' JAWAID NAWAZ KHAN GANDAPUR, J.--Petitioner Madad Khan along with accused Baidullah, his step-father and four others Tamas, Attaullah, Muhammad Gul and Momeen was put on trial for offences punish able under section 302/307/148/149, P.P.C., vide F.I.R. No,95, dated 7-5-1967 registered at Police Station, Tehkal, now named Pistakkhara. The petitioner, as alleged by complainant had killed Ghulam Muhammad by firing at him, with a shotgun, and injuring him on the left side of his chest, whereas the other co-accused (since acquitted) had ineffectively, fired at Saleheen, Taus, Halim and Amir Muhammad while accompanying the deceased.
2. , Baidullah, Momeen and Attaullah were arrested on 8-5-1967, 16-5-1967 and 18-5-1967 respectively whereas Tamas and Muhammad Gul were taken into custody on 7-6-1967. They were all tried by the learned Additional Sessions Judge, Peshawar, and, by his judgment dated 7-12-1967, he acquitted them.
3. After the acquittal of his co-accused, Madad Khan, petitioner, surrendered to and get himself arrested by A.S.I. Adam Khan, attached to Police Station, Tehkal, on 4-7-1968. After the completion of the investigation, the petitioner was tried by the Additional Sessions Judge, Peshawar. He explained his abscondence stating that he had gone to Afghanistan to visit the shrines that on hearing that he had been falsely implicated in a murder case, he himself surrendered to the police.
He claimed innocence and stated that he had been falsely implicated in the case by the complainant Captain Mahmud Jan due to differences with his step-father Baidullah (since acquitted). The Additional Sessions Judge, Peshawar, by his judgment dated 3-1-1970, after the conclusion of trial in Sessions Case No,1608 of 1969 titled The State v. Madad Khan accused, convicted the petitioner for having committed the offence punishable under section 302, P.P.C. And accordingly sentenced him to death.
4. The petitioner, feeling aggrieved of the judgment and order of the learned Additional Sessions Judge, filed Criminal Appeal No,9 of 1970 in this Court. ,A Division Bench of this Court consisting of their Lordships Mr. Justice Bashir-ud-Din Ahmad, Chief Justice and Mr. Justice Sher Bahadur Khan, J. Vide judgment dated 26-10-1970 accepted the appeal, set aside the conviction and sentence passed on Madad Khan, petitioner, and ordered his acquittal. They further directed that Madad Khan be set at liberty forthwith provided his detention was not required in connection with any other matter.
5. The complainant, referred to above, then filed Criminal Appeal No,20-P of 1971 before the Honourable Supreme Court of Pakistan. The Supreme Court by its judgment dated 20-12-1980, while allowing the appeal, set aside the judgment of the High Court and restored that of the trial Court directing the arrest of Maded Khan, respondent, to undergo the unexpired period of sentence.
6. Petitioner Madad Khan thereafter filed before the Supreme Court of Pakistan Criminal Review Petition No,12 of 1993 which was, however, not allowed by .Its judgment dated 24-8-1993.
7. It appears from the record that a Writ Petition bearing No,688 of 1993 was then filed by petitioner Madad Khan in this Court and while accepting it, a Division Bench of this Court consisting of their Lordships Mr. Justice Abdul Karim Khan Kundi, Chief Justice and Mr. Justice Muhammad Khiyar Khan, J., on 28-11-1993, made the following weighty observations:-- "We shall, therefore,, accept this writ petition and hold that the petitioner is entitled to the general amnesty and the death sentence awarded to him by the Supreme Court on 20-12-1980 is prior to the date of 6th of December, 1988 and his death sentence stands commuted to imprisonment for life. The petitioner shall be taken out of the death cell in order to serve the punishment of the imprisonment for life."
8. The petitioner Madad Khan has once again filed the instant writ petition stating therein that due to old age, infirmity and critical illness he is permanently incapacitated from committing crime of any nature specially like the one for which he had been convicted. Therefore, he had applied to the Secretary to Government of N.-W.F.P., Home and Tribal Affairs Department for his premature release under Rule 143/146 of the Prisons Act (Act IX of 1894), inter alia, on the grounds that the petitioner being an infirm old man of 75 years with half dead body was lying in the Central Jail Hospital, Peshawar and consequently was referred by the Additional Sessions Judge, Peshawar, to the Lady Reading Hospital, where he was medically examined by the Specialist, at the instance of Director of Health, Peshawar, with the following remarks:-- "Severe disease of paralysis, mental impairment, Rt. Facial Palsy, Dysphasia. Few crept at both lung basis, stroke Rt. Sided and congestive Cardiac failure. Photo copy of medical certificate is attached."
