' In an unfortunate incident of shooting, taken place on 16-2-1989, right in the official residence of a serving Deputy Inspector-General of Police, Hazara at Abbottabad, Mazhar Sher Khan, the Deputy Inspector-General lost his life and an ex-Speaker of the last' Provincial Assembly, namely, Raja Amanullah Khan, who was also arraigned as a co-accused with the petitioner, later on 24-4-1989 succumbed to the injuries sustained by him during the said incident, and the petitioner Muhammad Ashraf Khan Tarcen is involved as an alleged assailant.
2. Initially a case was registered under section 307/34, P.P.C. Vide F.I.R. No,147 dated 16-2-1989 at 10 p.m. On the report made by H.C. Taus Khan, an orderly at the residence of the deceased Mazhar Sher Khan. Later, however, the offence-Was changed to section 302/452, 449/34, P.P.C:
3. Briefly stated, the facts leading to the instant petition are that, on the eventful evening at about 9 p.m., the petitioner, accompanied by late Raja Amanullah Khan, visited the residence of the deceased Mazhar Sher Khan and were seated by Taus Khan H.C. In a room adjoining to the drawing room According to the report made by Taus Khan, the deceased also came to the room after a little while and he had hardly sat down there when both the accused, namely, the petitioner and the late Raja Amanullah Khan, started abusing him. In the wake of this, the petitioner fired at the deceased allegedly at the instance of late Raja Amanullah Khan which hit the deceased. The complainant tried to catch hold of the petitioner at which the petitioner is alleged to have fired another shot which hit Raja Amanullah Khan. Thereafter both the petitioner -and later Raja Amanullah Khan left the house in the car in which they had conic. Mazhar Sher Khan was removed to the hospital immediately where he was examined by Dr. Shehryar vide his report dated 16-.2- 1989 but later succumbed to his injuries at 3-30 a.m. In the following morning. Raja Amanullah Khan was also carried to the same hospital by the petitioner and was examined by the same Medical Officer Dr. Shehryar who found fire-arm injuries on his person as per his report, dated lo-2- 1989. While still in the hospital, the petitioner is stated to have been arrested on the- same day as is evident from the poke Daily Diary dated 16-2-1%9.
4. An application for the release of the petitioner on bail, on the ground of sickness, was first moved on 24-5-1989 before the learned S.D.M., Abbottabad but the same was dismissed vide his order, dated 25-5-1989.
5. Another application seems to have been made by the petitioner to the trial Court for his release on bail which was disposed of as per order dated 6-6-1989, with a direction that the accused- petitioner be allowed to be sent to Pakistan Institute of Medical Sciences (hereinafter to be referred as P.I.M.S.), Islamabad for treatment.
6. , On 19-6-1989, yet another bail application of the petitioner was moved before the Additional Sessions Judge, Abbottabad which was finally rejected vide his order dated 19-7-1989. Hence the present petition.
7. I have heard Mr. M. Sardar Khan, Advocate learned counsel for the petitioner and Mian Muhammad Ajmal learned Additional Advocate-General assisted by Mr. Tariq Parvaiz learned Special Public Prosecutor for the State at length and also perused the record of the case with considerable degree of care.
8. It is contended on behalf of the petitioner that he has been seriously suffering from Cervical Spondylosis as also from Chronic ischaemia of heart for which the facilities of treatment either were not at all available in the jail or they are too inadequate to meet the severity of the ailment the petitioner is suffering from and that while in custody, it is well-nigh impossible for the petitioner to receive treatment of his choice due to administrative stringencies of security etc.
9. As against this, the learned counsel for the State, while contesting the petition, maintained that every possible effort has been made by the authorities to give the petitioner snitable treatment for his ailment so much so that he has been shifted and got admitted in the P.I.M.S., Islamabad on 16- 7-1989, albeit at his own cost, but he himself failed to avail the same and had to he dicharged hardly a week thereafter on his own request. The learned Special Public Prosecutor submitted that the sickness simplicity is not enough to attract the first proviso to subsection (1) of section 497, Cr.P.C. And an accused person seeking bail on the ground of sickness must show that his sickness is such as may be dangerous to his life and its adequate treatment is not available in the Jail hospital. He also raised a point that the 1st proviso to subsection (1) of section 497, Cr.P.C. Cannot be read in isolation and, while exercising discretion in matter of releasing an accused' person on bail on the ground of sickness, the prohibitory part of subsection (1) of section 497, Cr.P.C cannot be lost sight of and, accordingly the facts of the case, shall also have to be borne in mind while exercising such discretion in favour of the petitioner.
10. I have given my serious consideration to the submissions made by the learned counsel in support of their respective pleas.
11. It appears to me a matter of satisfaction that both the parties are in agreement at least on one point that the petitioner is suffering from Cervical Spondylosis in its acute form and that there is a legitimate .Need of the requisite treatment therefor.
