' The instant application was moved on behalf of applicant Nooruddin to seek an order of bail on the ground of sickness. The applicant has been booked in an F.I.R. No,28 of 1994 registered at Police Station Soldier Bazar, Karachi under sections 17(2), 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 333/34, P.P.C.
2. Brief facts, as narrated in the F.I.R. And charge-sheet of the case, can be summarised as under:
(i) On 4-2-1994 at 9-00 hours (means in broad daylight) four young persons entered in a bungalow No,185/1 situated at Nishter Road Garden East, Karachi after subduing a watchman namely Abdul Rahman.
(ii) Ladies were pushed aside on the strength of fire-arms by the dacoits and then they started searching the valuables.
' One member of the family, namely Suleman, succeeded to inform the police control phone No,15.
Thus, police mobiles reached the spot and surrounded the bungalow. The accused, realizing this grave situation, tried to escape by making the ladies as their shields as well as by starting firing upon the police.
(iv) Firing and counter-firing took the life of one Head Constable namely Saleh Muhammad Bhatti while others were injured. Present applicant was arrested when he was seriously injured. Remaining co-accused made their escape good. It was believed by the police that one escaped dacoit was in injured condition. It appears that the said dacoit died due to those injuries because his dead body was left in Jinnah Hospital by some unknown persons. His name was revealed as Behroz Khan.
Applicant Nooruddin disclosed the names of remaining two absconding accused as Hakim Shah and Akbar Natho but they were stated to be absconders till date.
(v) The police recovered one revolver from the accused and also seized one mauzer from the compound of bungalow along with other articles including one Suzuki Alto Car.
3. It is necessary to point out that the applicant had failed to achieve his desire of being released on bail in an earlier round of his bid on 12-12-1994 when his learned Advocate did- not press his bail pleas after realizing the seriousness of allegations against the petitioner and preferred to subsist upon directions of this Bench according to which the petitioner could repeat his bail application after examination of at least two witnesses from the police and two from the inmates of house where the incident of Haraabah had taken place.
4. Instead of availing benefit of directions issued by this Bench, the petitioners started fresh efforts to get his desired results. Fresh applications for bail were moved before the trial Judge but the same were not allowed. It is important to point out that opening sentence of the last order of dismissal dated 14-3-1995 passed by the learned trial Judge (1st Additional Sessions Judge, Karachi) runs as under:- "This order will dispose of third bail application filed by the petitioner... ... ..."
' The said order also discloses, in its ending paras. That on 1-3-1995, three witnesses namely (i)
Suleman, (ii) Amiruddin and (iii) Abdul Rahim were present in the Court but the defence counsel was not available. Result was thus obvious. No witness could be examined and the matter was adjourned.
5. Without disclosing the abovementioned realities the petitioner, this time, in his second round of bid to get the desired result moved the instant application solely on the ground of sickness by invoking first proviso to subsection (1) of section 497, Cr.P.C. It may also be not out of place to mention that earlier Bail Application No,1094/94 contained a plea that the petitioner had sustained injuries while he was passing by the site of incident but unfortunately he has been involved by the police in order to get reward from higher authorities by showing the present applicant arrested on the spot. Such kind of plea was nothing but a good defence plea to controvert the .Stand of prosecution as stated in the F.I.R. Only to find out real facts, directions had been issued by this Bench on 12-12-1994 particularly on the wishes of the learned Advocate for the petitioner, that the trial Court should record evidence of at least 4 eye-witnesses (2 from the police and 2 from the house-matts where incident took place) within a period of four months. But, as pointed out in para. 4 above, when three witnesses appeared before the trial Court on 1-3-1995, the learned Advocate for the petitioner did not appear in the Court. I think that the trial Court could record examination- in-chief of those witnesses on that date. The defence Advocate could be provided opportunity to cross-examine the witnesses on the next date of hearing.