9. The petitioner further contended that the disease mentioned above was likely to prove fatal if he was to remain in prison and that there was every apprehension of loss of his life due to lack of adequate medical facilities at Jail Hospital. It was also contended that if the petitioner was released from the prison, there were reasonable chances of his recovery and that in the present state of health as described above, he was not capable to embark upon any criminal venture, and that he should be released from Jail. The petitioner's application, it appears, was also examined in the Home and Tribal Affairs Department with the following effect:-- "Reference your application 'dated 30-1-1994, on the subject noted above.
The case has been examined in this Department, considered and I A filed."
10. This very order of the Government of N.-W.F.P. Home and Tribal Affairs Department is now subject of challenge by the petitioner through this writ petition as stated earlier.
11. Mr. Abdul Latif Khan Afridi, Advocate, learned counsel for the petitioner and Malik Hamid Saeed, Additional Advocate-General for the State present and heard. We have gone through the record of the case carefully, with the assistance of the learned counsel for the parties.
12. Arguments on the writ petition were partly heard on 21-3-1995 and we considered it desirable to see the physical condition of convict-petitioner ourselves. Accordingly the Additional Advocate- General was directed to arrange for his production before us on 22-3-1995. The petitioner was brought by Ibrahim Constable and we had the opportunity, of observing his bodily condition.
13. It may be stated at the very outset that the learned Additional Advocate-General submitted at the Bar that if this writ petition is dismissed then the convict petitioner would be removed immediately either to the Lady Reading Hospital or Khyber Teaching Hospital, Peshawar, for proper specialised medical treatment. On the other hand, the learned counsel for the petitioner submitted that the petitioner is entitled to be released under Rules 143/146 of the Prisons Act, 1894 not as a matter of grace but as a matter of right, in that, these rules were framed by the Legislature in its wisdom and were not without justification.
14. We do not find ourselves in agreement with the contention of the learned counsel for the petitioner. In this respect, it would not be out of place to reproduce here the report of the Standing Medical Board dated 20th April, 1994 which is to the following effect:-- "The Standing Medical Board consisting of the following members assembled in the office of the Medical Superintendent, Civil Hospital, Peshawar on 20-4-1994, to examine Mr. Madad Khan accused.
' The Standing Medical Board has examined the accused who is suffering from Generalized Cerebro Vascular Disorder with uncontrolled Hypertension Impaired Mental Status and Right Hemiplegia. He is dis-orientated in space, time and person. He has also been examined by Dr. Pir MuhamMad Consultant Physician PGMI/Lady Reading Hospital, Peshawar whose report is also attached. The Standing Medical Board is of the opinion that he needs proper hospitalization us)." and treatment. (Underlining is by {{TABLE}} (Sd.)
(Dr.Prof. Zia-ul-Islam), Eye Specialist and Head of Department Khyber Medical College, Peshawar (Member).
(Sd.)
(Dr. Zahid Farooq), Visiting Physician PGMI, Lady Reading Hospital, Peshawar (Member).
Station Peshawar dated 20-4-1994. (Sd.)
(Dr. Ghulam Farid Khan), President Standing Medical Board/Medical Supdt., Civil Hospital, Peshawar {{TABLE}}
15. After having gone through the record of the case and hearing the learned counsel for the parties we are of the considered view that, in the circumstances of this case and keeping in view the opinion of the Standing Medical Board reproduced in para. 10 ante, the petitioner should be shifted to the Lady Reading Hospital, Peshawar or Khyber Teaching Hospital immediately for affording him the requisite specialised medical treatment. This direction is consistent with the observations of Medical Board, which is net-shell, speaks that the petitioner needs proper hospitalization and treatment. Since the malady pointed out is capable of treatment, it cannot justify the release of the petitioner from jail.
16. With the above observations/directions this writ petition is dismissed.