12. What is to he examined now is as to whether steps taken, from time to time, by the authorities for administering treatment to the petitioner, in any way, proved fruitful in providing adequate relief to the ailments the petitioner is suffering from.
13. A reference, in this behalf, to the record reveals that the petitioner was found, for the first time, by the Jail doctor on 15-3-1989 as suffering from Cervical Spondylosis and Chronic Ischaemia of heart.
He was given oral treatment but the petitioner did not respond. On 15-4-1989, he was referred to Orthopaedic Surgeon, Abbottabad, who on his examination on 16-4-1989, opined that since the patient was treated at Islamabad Complex and that as the facilities for his illness are not available in District Headquarter Hospital, Abbottabad, he may be referred to P.I.M.S., Islamabad for further treatment. No action seems to have been taken till an application was moved on behalf of the petitioner on 2-5-1989 before the S.D.M., Abbottabad for transportation of the petitioner to P.I.M.S. Islamabad. Meantime, however, the District Magistrate appears to have got a Medical Board constituted through Medical Superintendent to examine the petitioner. This Board confirmed on 25- 4-1989 that the petitioner has been receiving treatment for Cervical Spondylosis, at various times, from different doctors as the facility of Intermittent Cervical Traction, for which the petitioner claims to have benefited regarding relief to pain, is not available at the District Headquarters Hospital, Abbottabad. The Board, therefore, opined that to give the benefit of this treatment, the petitioner should be sent to a Centre where this facility is available. Apparently nothing happened thereafter.
After a month on 25-5-1989, however, the petitioner moved his first application to the S.D.M., Abbottabad for his release on bail which, was rejected on the point of lack of jurisdiction.
14. The record further indicates that the petitioner then moved two applications before the learned Additional Sessions Judge, Abbottabad on 28-5-1989 with the prayers firstly, for his shifting to the P.I.M.S. Islamabad for treatment and other for his release on bail on medical grounds and the order of the learned Additional Sessions Judge, dated 6-6-1989 reveals that while the petitioner withdrew his application for bail, the learned Additional Sessions Judge passed an order on the other application in that the petitioner be sent to P.I.M.S., Islamabad for treatment and, after examination, the Medical Superintendent P.I.M.S. Should submit his report to the Court stating as to whether any treatment is required at P.I.M.S., Islamabad and that if the accused-petitioner is not required to be indoor patient, then he may be shifted back to Central Jail, Haripur for treatment.
15. Again no action seems to have been taken till 19-6-1989 when yet another application for bail on medical grounds was moved before the learned Additional Sessions Judge, Abbottabad. It transpires that the matter was still pending final decision with the learned Additional Sessions Judge, when under the orders of Deputy Commissioner, Abbottabad, on 3-7-1989 the petitioner was sent to P.I.M.S. For examination where Doctor G.M. Malik, Orthopedic Surgeon, after examining the petitioner, opined that he is an advanced case of Cervical Spondylosis with marked stiffness of the neck and freezing of shoulder left side. The doctor advised prolonged treatment of Physiotherapy and Intermittent Cervical Traction and complete bed rest with no journey. He also advised admission and then treatment. The petitioner, instead of getting him admitted in P.I.M.S., was made to undertake journey back to Haripur on the same day, obviously against the orders of the learned Additional Sessions Judge dated 6-6-1989 and certainly contrary to the medical advice.
16. It was on 8-7-1989 that at the hearing of bail application before the Additional Sessions Judge, Abbottabad, the factum of violation of his order, dated 6-6-1989 as also the act of transporting the petitioner back from Islamabad to Haripur Jail contrary to G.M. Malik's opinion was brought to the notice of learned Additional Sessions Judge who while reiterating his earlier orders, issued directions to the authorities to make arrangements for shifting the petitioner to P.I.M.S., Islamabad for admission within 3 days i,e, by 11-7-1989 as recommended by the concerned doctor of P.I.M.S. Islamabad. Accordingly the petitioner was shifted to P.I.M.S. Islamabad, though not within 3 days but after 8 days on 16-7-1989 and having thus arranged the medical facilities of his choice his application for bail was rejected by the Additional Sessions Judge vide his order dated 19-7-1989.
17. The record of the case, however, discloses that after his admission in P.I.M.S., for reasons enumerated in his application dated 22-7-1989, the petitioner was discharged hardly after a week and transferred back to the Jail. The discharge slip dated 23-7-1989 confirms that he was suffering from Cervical Spondylosis with frozen shoulder and chronic Ischaemia of heart. Strangely enough there is another discharge slip dated 24-7-1989 on the record which also showed the petitioner as suffering from Cervical Spondylosis but substituted Hypertension for Chronic Ischaemia. On a close examination of both the discharge slips, I found, that in the column of treatments, except advising certain medicines, no physiotherapy or traction was carried out on the patient from the date of his admission till the date of his discharge giving rise to a certain amount of credence to the complaint which the petitioner made by way of the application dated 22-7-1989 referred to above and discharged from P.I.M.S. Consequently.
