1. ' SAEEDUZZAMAN SIDDIQUI, J.--The petitioner is seeking leave to appeal against the judgment of a learned Judge in Chambers of Peshawar High Court, D.I. Khan Bench, dated 2-10-1994 whereby the learned Judge refused to enlarge the petitioner on bail on medical ground.
2. ' The petitioner is involved in a case under section 302/34, P.P.C. (F.I.R. No,511 dated 11-5-1994 of Police Station City, Bannu) for committing. Murder of one Muhammad Ayub. The petitioner claims to have suffered a firearm injury on his right fore-arm during the incident and lodged F.I.R. No,510, dated 11-5-1994 in the same police station earlier, regarding the incident. The petitioner applied for grant of bail on medical ground. The trial Court on the application of the petitioner/accused directed constitution of a Medical Board for examination of his condition. The petitioner was, accordingly, produced before the Medical Board consisting of Dr. Ghulam Farid Khan, President, Standing Medical Board/Medical Superintendent, Civil Hospital, Peshawar, Dr. Prof. Ziaul Islam, Head of Department, Khyber Medical College, Peshawar, and Dr. Zahid Farooq, Medical Specialist, Hayat Shaheed Teaching Hospital, Peshawar, as Members on 8-6-1994. The Standing Medical Board after examining the petitioner decided to refer the petitioner for an expert opinion of Dr. Umar Ali Khan, Professor of Surgery, Incharge Surgical 'C' Unit PGMI/LRH, Peshawar regarding his condition and injury. Professor Dr. Umar Ali Khan, accordingly, after carrying out a detailed examination of the petitioner/accused forwarded his comments on 9-6-1994. The Medical Board, thereafter, again examined the petitioner/accused in the light of the opinion given by Dr. Umar Ali Khan on 16-6-1994 and agreeing with the findings of Dr. Umar Ali Khan, forwarded its report to the Court. The sum and substance of the report of Standing Medical Board was as follows:-- "The Radial Nerve injury will definitely need surgical intervention though this is a difficult area for exploration of radial Nerve and its branches and invariably impracticable. In such situation, this young fellow will need tendon and muscle transplant, from flexor compartment to the extensor compartment, to help maximum functions of his hand.
3. ' This whole affair is technically very difficult and highly skilled job, has practically no scope for treatment in Jail Hospital or even in District Hospital.
4. ' Its results are highly unsatisfactory in certain specalised centres such as Peshawar or other areas in this country."
5. ' The trial Court relying on the opinion given by the Medical Board constituted to examine the accused, enlarged him on bail in the sum of Rs,2 lacs with two sureties in the like amount by order dated 26-6-1994. The complainant moved the Sessions Court for cancellation of the bail which was allowed by the Additional Sessions Judge, Bannu by Order dated 7-9-1994. The petitioner then approached the Peshawar High Court, D.I.Khan Bench, for grant of bail on medical ground but the learned Judge in Chambers refused to interfere with the order of learned Sessions Judge and declined to enlarge the petitioner on bail giving rise to the present petition.
6. ' After hearing the learned counsel for the petitioner, the complainant and the State, we converted this petition into appeal and it is disposed of as under.
7. ' It may be mentioned here that the Medical Board constituted to examine the petitioner/appellant gave a definite and categorical opinion that there was no scope for treatment of the appellant in jail or even in the District Hospital. It was also opined by the Board that even in a specialized centre of the Province and other such centres of the country, the result of treatment has not been very satisfactory and, therefore, it was recommended by the Board that the appellant being a young man, he should proceed abroad for immediate treatment of the injury to avoid disability. It appears that during the hearing of the bail cancellation application before the Sessions Judge, a definite opinion was asked for from Dr.Umar Ali Khan under whose treatment, the appellant at the relevant time was, whether he can appear in the Court or not? In reply to the query of the Court, Dr. Umar Ali Khan by his letter dated 30-7-1994 sent the following communication to the Administrator, Government Lady Reading Hospital, Peshawar:- "To ' The Administrator, ' Government Lady Reading Hospital, Peshawar.
8. ' Subject: BAIL CANCELLATION PETITION NO.141 OF 1994 (DOST ALI v. MUHAMMAD YOUSAF KHAN)
9. ' This is to certify that Mr. Muhammad Yousaf Khan is admitted in LRH Bolton Block Room No,20 since 12-5-1994 with F.A.I. To him upper third (Rt) fore-arm associated with Radial Nerve injury and wrist drop.
10. ' His wound was excised, bleeding points secured and has healed well. He is still in clocked up pop with wrist in extension and is receiving physiotheraphy for his Radial Nerve injury and is waiting for a definite operation, which he needs urgently and fairly soon.
11. ' However, he has developed severe burning sensation in his right hand, for which he is receiving the following treatment:
(1) Inj. Nourobion O.D. I/V
(2) Inj. Voren I/M B.D
(3) Inj. Valium 10 mg. B.D. I/V ' Being in severe pain and sedated Mr. Muhammad Yousaf Khan is not able to attend the Court in person.
