The petitioner being involved in a case under section 302/34, P.P.C. Has approached this Court for his release on bail only on the ground of his sickness.
2. The brief facts of the case are that the accused-petitioner was charged for the murder of one Muhammad Ayub, who was standing near the counter in his Electric Store where the petitioner alongwith his brother Muhammad Rauf duly armed with Klashnikoves came in a Motor Car, stopped in front of the shop of the deceased arid opened fire at the deceased, as a result of which he was hit and expired. Motive was stated to be a dispute over contract as both accused and deceased were contractors.
3. The petitioner submitted an application for his release on bail before the S.D.M., Bannu, who while rejecting his application on merits issued directions for the constitution of a Medical Board to ascertain whether the plea taken by the accused-petitioner in his bail application with respect to his sickness to be of a nature to make entitled to the concession of bail and in this respect the learned S.D.M. Observed; "The available record establishes that the occurrence has taken place in the shop of the deceased and active part in the commission of the offence of murder has been assigned to them and that they fired with Klashnikoves showing multiple injuries on these persons of the deceased. No ground for bail upon merits is made out in respect of the two petitioners and is dismissed upon merits.
However, the learned defence counsel has particularly taken a plea of infirmity in respect of accused Muhammad Yousaf who is at Lady Reading Hospital Peshawar. In order to meet the ends of justice a special board of doctors is ordered to be constituted through Director Health for expert view/opinion in respect of the treatment of the injury of Muhammad Yousaf. The report must be sent on or before 9th of this month. A certified copy be sent to Director Health for constitution of board."
4. In consequence of the said directions, a Board of the doctors was constituted, which submitted its report and the learned S.D.M. Was pleased to pass an order of release of petitioner on bail on the ground of his illness.
5. The complainant felt aggrieved himself of the order of the Magistrate side by which the accused-petitioner was released on bail, moved the Sessions Court for cancellation of the bail on 30-6-1994, which after some adjournments including a few because of the absence of the accused-petitioner, ultimately was decided on 7-9-1994 and vide this order the bail granting order to the accused-petitioner was recalled and he was ordered to be taken into custody. The petitioner has now approached this Court -for his release on bail only on the ground of sickness.
6. I have heard the learned counsel for the parties and perused the record of the case with their assistance.
7. The learned counsel for the petitioner argued,
(i) That one the discretion exercised and the same is not arbitrary or perverse, cannot be interfered with.
(ii) That the petitioner was not before the Sessions Judge and so in his absence and contrary to the opinion of the doctors he was not justified to cancel the bail on the basis of presumption that the petitioner is not sick, and thus the opinion of the Board cannot be substituted by the Court when the petitioner has not been seen by the Court itself.
(iii) That one the bail has been granted, then the cancellation of the same will be considered on the grounds which are normally considered by the Courts against an order of acquittal.
(iv) That since the release of the petitioner on tail on 26-6-1994 uptill 4-9-1994, he did not misuse the concession of bail.
8. The complainant getting knowledge of the referring of the accused---petitioner to a Medical Board also submitted an application dated 9-6-1994 to the Director, Health, wherein he stated that the accused being a close relative of Dr. Umar Ali, who has been kept under treatment by the said Doctor in L.R.H. Peshawar and made a prayer that the Board of the Doctors of Hayat Shaheed Teaching Hospital, Peshawar may be constituted instead of the doctors in the L.R.H. As the doctors of L.R.H. Might be influenced by him, the copy of which application is on the file of the Magistrate bearing an endorsement.
"M-To process the case accordingly to arrange for second opinion of K. M. C."
The complainant submitted another application to the Commissioner the copy of which is also on the file of Magistrate that despite the objection on the Medical Board and submission of application to the concerned authorities the accused---petitioner was examined by a Board on which he was having objection and he made a request for the constitution of a second Board for the examination of the accused-petitioner. The report' of the Medical Board was received by the S.D.M., on the basis of which he granted bail to the accused-petitioner. This report gave an impression that without application of mind by the Board and being not consisting of the experts as report shows and was based on the opinion of Dr. Umar Ali. Its opening para states.