18. The learned counsel for the petitioner brought to my notice the events subsequent to the situation stated above in that the Medical Officer, Central Jail, Abbottabad on 28-7-1989 again referred the petitioner to Dr. G.M. Malik of P.I.M.S., Islamabad for seeking his advice, for, the Medical Officer found the petitioner suffering from severe pain and stiffness of neck and unable to perform his routine activities. He further found the petitioner restless and unable to sleep at night and consequently losing his weight. The Medical Officer thus sought the advice of Dr. G.M. Malik. It transpires that after examining the petitioner Dr. G.M. Malik opined:-- "The patient is a Chronic case of Cervical Spondylosis with frozen shoulder left side which is deteriorating day by day. His neck was considerably restricted and almost complete loss of movement of shoulder joint. He needs prolonged treatment of physiotherapy and Cervical Traction in Hospital and prolonged bed rest. His condition will be deteriorating day by day further without proper treatment which may result into complete restriction of neck muscles."
19. The learned counsel for the petitioner also brought to my notice a recent communication dated 29-8-1989 from the Superintendent, Central Jail, Haripur to the son of the petitioner stating that 'the condition of the petitioner has deteriorated in Jail Hospital. His blood pressure is falling low due to severe pain and that he can have an interview with his father at any time before lock-up'.
20. In the context of the foregoing events, which I have given in somewhat detail in order to appreciate the condition of the petitioner, it is evident that for the last 6 months, while in captivity, no substantial relief of the ailments of the petitioner has taken place either due to inadequate medical facilities available in the Jail or on account of administrative hurdles in the way of the authorities to provide him treatment of his choice.
21. The circumstances of the case detailed above have led me to reach an unescapablc conclusion that throughout the period the petitioner has remained 'in jail, suffering from a serious disease like Cervical Spondylosis, no such specialized treatment, due to its non-availability could he administered to the petitioner in the Jail hospital as to have ameliorated his condition nor can he legitimately expect to have a treatment of his choice while remaining in jail. In this context of the .Matter, I am clear in my mind that if the petitioner, who is suffering from acute ailment of Cervical Spondylitis accompanied by intolerable pain, is left to remain behind the bars till the decision of his trial, his condition will further deteriorate and may result in permanent freezing of his left shoulder joint and consequently permanent loss of his left arm.
22. Regarding the point raised by the learned counsel for the State qua the nature of sickness, the words 'sick' or 'infirm', I am afraid, have not been used in 1st Proviso to subsection (1) of section 497, Cr.P.C. In the sense as the learned Special Public Prosecutor wants me to construe inasmuch as it does not necessarily qualify the sickness or infirmity in terms of its being dangerous to life of an accused person or non-availability of treatment therefor in the jail. In my considered opinion, once the Court arrives at a conclusion, on the basis of the material placed on the record, that an accused person is suffering from a serious ailment and the attending circumstances suggest that he cannot be administered adequate treatment therefor in the jail hospital, a case shall be made out in favour of the accused and it will not be safe to withhold the concession of bail any more.
Rather the interest of justice shall be better served if he may be released on bail so as to enable him to receive suitable treatment of his disease and to face his trial.
23. Similarly the submissions of the learned Special Public Prosecutor with regard to the applicability of 1st Proviso to subsection (I) of section 497, Cr.P.C.To the case of the petitioner, have impressed me the least.
24. A proviso to any provision of law, I believe, is an exception to the rule enunciated in the provision of an enactment to which it is the proviso. The principle underlying is that the main provision covers a particular field and the C proviso is carved out from that particular situation and as such to that extent modifies the main provision of the enactment. In short a proviso is a clause engrafted on a preceding provision of a law for the purpose of restraining or modifying the enacting clause or of excepting from its operation which otherwise would have been within it.
25. In this context, it shall not be correct to say that while applying 1st proviso to subsection (1) of section 497, Cr.P.C., the concession of bail cannot be extended to accused person simply because his case falls within the prohibitory part of section 497, Cr.P.C. Notwithstanding the fact that the case of the accused person otherwise conforms to the conditions mentioned in the Proviso. For, it is now well-settled that where a statute itself lays down certain principles for doing some acts, they may be taken as guidelines for doing something of the same nature which is in the discretion of the Court. In this view of mine I have sought strength from what the Supreme Court has held in case of Maqsood v. Ali Muhammad and others reported in 1971 SCMR 657 and the relevant portion whereof states: "Under the proviso to subsection (1) to section 497, a sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation of life."
26. In the light of the foregoing discourse, in the point of fact as also in law, I have no hesitation in holding that a case is made our on behalf of the petitioner for exercising discretion in his favout to enlarge him on bail. Consequently while I allow this petition, I hereby order that the accused- petitioner be released on bai subject to his furnishing a bail bond in the sum of Rs,5;00,000 (Rupees five lacs), with five local sureties of means in the like amount each, to the satisfaction- o -District Magistrate, Abbottabad.