2. The petitioner thereafter made fresh efforts in this behalf, this time solely by invoking second Proviso to subsection (1) of section 497, Cr.P.C. On the ground of sickness. His bail applications were thus rejected both by the learned Magistrate 1st Class as well as the learned Sessions Judge, Mansehra vide their respective orders dated 10-12-1990 and 21-1-1991 mainly for the reason that in the earlier order of this Court, the plea of sickness was also raised which was repelled. Hence the instant petition.
3. I have heard Qazi Shamshud Din, Advocate, learned counsel for the petitioner and Mr. J.D. Akbarji, learned Advocate-General for the State as also Mr. Muhammad Amin Khattak, learned counsel for the complainant and perused the record of the case with considerable degree of care.
4. It is contended on behalf of the petitioner that notwithstanding the earlier order of this Court where the plea of sickness although was raised and could not find favour with this Court solely on the ground that the petitioner had declined to avail the medical facilities in jail by refusing to be operated upon during his detention yet now, the learned counsel added, the condition, of the petitioner with the lapse of time has worsened and in view of the report of a Medical Board constituted under orders of this Court dated 29-4-1991 as well as by yet another Board, with a member who is specialist in Urology, as per order of this Court dated 3-7-1991; lends support to the fact that the petitioner is suffering from an ailment of delicate internal organ like kidney and as such is a sick person within the meaning of first Proviso to subsection (1) of section 497, Cr.P.C.
Supplementing his arguments in this behalf, the learned counsel further contended that it is an extremely painful disease that calls for constant, and instant attention which are not expectedly available in jail or, for that matter, in the District Headquarter Hospital, Abbottabad. He, therefore, maintained that in such circumstances and in order to avail adequate treatment of his choice for an ailment which may prove fatal, the petitioner deserves to be released on bail.
5. As against this, the learned counsel for the State, as also for the complainant, while reiterating the point of earlier refusal of his plea of bail by this Court on the ground, inter alia, of sickness; submitted that no fresh reason is either pressed into service nor is available to the petitioner in order to avail the concession of bail; moreso while the punishment provided for the offence, the accused is charged with, falls within the prohibitory clause of section 497, Cr.P.C. And the petitioner cannot be released on bail under the law unless he establishes that he is suffering from an ailment dangerous to his life and its adequate treatment is not available in Jail Hospital. As a last resort, it is asserted that the petitioner may be released for such length of period as is required for his treatment/operation and the bail so granted should stand terminated thereafter.
6. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
7. As for the fact that the petitioner has already been operated upon once earlier for his left kidney, that he is suffering from kidney trouble continuously till now and that there is a legitimate need of its requisite treatment, there appears no dispute. A reference to the record, however, reveals that during the course of hearing of this petition, the petitioner was referred to a Medical Board under the orders of this Court dated 20-4-1991 in order to assess the gravity of sickness. Consequently a Board of four doctors, including Medical Superintendent, District Headquarter Hospital, Mansehra examined the petitioner and vide their report dated 20-5-1991 opined as under:-- "The Board examined the petitioner Mr. Muhammad Bashir son of Fazalur Rehman's and the available investigations were carried out. The Board is of opinion that:-- (1)The patient is suffering from Bilateral Renal Stones, which in due course of time can become serious.
(2)The patient cannot be properly treated in jail.
The patient needs the treatment and opinion of Urologist, which is not available in this Institution."
8. In the light of the last paragraph of the Board's opinion, it was deemed advisable to get the petitioner examined by a Urologist. Accordingly under the orders of this Court, dated 3-7-1991, a two members Board including Dr. Attaullah Shah Bokhari, Urologist, District Headquarter Hospital, Abbottabad, examined the petitioner and submitted its report which runs:-- "Mr. Muhammad Bashir son of Fazalur Rahman was admitted to Urology Ward on 15-7-1991 for investigation. His investigations have been completed including X-rays and Ultrasonography which revealed Bilateral Renal Calculi with Hydronephrosis and needs treatment for it. He has already been operated in August 1988 for left side Renal Stones and there is recurrence of stones in the left kidney. Since he is stone former -and at present both kidneys are hydromephrotic, he is advised Extra-Corpeal Shock Waves Lithotripay (E.S.W.L.). This facility is not available in the District Headquarters Hospital, Abbottabad.
9. From a collective study of the reports of both the Boards what emerges is that since his earlier application, the condition of the petitioner has deteriorated and no substantial relief of the ailment, the petitioner is suffering from, has taken place. The reports also are indicative of the fact that the facilities for adequate treatment of the disease are neither available in jail or for that matter in the Hospitals at Mansehra or Abbottabad and he shall have to be treated somewhere else.
10. This being so, I am clear in my mind that in matters of such delicate ailing internal organs of an accused; it would not be open to a Court to qualify or quantify his sickness; more particularly when sickness, as accused person is suffering from, is likely, as in the instant case, to endanger his life. I seek strength in this regard from the case of Mir Aftab v. State reported as 1979 SCMR 320. Nor do I subscribe to the view of releasing the petitioner, in such cases, for a specified period; for a short and simple reason that in surgical treatment, it is the post operation care which is extremely important for an effective and successful operation and any minor lapse in this regard is likely to render the whole exercise in futility.
11. Testing on the touchstone of the foregoing, I have no hesitation in holding that in the prevailing circumstances, if the petitioner is left to remain behind the bars till the conclusion of his trial, his condition may deteriorate to a point of no return and accordingly he has rightly sought protection of the first Proviso to section 497(1), Cr.P.C. For his release on bail.
12. Resultantly, while I allow this petition, I hereby order that the petitioner shall be released on bail on his furnishing bail bond in the sum of Rs.3,00,000 (Rupees three lacs) with three local sureties of means in the like amount each to the satisfaction of the District Magistrate Mansehra.