected to and the cumulative negative effects on her health could qualify as inhuman and degrading treatment. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found in particular that the lack of requisite medical care and assistance for the applicant's chronic hepatitis coupled with the prison conditions which she had to endure for more than two years had diminished the applicant's human dignity and aroused in her feelings of anguish and inferiority capable of humiliating and debasing her and possibly breaking her physical or moral resistance.
Kotsaftis v. Greece.
The applicant, who was suffering from cirrhosis of the liver caused by chronic hepatitis B, complained about the conditions of his detention on account, in particular, of the lack of treatment appropriate to his state of health. In March 2007, under Rule 39 (interim measures) of the Rules of Court, the Court requested Greece to order the transfer of the applicant to a specialised medical centre so that he could undergo all the necessary tests and remain in hospital until his doctors considered that he could return to prison without his life being endangered. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that, during the period between 9 June 2006 and 15 March 2007, the Greek authorities had not fulfilled their obligation to safeguard the applicant's physical integrity, in particular by providing him with the appropriate medical care. The Court noted in particular that, during that period, contrary to the findings of the expert reports drawn up, the applicant had been kept in detention without being given a special diet or treatment with the appropriate drugs, and had not undergone tests in a specialist medical centre. Moreover, an operation scheduled for a particular date had not been performed until one year later. The Court also deplored the fact that the applicant, who was suffering from a serious and highly infectious disease, had been detained along with ten other prisoners in a cell measuring 24 square metres. Lastly, despite the fact that the competent authorities had been informed that he was suffering from cirrhosis and that his condition necessitated appropriate treatment, it was not until measures had been indicated by the Court that the applicant began to receive regular check-ups.
Poghosyan v. Georgia (24 February 2009)
This case concerned the structural inadequacy of medical care in prisons, in particular as regards the treatment of Hepatitis C. The applicant complained in particular that his discharge from the prison hospital had been premature and that he had not received proper medical care while in prison. The Court, finding that the applicant had not received treatment for his viral hepatitis C while in custody, held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It considered in particular that it was not enough to have the patient examined and a diagnosis made. To protect the prisoner's health it was essential to provide treatment corresponding to the diagnosis, as well as proper medical supervision.
Furthermore, noting that almost forty applications concerning the lack of medical care in Georgian prisons were at the time pending before the Court, the Court found that there was a systemic problem concerning the administration of adequate medical care to prisoners infected, inter alia, with viral hepatitis C. It consequently invited Georgia, under Article 46 (binding force and execution of judgments) of the Convention, to take legislative and administrative steps, without delay, to prevent the transmission of viral hepatitis C in prisons, to introduce screening arrangements for this disease and to ensure its timely and effective treatment.
Catalin Eugen Micu c. Roumanie (5 January 2016)
The applicant alleged, among other things, that he had caught hepatitis C while in prison and that the competent authorities had not fulfilled their obligation to provide him with appropriate medical treatment. The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading) of the Convention. It noted in particular that the spread of transmissible diseases should be a Junior public health concern, especially iii prisons. For the Court, it would therefore be desirable if, with their consent, prisoners could benefit, within a reasonable time after being committed to prison, from free screening for hepatitis or HIV/AIDS. The existence of such a possibility in the present case would have facilitated the examination of the applicant's allegations as to whether or not he contracted the disease in prison.
Hummatov v. Azerbaijan (29 November 2007)
The applicant, who had a number of serious diseases, including tuberculosis, alleged in particular that the Azerbaijani authorities had knowingly and willingly contributed to a serious deterioration in his health by denying him adequate medical treatment in prison. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the medical care provided to the applicant in prison in the period after 15 April 2002 had been inadequate and must have caused him considerable mental suffering which had diminished his human dignity and amounted to degrading treatment.
6. The International precedents are binding on the State(s) which are signatory to the Conventions/Treaties in relation to which International Judicial Forums deliver decisions. These precedents can also be taken as guideline even by the non-signatory States. In Muhammad Ahmad Pansota and others' case[1], it was held in Paras 55 & 56 that:- "55. Pakistan has ratified international human rights treaties which enshrine the right to food. The language of these agreements signifies that Pakistan has agreed to work within an international human rights framework and has an obligation to take steps to respect and fulfill such rights. This creates moral, legal and ethical imperatives to bring this human right framework home by developing a domestic food policy infrastructure based on the right to food. As signatory to the above conventions and treaties, Pakistan is bound to honour its international commitments.
