' The petitioner being accused in case F.I.R. No,510 of 1994 under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 registered with Police Station Naulakha, District Lahore has filed this petition for post-arrest bail on the ground that the petitioner has been involved in the case due to enmity; that the case is highly doubtful and as there is no public eye-witness of the alleged occurrence in spite of the fact that the place of alleged occurrence is a thickly populated place. It was next contended that the petitioner is no more required by the police as nothing is to be recovered from him.
2. Learned counsel for the State has hotly opposed the petition. He submitted that 30 grams of heroin was recovered from the petitioner and he was caught red-handed at the spot, therefore, being accused of heinous offence is not entitled to the concession of bail.
3. I have heard learned counsel for the parties and have gone through the police file. Learned counsel for the petitioner was unable, as alleged, to point out any enmity with the petitioner for his false implication. The offence with which the petitioner stands charged falls within the prohibitory clause of section 497, Cr.P.C. Further in case of narcotics, the Courts being an important limb of the State has to put a check while granting the bail to such criminals as in that event it would amount to giving them premium of committing offence. I am in the particular facts and circumstances not minded to exercise my discretion in favour of the petitioner. The bail application is accordingly dismissed.
' The prosecution story as given in the F.I.R. Briefly stated is that complainant's brother Nazir Ahmad (deceased) slept at his Dera after having irrigated his land on his turn of water that night. Early in the morning complainant's servant informed him that his brother Nazir Ahmad had been done to death while he was asleep. The complainant went to the spot immediately and found that his brother (Nazir Ahmad) had been fired at on the backside of his neck. He called out his neighbours, namely, petitioner Allah Rakhia, Hazoor Bakhsh, Rasool Bakhsh and Fida Hussain who were complainant's tenants and asked them about the murder. They, however, demonstrated their complete ignorance about it. Complainant suspected that as Fida Hussain had suspicion that his wife Mst. Allah Wasai, daughter of petitioner, had illicit relations with Nazir Ahmad deceased, his brother might have been killed by the afore-referred accused persons in consultation with each other.
4. During investigation, the police collected evidence of conspiracy, extra-judicial confession and motive against the petitioner. Challan has since been submitted in the learned trial Court and the petitioner is behind the bar for the last more than one year.
4. The learned counsel for the petitioner has prayed for bail on the following grounds:-
(i) That the evidence of conspiracy has mainly been furnished by Abdul Aziz who is servant of the complainant and the deceased. If he had really heard the petitioner and his co-accused hatching a conspiracy to murder Nazir Ahmad there was nothing to prevent him from reporting the matter to the complainant or police.
(ii) That the evidence of extra-judicial confession was recorded after almost two weeks of the alleged occurrence.
(iii) That the petitioner is suffering from tuberculosis and is entitled to bail on the ground of bad health. In support of his argument, while pressing bail on medical ground, he reffered to judgments Sardar Khalid Umar v. The State 1989 M LD 4938 and Ghulam Rasool v. The State PLD 1983 SC 334.
5. The learned counsel for the complainant, on the other hand, has opposed the prayer for bail and submits that the petitioner is connected with the motive part of the prosecution story and that he is being treated properly in jail hospital and there is no justification to release him on bail at this stage. He relied on Zarim Khan v. The State 1980 SCM R 305 to contend that all that the petitioner needed was his treatment by a Specialist and there is no justification for his release on bail if the same treatment can be provided in the jail hospital.
6. I have heard the learned counsel for the parties and have also perused the record.
7. In Zahin Khan v. The State 1980 SCM R 305 to which reference has been made by the learned counsel for the complainant, the petitioner was accused of double murder and for having attempted on the life of Wahid Gull. He was medically examined by a private practitioner, jail doctor and Medical Board which had been constituted to report about his ailment. The High Court had declined him bail on the ground that according to the Medical Board, the petitioner needed only a proper treatment irrespective of the fact whether inside or outside the jail. The order declining bail was found to be neither perverse nor unreasonable by the Honourable Supreme Court and the plea for bail was rejected.
8. In Ghulam Rasool v. The State PLJ 1983 SC 334, the accused who was suffering from tuberculosis was allowed bail and the said disease was considered sufficient to release him on bail on the ground of ill health. Similarly in Sardar Khalid Umar v. The State 1989 M LD 4938, the accused was granted bail as he was suffering from heart ailment and was above 65 years of age. In a recent judgment reported in Malik Muhammad Yousaf v. The State PLD 1995 SC 58, the bail was granted on medical ground and it was observed that "the bail on medical grounds can be granted under section 497, Cr.P.C. If the Court reaches the conclusion on the basis of medical report that the A ailment with which the accused is suffering is such that it cannot be properly treated while in custody in jail".
9. In the instant case, the accused-petitioner was initially examined by the Medical Superintendent, District Headquarters Hospital, Rahimyar Khan who vide his report, dated 17-12-1994 reported as under:-- "Certified that Mr. Allah Rakha son of Khair Muhammad was admitted in T.B./Chest Ward of this hospital since 11-10-1994. He is suffering from Tuberculosis Empyema (right sided) (Pus in pleunal cavity due to Tuberculosis) for which he has to take Anti-tuberculosis treatment for 9 months. In addition pus had to be drained which is being done here. He has been X-rayed today and his Chest X-ray PA. Widow and Lat. View shows collection of pus which needs drainage. Therefore, in our opinion he still needs active treatment in hospital."
10. On 6-3-1995 learned counsel for the complainant requested that the petitioner should be re- examined. The learned counsel for the petitioner did not join issue on this and the petitioner was once again examined and this time by a Board comprising of M.S. D.H.Q. Hospital, Rahimyar Khan, a Physician, a Surgeon and a Chest Specialist. The report of the Board is to the following effect:-- "He is a case of Right sided Empyema (Pus in Pleural Cavity) due to Tuberculosis. He remained admitted in this hospital from 11-10-1994 to 27-2-1995. He has undergone chest intubation and chest aspiration during his stay in the ward. He has been on anti-tuberculous treatment since 15- 10-1994 (for five months) and needs treatment for further four months."
11. The afore-referred report of the Medical Board constituted pursuant to an order of this Court shows that the petitioner remained admitted from 11-10-1994 to 22-2-1995 in the District Headquarters Hospital, Rahimyar Khan and during the stay he had undergone Chest intubation and aspiration. According to the report of the Medical Board, he needs further treatment in the said hospital for another four months.
12. There is nothing in law to suggest that a person can be released on bail only if he is suffering from a terminal or fatal sickness or ailment and is facing death threat. The fact that the petitioner is suffering from tuberculosis and that too of a stage which requires intubation and aspiration of chest for a prolonged period would amply qualify him to be "sick" within the meaning of section 497 of the Criminal Procedure Code.
13. For what has been discussed above, the petitioner is admitted to bail in case F.I.R. No,99/94 of Police Station, Rukkanpur provided he furnishes bail bonds in the sum of Rs,50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.