ORDER TASSADUQ HUSSAIN JILANI, J.- The petitioner along with two others were proceeded against vide FIR no. 99/94 registered under sections 302/109/34 PPC at Police Station Rukkanpur, Rahimyarkhan.
2. The prosecution story as given in the FIR 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 back side 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 were 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.
3. 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 die 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 repenting 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,
(ii) 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 referred to judgments 1989 MLD 4938 (Sardar Khalid Umar Vs. The State) and PLJ 1983 Supreme - Court 334 (Ghulam Rasool Vs. The State).
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 1980 SCMR 305 (Zarin Khan Vs. The State) 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 1980 SCMR 305 (Zarin Khan Vs. The State), 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 has 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 Hon'ble Supreme Court and the plea for bail was rejected.
8. In PLJ 1983 Supreme Court (Ghulam Rasool Vs. The State), 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 Similarly in MLD 1989 page 4938 (Sardar Khalid Umar Vs. The State), 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 PLD 1995 Supreme Court 58 (Malik Mohammad Yousaf Vs. The State), the bail was granted on medical ground and k 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 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, Rahimyarkhan who vide his report dated 17.12.1994 reported as under:- "Certified that Mr. Allah Rakha son of Khar Muhammad was admitted in T.B./Ghest Ward of this hospital since 11.10.1994. He is suffering from Tuberculosis Empyema (Right sided) (Pus in pleural cavity due to Tuberculosis) for which he has to take Anti tuberculous treatment for 09 months. In addition pus has to be drained which is being done here, he has been X-rayed today and his Chest X-Ray PA vide & Lat. New shows collection of pus which needs drainage. Therefore, in our opinion he still needs active treatment in hospital.
10. On 63.1995 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. DHQ Hospital, Rahimyarkhan, 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 Tuber-culosis. 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 for 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, Rahimyarkhan and during dm stay he had undergone Chest Intubation and aspiration.
According to the report of the Medical Board, he needs further treatment in the said hospital few another for 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 tubercularise and that too of a stage which requires intubation and aspiration of chest for a prolonged period would amply qualify him to be 'rick' within the meaning of section 497 of toe Criminal Procedure Code.
13. For what has been discussed above, the petitioner is admitted to bail in case FIR No. 99/94 of Police Station Rukkanpur provided he furnishes bail bonds in the sum of Rs30,000/- (Rupees fifty thousand only) with two sureties each in toe like amount to the satisfaction of the learned trial Court.