12. (Sd.)
13. ' PROFESSOR UMAR ALI KHAN Incharge Surgical 'C' Unit, PGMI/Lady Reading Hospital, Peshawar."
14. ' The learned Additional Sessions Judge treated the above letter of ' Professor Umar All Khan a final opinion of the doctor and reached the conclusion that the sickness with which the appellant was suffering, was not such as would fall within the definition which would entitle the appellant to be enlarged on bail on the ground of sickness. The precise observation of the learned Additional Sessions Judge in this regard was as follows: "The observations referred above if compared with the opinion given in the beginning will suggest that there is simple complication i,e, the superifoial sensation dorsal right hand were missing. This type of illness, I think does not come within the definition of infirmity or sickness, particularly when the injury was of simple nature in the sense that bone has not been fractured nor deep muscles were cut. Even the final opinion of the doctor given on 30-7-1994 does not suggest that the respondent is sick of the nature that it comes within the definition of infirm person. Rather the opinion suggest that sensation which the right hand had lost had come back because the doctor has observed that the patient has developed burning sensation in his right hand."
15. ' The learned Judge in Chambers after referring to the report of the Board remarked that this report nowhere shows any fracture of the bone which developed into the condition which rendered the patient infirm or suffering from the sickness of the nature which entitled to the concession of the bail. These were the observations of the learned Judge in Chambers in the impugned order:-- "The report of the Board nowhere shows, that the injury which he sustained initially and without mention of any fracture of the bone etc. Which has developed into such a condition as a result of which the patient is infirm or is suffering from a sickness of the nature to entitle him to the concession of bail. The learned Sessions Judge has extensively examined the report of the Medical Board, and also the conduct of the accused as the order sheet of the file of the learned Sessions Judge shows, he was of the opinion that this is not the sickness of the kind in which the concession of bail is to be extended...
11. The above discussion reveals that what is the nature of the injury, what is the value of instant report of the Medical Board what is the conduct of the accused-petitioner and whether the learned Sessions Judge was justified to interfere with the order of the Magistrate and specially when the accused-petitioner himself has absented and avoided appearance before the Court, would be available to him to get the benefit of the same by not obeying the lawful process and made a point available to him that he was not before the Court, so such an order could not be passed and the above observations would be an answer to all the points raised by the learned counsel for the accused-petitioner. The contention of the learned counsel that according to report of Medical Board the petitioner requires the treatment abroad, is not maintainable, as observed above, the authenticity of very report is doubtful so any recommendation in it will be looked at with same view."
16. ' We have heard the learned counsel for the parties at length and are of the view that the conclusion arrived at by the learned Judge in chambers that the petitioner did not suffer from a disease of the kind which made him so infirm or sick that he was entitled to the concession of the bail on medical ground, does not appear to be correct. The learned Judge in Chambers was also much swa yed by the fact that the petitioner/appellant did not appear during the proceedings of the bail cancellation application before the Additional Sessions Judge in spite of notice for personal appearance by that Court. However, in arriving at this conclusion the learned Judge in Chambers failed to notice that a special reference was made to Dr. Umar Ali Khan to certify whether the appellant was in a position to attend the Court or not and in reply thereto he informed the Court that the appellant was not in a position to attend the Court proceedings, vide letter dated 30-7-1994 which we have already reproduced earlier. This letter of Dr. Umar All Khan fully explained the reasons for non-attendance of the appellant in Court during the proceedings of the bail cancellation application before the Sessions Court. The learned counsel for the complainant very vehemently argued before us that the Board did not give any independent opinion on the condition and injury of the appellant but only reproduced in its report dated 16-6-1994 the opinion of Dr. Umar Ali Khan who was alleged to be related to the appellant. It is also contended by the learned counsel for the appellant that the said doctor, Umar Ali Khan, has in fact prevailed upon the members of the Board to give a favourable opinion regarding the condition of the appellant.
17. From the material before us, we are unable to find any substance in the contention of the learned counsel for the complainant. The Medical Board for examination of the injury and condition of appellant was constituted under the orders of the trial Court which directed the Director-General, Health Service, N.-W.F.P. To constitute a Medical Board to examine the accused appellant and report with regard to his condition. We have already reproduced the names of doctors who constituted the Board. They were Dr. Ghulam Farid Khan, M.S., Civil Hospital Peshawar, President of Standing Medical Board, and Dr. Zia-ul-Islam, Head of Department of Khyber Medical College, Peshawar and Dr. Zahid Farooq, Peshawar as Members. Professor Dr. Umar All Khan, against whom allegation of bias is made by the complainant, was firstly, not the member of the Standing Medical Board and secondly, it was highly improbable that the Board which consisted of three very senior and highly qualified doctors from three different institutions could be influenced by Dr. Umar Ali Khan to give a favourable report to the appellant/petitioner. Since the case referred to the Board related to surgery, there was nothing unusual on the part of Board to have referred the appellant for an expert opinion of a surgeon, before expressing its own opinion.