Respondents are duty bound to adhere to their own policies under the doctrine of sovereignty in the light of case law reported "DEWAN SALMAN FIBRE LTD. v. FEDERATION OF PAKISTAN and others"
(2015 PTD 2304), "NATIONAL BANK OF PAKISTAN v. IFTIKHAR RASOOL ANJUM and others" (2017 PLC (C.S.) 453) which was upheld by the Hon'able Supreme Court of Pakistan in "BAHADUR KHAN and others v. FEDERATION OF PAKISTAN through Secretary M/o Finance, Islamabad and others" (2017 SCMR 2066). The august Supreme Court in Bahadur Khan case reported at 2017 SCMR 2066 has held that: "Commitment made on behalf of government should neither be lightly disregarded nor deliberately ignored. Orderly development of a civilized society requires that citizens should be entitled to place implicit faith and confidence on representations which are made by or on behalf of duly constituted governmental authorities."
56. International conventions to which Pakistan is a signatory that address economic, social and cultural rights could be interpreted as legally binding according to our own Constitution. Importantly, provisions in the Constitution such as those guaranteeing equality and freedom from discrimination would appear to protect economic rights including the right to food".
7. Cominv, to the case of petitioner, the report of Standing Medical Board, reveals that the petitioner is suffering from Multi Drug Resistant TB and Hepatitis-C. The Standing Medical Board has suggested the following measurement:
(i) Strictly isolate the patient.
(ii) Strictly take care of patient diet.
(iii) Further management is needed.
8. Granted, that the correct criteria for grant of bail to an accused on medical ground, in a non- bailable offence, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the jail premises 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.
Besides taking measures for proper treatment of sick accused/petitioner, the Court is supposed to be mindful about the health of other inhabitants of jail which include, inter alia, the steps for preventing their exposure to epidemic diseases which may be caused due to the sickness of one(s) of the other inhabitants, the accused/petitioner in the instant case. Undeniably, the diseases of the petitioner are epidemic diseases and could also affect the other prisoners admitted in jail hospital. It was for this reason that the Standing Medical Board suggested strict isolation of the petitioner and his care of diet. There is no denial to this fact that no isolation facility is available in jail premises and all the patients (prisoners) are kept in the same premises/ward, hence, there is every apprehension that the other patients/prisoners might be affected from the disease suffered by the petitioner. Even otherwise, hospitals/wards of the prisons are already overburdened with patients suffering from different diseases, hence, keeping the petitioner in jail hospital would no less dangerous.
In Imtiaz Ahmed's case[2], it was held that:- "It must be borne in mind that custody of under-trial prisoners, including health care and other facilities has to be regulated strictly by the Judges, before whom the trials are pending. The jail authorities can only deal with the custody of those prisoners who are sentenced to imprisonment.
Thus, we are of the view that the Presiding Judge of the Special Court was fully oblivious of his judicial authorities to enforce the writ of the Court, keeping in view the urgent and sensitive nature of the matter. Even in a case of hardened, desperate and dangerous criminals, they are entitled to similar treatment, however, to ensure that they may not abscond from the custody, the Court may direct that while staying in the government hospital for treatment sufficient number of security guards should be provided, however, on that ground alone urgent treatment from specialist doctors whenever is seriously needed, cannot be denied to them, being a fundamental right of every citizen, as the provision of the Constitution has not drawn any distinction between an under- trial prisoner or citizens at large.
In Haji Kabeer Khan's case[3], it was held that:- "Courts are not required to qualify or quantify the nature of disease and once a case is made out under the recognized principle laid down by the Supreme Court in this behalf, bail is to be granted on medical ground leaving prosecution at liberty to move the court for cancellation of bail, if health of accused has improved during pendency of proceedings, because on the ground of sickness or infirmity, on exceptional term, law has offered an opportunity to an accused to enjoy the concession of bail subject to satisfying the Court about the nature of his ailment as well as on the ground of non-getting of proper treatment in jail, but no sooner the accused has improved his health, the prosecution can come forward with the request for withdrawal of the concession of bail."
9. The summary of the above discussion is that bail can be granted on medical ground for either of the two reasons i.e. (1) if the accused/petitioner is suffering from such a disease which is not manageable in the jail hospital and may become detrimental to health of the accused/petitioner or (2) the nature of disease is such that it may spread and infect the other inhabitants of the jail and may prove detrimental to their health. In the instant case, both the grounds co-exist.
10. For the aforesaid reasons, this petition is allowed and the accused/petitioner is directed to be released on bail subject to furnishing bail bonds in the sum of Rs.200,000/- (two hundred thousand) with two sureties, each in the like amount, to the satisfaction of learned trial Court/Duty Judge.
11. Above are reasons for my short order of even date.
1. Muhammad Ahmad Pansota and others v. Federation of Pakistan and others (PLD 2020 Lahore 229)
2. Imtiaz Ahmed v, The State through Special Prosecutor, ANF (2017 SCAR 1194)
3. The State v. Haji Kabeer Khan (PLD 2005 Supreme Court 364)