6. It appears that the applicant is avoiding to proceed with this case under one pretext or the other unless he is released on bail and as a last resort he preferred this bail application on the sole ground of sickness. Hence I would like to deal with this fresh ground in detail to some extent. When this matter was tabled before me on 13-4-1995 no proper report was placed on record in support of this new assertion, therefore, Chief Medical Officer, Central Prison, Karachi was asked to attend this Court with his record. On 20-4-1995 Dr. Munawar Ahmed appeared in the Court and stated that the applicant was sent to J.P.M.C. Hospital several times but he was not admitted by the concerned Surgeon. However, nothing was shown by the Chief Medical Officer from his record to prove his claim. I, therefore, passed a detailed order to know the real facts regarding treatment of the accused. In response to that order, the applicant was produced before Captain Rashid A.
Chaudhry, Professor of Surgery on 23-4-1995, who after examining the applicant sent the following report on 24-4-1995: "I have examined this patient on 23-4-1995 in W.26. This man was admitted in Ward on 4-2-1994 and was operated for gunshot wound as medico-legal case he remained hospitalized till 28-3- 1994. Later on he was discharged under an advice to maintain colostomy bag.
' This is the first time we are seeing this patient after discharge so there is no question why he was not admitted in J.P.M.C.
' The patient has been examined first time after discharge, Colostomy is working satisfactorily.
Patient is in normal good health, wound has healed.
' Now patient needs only dealing of Colostomy which at present is not an urgency and so can be dealt at any convenient time. Patient is referred back.
(Sd.)
CAPT. RASHID A. CHAUDHRY, Professor of Surgery, J.P.M.C., Karachi 24-2-1995."
' On 7-5-1995, the learned counsel for the applicant insisted to get views of the Chief Medical Officer in respect of the views expressed by the Professor of Surgery. Although, it was not necessary, rather it seemed to me to be an awkward request, yet only for the satisfaction of the learned Advocate I called the Chief Medical Officer who, now being more cautious than before, submitted in writing that: "Though his life at present is not in danger, but due to Colostomy bag (stool bag) he is leading unnatural and inconvenient life because he has to carry stool beg at the time with him at the side of abdomen."
' The remaining portion of the submission made by the Chief Medical Officer is nothing but only a commentary of the above lines. The report of the Surgeon was not controverted.
' In spite of this report the learned Advocate did not like to drop his insistence, submitted a list of a few cases reported in (i) PLD 1985 Lahore 68, (ii) 1986 SCMR 847, (iii) 1987 PCr.LJ 818, (iv) 1987 PCr.LJ 1311 and 1991 PCr.LJ 2422 and urged that 1st proviso to section 497(1), Cr.P.C. Is attracted in the case of present applicant in the light of observations made in the referred cases notwithstanding to the report of doctors. It left me with no other alternative but to judge the case of present applicant on the basis of observations made in the cases referred by him.
7. ,Before I touch these cases, I consider it necessary to explain the scope of section 497, Cr.P.C.
Which relates to matters of bail. This section had been dressed with several important amendments introduced by now and then since its promulgation in 1898. Analysis of this section, as it exists in its present form, brings into light the following details of concession, rights or discretions attached with the grant of bail:--
(i) Accused shall not be released if there appear reasonable grounds for believing that the accused had been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years except in certain circumstances and unless the prosecution is given notice to show cause why he should not be so released (section 497(1), Cr.P.C. Read with its second proviso).
' Release of an accused on bail has become a statutory right after the expiry of specified period after promulgation of Ordinance 71 of 1979 (Code of Criminal Procedure (Second Amendment)
Ordinance) notwithstanding to the bar contained in subsection (1) of section 497, Cr,P.C. (third proviso).
' However, this right was curtailed by another Ordinance XXXII of 1983 on 26-124983, in the case of hardened and desperate or dangerous criminals (fourth proviso).
(iii) Accused shall be released or refused to be released on bail on the basis of tentative assessm ent of proposed or recorded evidence, at any stage of the case, after finding out whether the case falls within the ambit of further inquiry or not (497(2), Cr.P.C.)
(iv) Accused may be released on bail by use of judicial discretion by the Court by invoking first proviso to subsection (1) of section 497, Cr.P.C. This provision is the same which has been relied upon by the learned Advocate for the applicant.