"The Standing board meet on 8-6-1994 and referred accused Malik Yousafullah son of Malik Habibullah Khan r/o Bannu to Dr. Umar Ali Surgeon for expert opinion. The report of Prof. Dr. Umar Ali is as under. " and then the report/opinion was reproduced verbatim, incorporated in the report of the Board, and at the end it was observed that; "The standing Medical Board agrees with the opinion of Prof. Dr. Umar Ali, Surgical Specialist/PGMI/LRH, Peshawar. "
9. When the application for cancellation of bail was moved before the Sessions Judge and when the notices were issued, the petitioner avoided appearance before the Court. The order sheet of the file of the learned Sessions Judge dated 19-7-1994 reads.
"Complainant in person. Accused-respondent: Malik Muhammad Yousaf is not present on his behalf his counsel Pir Liaqat Ali Shah, Advocate is present and he produced a FAX message and stated that the accused-respondent is lying in L.R.H. Peshawar. On the other hand, the complainant submitted that the respondent is not in the hospital but is wandering in Bannu. "
Upon this information of the complainant, notices were issued to the accused---petitioner for 25- 7-1994, on which date the accused again was absent and a certificate of the Registrar, L.R.H., Peshawar was produced on his behalf on which the learned Sessions Judge ordered: "The respondent should appear in person on the next date or otherwise his doctor should give clear opinion that he is ill of the nature that he cannot attend the Court in person. " and the next date, of hearing was fixed as 2-8-1994 and ultimately after a few adjournments, the application, as stated earlier, was decided on 7-9-1994, on which date the accused-petitioner again was absent, but he was represented by a counsel, who addressed the arguments.
10. Though the Medical Report consists of various paras. i.e. With regard to his ailment, treatment, future planning and prognosis, the relevant portion with regard to his ailment is reproduced below:--- "This is to certify that Mr. Malik Yousafullah son of Malik Habibullah Khan is admitted with us in L. R. H.
Bolten Block Room No. 20 on 12-5-1994 as an emergency following F.A.I. To his upper third right forearm associated with hand nerve injury resulting in diminished sensations dorsal right hand paralysis of extensuis of wrist and fingers of right hand with wrist drop. "
The injury which has been referred, to in the above para. Was initially examined by the Medical Officer, D.H.Q. Hospital, Bannu and according to his report this injury is--- "(1) One fire-arm entry wound --" x --" on the posterior lateral aspect of the right forearm just below the elbow joint.
(2) One fire-arm exit would 1/5" x 1/5" on the interior lateral aspect of right forearm related to No. 1 wound."
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, that 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 complainant Dost Ali appeared in person, submitted an application that he has not been made a party in the instant application and wish to be a party and to be heard, which request of his acceded to in view of the authority PLD 1993 Pesh. 151, and being petitioner in bail cancellation who was also heard and who alleged that the report is baseless and concocted and prepared at the instance of the same Doctor as he alleged earlier and also stated that after the release of the accused-petitioner on bail he was invited to a dinner in Bannu who attended the same.
12. Leaving aside, for a moment the allegation of the complainant, the authenticity of the report of the Medical Board is not above board. The opinion of an expert, the Doctor, is not so sacrosanct to be believed in toto or each word to be taken as gospel truth, but rather subject to the scrutiny of the Court and it is for the Court to analyse and to see in the given circumstances. In the instant case looking at the nature of the injury which is fire-arm injury --" x --" on forearm without any .Damage to the bone and the accused was kept under treatment in the Hospital uptill now i.e. From 12-5-1994 to 2-10-1994 for about five months. The Doctor is issuing certificate justifying his non- attendance of the Court by the accused and made him to disobey the order of the Court. Had he attended the Court and was before the Court to see his infirmity and sickness in view of such a Medical Report, as discussed above, he could avoid the drawing of adverse presumption by the Court with regard to his sickness which now in the circumstances of, the case can be considered as valid and legal.
13. 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 observation 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.
Resultantly, this application for release of the accused-petitioner fails and is hereby dismissed. The office is directed to enter the name of complainant Dost Ali as respondent in the petition.