18. ' There is no material before us to conclude that Professor Dr. Umar Ali Khan was either in a position or he actually influenced the opinion of the members of the Board while reporting to the Court on the condition of appellant/petitioner. We may point out here that if the Court had any doubt or suspicion about the authenticity of the opinion of the Board, it could have either summoned the members of the Board to satisfy itself as to the correctness of the opinion given by the Board or the appellant could be referred to any other medical expert in that field for a second opinion. In our view without following one of these courses, the Court was in no position to form its independent opinion as to the condition of the appellant nor advisedly it was a safe course for the Court to follow. After reading the opinion given by the Board on the condition of the appellant, we are of the view that it was a highly technical matter, and therefore, the opinion expressed by the Board could not be brushed aside lightly by the learned Judge in Chambers in the absence of any counter- opinion or any medical literature placed before the Court to contradict the opinion given by the Board. We may reproduce here with advantage, the following observations of this Court in the case Usman Khan and others v. The State PLD 1969 SC 293 laying down the scope of authority of the Court to disregard and disagree with the opinion of a medical expert in such cases before it:- "As lengthy arguments were addressed by Mr. Mahmud Ali on the conflict between the medical evidence and the account given by the eye-witnesses, we would like to mention that of late a tendency has grown to discard the testimony of seemingly reliable and natural witnesses to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While we appreciate the anxiety shown by the learned Judges to test the credibility of the eye-witnesses with reference to the circumstances attending upon the commission of the crime, it fails to be said that Judges are not experts in medical science to form a sale opinion on these matters. It is desirable, therefore, as observed by the Judicial Committee in Natha Singh v. Emperor AIR 1946 PC 187 to summon the doctor who examined the injuries or performed the autopsy as a witness and investigate the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert."
19. ' The learned counsel for the complainant relied on the case Misal Muhammad v. The State 1986 SCM R 847 and M. Ismail Shaikh v. The State 1993 SCM R 1460 to contend that the appellant should be referred to any other medical expert to obtain second opinion as to his condition. In the first- mentioned case of Misal Muhammad, the bail granted to the appellant in that case was cancelled by the learned Chief Justice of Peshawar High Court on the ground that the disease with which the appellant was suffering was not one which could not be treated inside the jail premises during fiis custody. This Court referred appellant in that case to a doctor and after receipt of his opinion approved the order of'Sessions Judge by which he had enlarged the accused in that case on bail.
20. In the second case of Ismail Shaikh, Mr. Sajjad Ali Shah, J. (as he then was) relying on the report of the Medical Board, which was produced before the Special Appellate Court of Customs, admitted the petitioner to bail with these observations:-- "5. Now the question arises for consideration whether finding of three medical experts making dignosis of the illness of the petitioner with positive recommendation that he needs medical treatment which may not be possible in jail can be rejected and brushed aside particularly when there is no challenge to the authenticity of the report of the Board that it is factually incorrect or obtained for extraneous consideration. Since there was no challenge, Chairman or Members of the Medical Board were not called in the Court to explain any aspect of the report which was deficient.
6. In a non-bailable case punishable with death or imprisonment for life or imprisonment for 10 years, proviso to section 497, Cr.P.C. Envisages that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such offence be released on bail. Mr. Naeemur Rehman, Standing Counsel for the Federal Government was unable to satisfy us about the sustainability of order of Special Appellate Court rejecting bail in view of positive finding of Medical Board constituted by the Court with the consent of the counsel appearing for the parties particularly when no challenge was made or dispute raised with regard to the authenticity of report of three medical experts.'
21. From the above discussed position it is clear to us that the bail on medical ground 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. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be a ground either to refuse or grant the bail on medical ground. The correct criteria for grant of bail to an accused in a non-bailable case, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialised treatment is needed and his continued detention in Jail is likely to affect his capacity or is hazardous to his life. In the case before us not only there is a categorical statement by the Members of the Board, constituted to examine the condition of the appellant, that there was no possibility of treatment of the appellant's injury even in specialized centres of Peshawar but also in other areas of the country, the Board also recommended immediate treatment of the appellant in a foreign country to avoid disability. We have also on record a letter from Dr Salim Mahmud of 'The Medical Centre, 80 Fortune Green Road, London' addressed to Visa Section British High Commission, Islamabad Pakistan, in which the said doctor after discussing the case of appellant with a specialist had advised the patient (appellant) to reach London for his extensive reconstruction surgery, and fixed his appointment for 25-7-1994. The estimated expenses were given as L7,000 to L8,000. We are, therefore, of the view that in view of this categorical statement made in the report of the Medical Board constituted by the Court for examining the condition of the accused, there is no necessity for calling for any further medical opinion in the case. Keeping in view of the nature of treatment required for the injury suffered by the accused, the trial Court rightly granted bail to the accused. We, accordingly, admit the accused appellant to bail in the sum of Rs,10 lacs with two sureties in the like amount to the satisfaction of the trial Court.