(v) Although first proviso to section 497(1), Cr.P.C. Provides certain exceptions yet their invocation by the Courts may not be justified in the cases of those accused persons who fall in the trap of fourth proviso to section 497(1), Cr.P.C. Because when the said proviso takes away even 'the right' of release of an accused then discretion cannot be used for releasing an accused by permitting the word 'may' used in the first proviso to override the word 'shall' used in the fourth proviso to section 497(1), Cr.P.C. But there may be certain exceptions within exceptions for invoking the said proviso where the Courts are competent to use their discretion.
' In the light of inferences as drawn above, I would like to analyse the averments of learned Advocate for the applicant by taking into consideration all the judgments referred by him as well as a few other cases too.
8. Coming to the referred cases:
(a) The case of Muhammad Ismail v. The State reported in PLD 1985 Lahore 68 was related to an application under section 426 read with section 497,' Cr.P.C. i.e. Release on bail after conviction. The appellant in that case was on bail prior to his conviction under section 302, P.P.C.
' This case is neither authoritative nor persuasive for this Bench because the case of present application is not a case after conviction. Moreover, the case of present applicant is under section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance which is neiiher bailable nor compoundable while the cases under section 302, Qisas and Diyat Ordinance (previously section 302, P.P.C.) have become compoundable. Besides the above, the applicant in the referred case was suffering from Bilateral Pulmonary Tuberculosis, which, as per report of Medical Board, was a serious disease and likely to continue for indefinite period. The nature of murder under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance affects the society. At large.
This type of murder is totally different from a murder under section 302, P.P.C. Or 302, Qisas and Diyat Ordinance. The case of applicant cannot be equated with any of the case where the murder was attracted by section 302, P.P.C. Or Qisas and Diyat Ordinance.
(b) In the case of Misal Muhammad v. The State reported in 1986 SCMR 847, the applicant charged under section 302/34, P.P.C. Was granted bail by Sessions Judge, Mardan which was cancelled by the Chief Justice, Peshawar High Court. When the case came before the Supreme Court, the applicant was referred to be examined by Heart Specialist. In consequences to that reference Medical Certificate from Assistant Professor of Cardiology disclosed that the applicant was suffering from severe Hypertension Ischaemic disease and chronic obstructive pulmonary disease which needed continuous medication and regular follow up for control of high blood pressure and heart disease. In these circumstances the Hon'ble Judges of the Supreme Court observed that: "The petitioner was suffering from serious ailment which rendered his confinement in jail as hazardous to his life and therefore discretion exercised by the learned Sessions Judge was just and proper as has been verified by the further medical examination of the prisoner."
' Admittedly, the case of present applicant is not attracted by these observations of the Supreme Court in any manner whatsoever besides the nature of murder as discussed in the case of Muhammad Ismail (supra).
(c) In the case of Shafqat Bari v. The State reported in 1987 PCr.LJ 818, the same Hon'ble Judge of the Lahore High Court (Ijaz Nisar, J.), who authored the judgment in the case of Muhammad Ismail (supra) observed that the accused was suffering from epilepsy, a kind of mental disease which, according to the Medical Board, was not being controlled by the drugs due to stress. On account of that disease, the accused was stated to be getting fits in spite of sufficient doses and medicines.
' It is thus evident that this case is not attracted by the case of present applicant. It is also notable that applicant in that case was an Inspector in whose custody one accused had expired during investigation while in the present case, as alleged in the F.I.R. And the charge-sheet, the applicant is stated to be a dacoit and the police official was murdered during an encounter with the applicant along with three other dacoits.
(d) In the case of Muhammad Aslam v. The State reported in 1987 PCr.LJ 1311 bail was granted by a Single Bench of Lahore High Court to 'the applicant charged under sections 148, 302, 307, 325, 379 and 149, P.P.C. By taking into consideration that the applicant was (i) an elderly person of sixty years, (ii) the Medical Board constituted under the order of the High Court submitted a report that the accused was suffering from Right Inguihial Hernia and (iii) he had been admitted in Surgical Ward for operation etc. The case of present applicant is not attracted by the referred case because he seems to be young man and his treatment has brought him in better condition than before his operation.
