1. ' This application for bail arises out of the circumstances as mentioned below. On 23-6-1993 accused Arshad Mehmood, a Police Constable, was detailed for guard duty at Block 4 of Sindh Secretariat. Constable Qamar Raza was also on duty on the said date and so also the complainant and Muhammad Qasim, A.S.I. Constable Qamar Raza wanted to go for purchasing food from a hotel and for that purpose he came to A.S.I. Muhammad Qasim to seek his permission. Muhammad Qasim told him to seek permission from his guard commander viz. Accused Arshad Mehmood, but Qamar Raza told Muhammad Qasim that he has been earlier disgraced on such request by Arshad Mehmood before the public and, therefore, he will not seek permission from him. He, however, went to purchase the food. Thereafter he was present at guard-room alongwith the police constables Muhammad Asif and Mistiri Khan. At about 9-00 p.m. Accused Arshad Mehmood came to the Guard Room to drink water. At that time there was exchange of hot words between Arshad Mehmood and Constable Qamar Raza. Arshad Mehmood flew into a rage, took out his T.T.
2. Pistol from the belt and immediately fired at Qamar Raza in presence of P.C. Muhammad Asif, P.C.
3. Mistiri Khan, P.C. Muhammad Tariq, P.C. Muhammad Ashraf and H.C. Sartaj Ahmed. Qamar Raza was removed to the hospital but he died. The case was registered at the instance of A.S.I.
4. Muhammad Qasim. Accused Arshad Mehmood was arrested on the same day. The weapon of offence was recovered from his possession. He is facing trial in the Court of VIIth Additional Sessions Judge, Karachi. An application for bail moved before the trial Court has been rejected and thereafter the present application was filed.
5. ' I had heard Mr.M. Ilyas Khan, learned Advocate for the applicant and Syed Amjad Ali Shah, AA.-G.
6. For the State on 5-10-1994 and had rejected this bail application, by a short order. The reasons for this order are being given by this order.
7. ' Mr. M. Ilyas Khan in his arguments laid stress on the point that the applicant was a sick person, within the meaning of section 497(1), Cr.P.C. And that therefore, he was entitled to bail. Mr. M. Ilyas Khan has filed true copy of the statement of Dr. Sultan Mehmood, recorded by the trial Court in connection with the bail plea of the applicant, and relied upon the fact that the doctor has stated that the applicant is a sick person in view of the statement of the doctor, and that he therefore, deserves to be released on bail. The learned counsel for the applicant in support of his contention has relied upon the following cases:--
(1) Haji Mir Aftab v. The State 1979 SCMR 320,
(2) 1990 P Cr. L J 326.
(3) Maqsood v. Ali Muhammad 1971 SCMR 657,
(4) Abdul Rahim v. The State 1994 P Cr. L J 1766, and
(5) Muhammad Bashir v. The State 1991 P Cr. L J 2422.
8. ' Mr. S. Amjad Ali Shah, A.A.-G. Has not supported the bail plea of the applicant and has opposed the request of the applicant for his release on bail.
9. ' I have given my due consideration to the arguments advanced at the Bar and the facts of the case borne out from the record. It will be seen from record that at first an attempt was made by the defence in the trial Court to show to the Court that the applicant was of an unsound mind, and an application under section 465(1), Cr.P.C. Was moved. In response to this application when the applicant was referred for the medical treatment and certificate, two doctors who were supposed to be specialists belonging to the Neurology Ward of the Civil Hospital, Karachi examined the applicant and certified that the applicant was not of unsound mind, but he was found to be a patient of hysterical tremors, secondary to depression and anxiety. The trial Judge however observed in his impugned order:- "from the appearance of accused also during the trial of the case, he does not appear to be of unsound mind, therefore, due to these reasons I do not find any merit in this application and the same is dismissed."
10. ' After dismissal of application under section 461(1), Cr.P.C., the application for bail under section 497, Cr.P.C. Was pressed. The trial Judge, in order to decide the application for bail which was being pressed in view of the earlier medical report of the applicant on the grounds that the facility for the treatment of the applicant was not available in the jail hospital, sent for further report from the Superintendent, Central Prison, Karachi. In this respect Superintendent, Central Prison, Karachi, informed the trial Judge vide his letter, dated 11-8-1994 in the following words:-- "I am to refer to your letter, dated 3rd August, 1994 it is stated that one Medical Officer Specialized in this disease use to visit this prison on deputation from Lyari Government General Hospital, Karachi.