(e) The last case referred by the learned Advocate was of Muhammad Bashir v. The State reported in 1991 PCr.LJ 2422 authored by one S.B.. Of Peshawar High Court. This case is also not helpful to the present applicant. In the said case, applicant Muhammad Bashir, as per report of Medical Board of two doctors, was suffering from:
(a) Bilaturel Renal Calculi with Hydronephrosis,
(b) He had been operated previously for left side Renal stones and there was recurrence of stones in the left kidney.
(c) As the applicant had stonerforming kidneys, so he was needed extracorped shock waves Lithotripacy which facility was not available in the District Headquarter HoSpital, Abbottabad.
' These were the reasons that the Hon'ble Judge of the Peshawar High Court observed that: "In the matters of such ... ... ...An accused, it would not be open to a Court to quantify or qualify his sickness as accused person is suffering from, is likely, as in the instant case, to danger his life."
' Strength, in support of above observations was sought from the case of Mir Aftab v. The State reported in 1979 SCMR 320.
' It is, thus, evident that the case of present applicant is not attracted at all by any of the cases referred by the learned advocate for the applicant.
9. I think that the ground of illness can properly be understood in the light of a case reported in 1981 PCr.LJ 274 (Barkat Ali v. The State) authored by an S.B. (Aftab Farrukh, J.) of Lahore High Court. In that matter cases of two applicants were considered on the ground of illness but one was granted bail while bail was refused to the other although investigation by the police prior to the consideration of bail applications had found the applicants to be "not guilty".
' Keeping in view the result of investigation by police the observations of the Hon'ble Judge about the accused to whom bail was granted were as under:-- "The Court is not bound by the findings of the Investigation Agencies. Each case proceeds on its own facts. The case of Ghulam Rasool petitioner is distinguishable. According to the Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat, who examined him under the order of this Court found him suffering from Bronchial Asthema and was about 64 years old with moderate degree of Anaemia. I am of the view that his case is covered by proviso to subsection (1) of section 497 of the Code of Criminal Procedure."
' Dealing with the case of co-accused, who was refused bail on the ground of illness, the Hon'ble Judge observed that: "The case of Barket Ali petitioner is not covered by proviso to subsection (1) of section 497 of Cr.P.C.
As he is, aged about 52-53 years and the mere fact that he has `ununited fracture of right forearm which requires operative treatment in the hospital would not justify the grant of bail in a capital charge'."
10. It is, thus, evident that the trial Courts as well as the appellate Courts have to consider the ground of illness from case to case independently and mere illness would not be sufficient for grant of bail to an accused. Although old age of an accused was taken into consideration for grant of bail in certain cases by invoking 1st proviso to section 497(1), Cr.P.C. Yet I have certain reservations regarding factor of age of an accused because an old man of 70 years old can be healthier than a young man of only 30/40 years of age if he is not suffering from any disease, therefore, it is not necessary that old man be released on bail on account of their age especially when they are facing capital charge. Reference can be made in this regard to the cases of Muhammad Saddique 1976 PCr.LJ 1411, Muhammad Hassan 1977 SCMR 52 and Hakim Ali 1979 SCMR 1141. Similarly it is not necessary that only those accused be released on bail under the first proviso to section 497(1), Cr.P.C. Who are suffering from such ailment which is serious or dangerous to the life of an accused.
' If disease of a detained accused requires facilities of constant care, test, treatment, special diet and these facilities are not available in jail or cannot be made available to the accused by the jail authorities or due to non-availability of such facilities condition of the accused has become worse on account of that illness and there is no chance of betterment of that condition then Courts may exercise their discretion to release such an accused on bail provided the accused himself has also cooperated in his treatment. If an accused has intentionally avoided to get medical treatment only to create a ground of sickness for bail, then use of discretion embodied in 1st proviso to section 497(1), Cr.P.C. By the Courts would not be judicious.