11. All the prisoners suffering from the said disease are being provided necessary treatment at this prison. However, in case of expert opinion/test the prisoners as and when advised, are also sent outside the Government hospitals viz. Civil Hospital and J.P.M.C."
12. ' The report of the Medical Superintendent thus appeared to the effect that whenever the need be, the applicant shall get the necessary medical treatment. Learned counsel for the applicant placed reliance on the cases noted above, and the same were minutely considered. In the case of Haji Mir Aftab v. The State reported in 1979 SCMR 320, it was observed that it was a sudden and unpremeditated fight. The accused was an old man of 70 years suffering from duodenal ulcer and eye trouble owing to chronic trachoma. In the second case relied upon by the learned counsel for the applicant reported in 1990 P Cr. L J 326, bail was granted to a 65 years old lady suffering from "Ostereo arthritis knee joint", "spondi losis" of lower cervical spine, enlarged liver, piles, hypertension and breathlessness. In this case it was also on record that the facilities for the treatment of these diseases, especially for ladies, were inadequate. Her blood pressure was also found to be 180/110 m.m. In this case his Lordship Justice Qaiser Ahmed Hamidi had observed "there is nothing in law which even faintly suggests that a Judge has to surrender his judgment to the opinion of an expert." Similarly the case of Maqsood v. All Muhammad and another 1971 SCMR 657, is distinguishable from the present case. In the case report of the doctor shows that accused was 75 years of age, was suffering from active arthritis and urinary infection, hypertension, swollen and painful joints. Under these circumstances, discretion exercised by the High Court in granting bail to the accused was not interfered with when the complainant had sought the indulgence of the Supreme Court to cancel the bail. In the case of Abdul Raheem v. The State 1994 P Cr. L J 1766, the accused who was granted bail was suffering from epilepsy since 1971. His certificate indicating that he was advised to adoid mechanical work and that he needed medical supervision for the control of epilepsy, and that this disease could be fatal for him if regular appropriate medication was not provided to him. In the case of Muhammad Bashir v. The State 1991 P Cr. L J 2422, the accused was suffering from Bilateral Renal Stones, which in due course of time can become serious and it was certified that he could not be treated in jail. It was observed that the accused was suffering from the ailment of delicate internal organs and therefore, was granted bail. In the case reported in 1978 SCMR 191, Banaras v. The State, it was found that the accused was suffering from idiopathic epilepsy occurring in side the jail, and it was found that it was difficult for the jail authorities to look after this accused and therefore, bail was granted. Therefore, the result is that all the cases cited by the learned counsel for the applicant stand on a distinguishable ground. The manner in which this incident had taken place and the position of the applicant, being a member of law enforcing agency, cannot be ignored at the time of considering request for the bail of the applicant. Besides, the opinion of the doctor Sultan Mehmood, who was examined in the Court suggests that the "hysterical tremors" could be secondary to the state of depression and anxiety. After committing the murder the applicant is in jail and the applicant might have been attacked by "Depression" and "anxiety". However, it is not such a disease which could not be treated by the jail doctors or by the other doctors while the applicant remained inside the jail. The doctor, Sultan Mehmood, also has not stated that the disease is detrimental to the life of the applicant and in case he is not released on bail from the jail he may die. Under these circumstances I do not feel inclined to find that discretion be exercised in favour of the applicant in this case against whom otherwise there is overwhelming evidence for having caused the murder. Therefore, this application is rejected. In any case, I feel that getting of medical treatment while in jail, is the right of the applicant and the Medical Superintendent, Central Prison, Karachi East is directed to provide all possible medical treatment to the applicant including consultation with Specialists in case the jail doctors found such consultation necessary for the effective treatment of the applicant. If there is any other adverse report about the health of applicant in future, the applicant is at liberty to move the trial Court for the bail in light of such fresh medical report which may entitle the applicant legally, to be released on bail.