11. The use of discretion under 1st proviso to section 497(1), Cr.P.C. By the Courts also requires serious consideration especially after insertion of fourth proviso to section 497(1), Cr.P.C. As well as after promulgation of certain Islamic provisions such as Qisas and Diyat Ordinance and Hudood Ordinances. First proviso to section 497(1), Cr.P.C. Was inserted in 1923 by Act 18 of 1923 known as Criminal Procedure (Amended) Act, 1923. It contains the word "mar which gives concept of discretion but the fourth proviso to section 497(1), Cr.P.C. Was inserted on 26-12-1983 in the Code by Ordinance XXXII of 1983 known as Code of Criminal Procedure (Second Amendment) Ordinance, 1983 and it contains the words "shall" which gives the concept of imperativeness.
' A bare reading of this proviso leaves no doubt that purpose of this proviso was to curtail the right of detained accused persons to be released on bail under the garb of statutory right granted to them by Ordinance 71 of 1979 added in the Code by Code of Criminal Procedure (Second Amendment) Ordinance, 1979.
The use of word 'shall' in the fourth proviso makes it imperative neither to apply the third proviso to any previously convicted offender nor to a person, who in the opinion of the Court, is a hardened, desperate and dangerous criminal. In other words, even if an accused is not previously convicted, then provisions of third proviso would not be applicable to an accused if the said person, in the opinion of a Court, is hardened, desperate or dangerous criminal. The imperativeness embodied in the word 'shall' used in fourth proviso makes it necessary for the Courts to observe whether an accused falls or not out of the concept of hardened, desperate, or dangerous.
12. I am inclined to hold that mesmerical observations made in the case of Zafar Iqbal v. The State reported in 1979 PCr.LJ 908 authored by Abdul Hayee Kureshi, J. (as he then was) can be treated as the touchstone to test any bail application moved on the ground of illness as the said case was well-considered by the Hon'ble Judge of this Court by taking into consideration several cases including those reported in PLD 1966 SC 658, 1968 SCMR 82 and 1970 PCr.LJ 1128. Similarly the case of Mir Aftab v. State reported in 1979 SCMR 320 provides the best guidelines to consider bail application and the ground in issue.
Keeping all in view what has been discussed above, I have no hesitation to hold that the following factors be taken into consideration at the time of dealing bail applications on the ground of sickness:-
(i) Nature of offence and its effects on society;
(ii) Severity of punishment;
(iii) Chances of abscondence of the accused;
(iv) Apprehension of tampering evidence if released;
(v) Conduct of the accused regarding his treatment and proceedings in Courts;
(vi) Nature of illness and availability of medical facilities to the accused;
(vii) Condition of health in the past and its comparison with the present condition.
' If the case of applicant is tested on the anvil of above enunciations, then its reflecting rays radiate that--
(i) the offence alleged against the applicant not only affects the society at large but attract capital punishment also;
(ii) chances of abscondance and of evidence by the applicant in the light of allegations levelled against him cannot be ruled out;
(iii) avoiding to examine witnesses by frustrating the directions of this Court is a matter of record;
(iv) nature of illness is not unusual as every patient who undergoes such operation has to use Colostomy bag for a temporary period; and
(v) medical facilities availed by the applicant has bettered his health condition.
13. Visualizing the averments so advanced, examining them in the light of sparks emitted by the touchstone of inference drawn and weighing their accumulative effects in the scale of realities, I am left with no other alternative but to hold that this Court would not be justified to exercise its discretion embodied in the first proviso to subsection (1) of section 497, Cr.P.C. For releasing the applicant on bail as desired by him and requested on his behalf particularly when he .Is facing a capital charge in a case which affects the society at large. Result is, thus, obvious. Application for bail is dismissed.
14. Although undisputed reality of avoiding to examine witnesses as per directions dated 12-12-1994 had clouded the conduct of the applicant yet I do not consider it proper to withdraw these directions except to modify the same. The applicant can move fresh bail application as soon as the eye-witnesses are examined in accordance to the order dated 12-12-1994.