' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal has been preferred against an order recorded by the Shariat Court of Azad Jammu and Kashmir on 16-12-1996, whereby the concession of to the appellant herein was recalled.
2. The precise facts, forming the background of the present appeal, are that on a report lodged by Mir Zaman, complainant, at Police Station Khui Ratta, a case under section 5 of the Islamic Penal Laws Enforcement Act, 1974 read with sections 341 and 109/34, A.P.C. Was registered against the appellant and another. The prosecution case as stated in the F.I.R. Is that on June 22, 1994, at about 9 a.m. The brother of the complainant, Muhammad Rashid, was on the way to the house of his relatives and when he reached the village known as Okhal, he found Inayat Ullah appellant and Muhammad Mushtaq, accused, sitting in the way. When the brother of complainant reached near them, the accused raised Lalkara and opened the attack. Inayat Ullah, accused, was armed with .12 bore gun who fired a shot which hit Muhammad Rashid. As a result of injuries thus inflicted Muhammad Rashid died instantaneously. The occurrence, according to the prosecution, was witnessed by Abdul Khaliq and Liaqat Ali, who were accompanying the deceased.
3. After the conclusion of the investigation, the police forwarded the accused-appellant along with other accused by presenting a challan in the Court of District Criminal Court, Kotli, for facing their trial in the aforesaid offences. The appellant moved an application for his release on bail before the trial Court on the ground of his being a heart patient. The trial Court allowed the concession of bail to the appellant but on appeal filed by the complainant, the to the appellant was cancelled by the Shariat Court vide the impugned order, which is the subject of present appeal.
4. A learned Judge in the Shariat Curt cancelled the bail granted to the appellant primarily on the following grounds:- "(i) that no doubt the bail could be allowed to an accused person on medical ground but the same could be allowed only after the satisfaction of the Court that proper treatment could not be provided to him in the jail and that his hospitalization was necessary;
(ii) that the trial Court while extending the concession of bail to the appellant imposed a condition upon the appellant to produce a certificate within two months after his examination from the A.F.I.C. Rawalpindi to the effect that he was a patient of heart disease. This means that the trial Court was itself not satisfied, while allowing the bail, that appellant was suffering from heart disease. It was enjoined upon the trial Court to ascertain and ensure that the appellant was suffering from such an ailment, the treatment of which was not possible in the jail, but the trial Court without any such satisfaction, allowed the concession of bail to the appellant; and
(iii) that at the time of extending concession of bail to the appellant on October 22, 1995, by the trial Court a condition was stipulated that the appellant, after getting himself examined from A.F.I.C., Rawalpindi would submit a certificate within a period of two months to the effect that in fact he was suffering from heart ailment and his further detention in jail would endanger his life but he failed to do so, thus the condition imposed was violated."
5. Mr. Sher Zaman. Chaudhry, the learned counsel appearing on behalf of appellant, vehemently contended that it was satisfactorily established from the medical certificate initially issued by Dr. Nasir-ud-Din, District Headquarters Hospital, Kotli, and subsequently by a certificate of Medical Board constituted for the medical examination of the accused-appellant that the appellant was suffering from a serious heart ailment which needed his hospitalization. The learned counsel submitted that all the grounds made basis for cancellation of bail of appellant were either unfounded or based on assumptions. The learned counsel strenuously contended that the learned trial Court in para. No,2, page 3 of its judgment had stated that the appellant was suffering from heart ailment and his case was covered by proviso (i) of section 497, Cr.P.C. It was further observed by the trial Court that on the basis of prescription attached with the file of the trial Court pertaining to bail matter and the certificate issued by Dr. Nasir-ud-Din and report submitted by Medical Board it appeared that the appellant was suffering from heart trouble. Similarly it was observed by the Court in the 1st position of para. 1 of its judgment at page 4 that the appellant was suffering from a serious disease which required proper treatment and investigation on the basis of which he was entitled to be released on bail. Regarding the condition imposed by the trial Court that the appellant should get himself examined within a period of two months from the date of his release on bail as to whether he was suffering from heart ailment or not, according to the learned counsel for the appellant, is an observation which was made as a matter of abundant caution so that the accused-appellant may further satisfy the Court by producing a certificate from A.F.I.C., Rawalpindi. On violation of his condition it was also observed by the Court that the prosecution could move for the cancellation of his bail. This factor, by itself according to the learned counsel, is not suggestive of the fact that the Court was not satisfied with regard to illness of the appellant as alleged by him. The learned counsel also pressed into service the submission that after release of the accused-appellant on bail on 22-10-1995, the application for cancellation of his bail was moved in the Shariat Court on 15-11-1995 just within a period of 22 to 23 days. Thus, the appellant was not in a position to get himself hospitalized and medically examined himself from A.F.I.C. As he had to attend the Court on each and every date fixed by it, submitted the learned counsel.
According to the learned counsel the observation made by the Shariat Court that the appellant violated the condition imposed by the trial Court is of no substance and having no legal foundation. The learned counsel also argued that the trial Court in its best wisdom exercised the discretion in favour of releasing the accused on bail but the same was upset by the Shariat Court in absence of its perversity or in flagrant violation of settled principles of law governing the subject of bail matters.
6. In reply Mr. Abdul Majid Mallick, the learned counsel for complainant, fully defended the impugned judgment and submitted that the case of appellant, in no way, was covered by proviso
(i) of section 497, Cr.P.C. According to the learned counsel no circumstances were brought on record to the effect that the treatment of appellant was not possible in the jail hospital. The learned counsel for complainant seriously disputed the contents of report submitted by the Medical Board on the ground that the same was issued without any proper investigation or thorough check-up of the appellant as it merely narrates the opinion formed by Dr. Nasir-ud-Din. It was further contended by the learned counsel that no material was placed on record to suggest that the condition of health of the appellant was deteriorated to such an extent that it necessitated his hospitalization for the proper look after of his health and that such facilities were not available in jail. The learned counsel further contended that the prosecution case was fully supported by two eye-witnesses whose evidence had already been recorded. The appellant, being the principal accused, who caused the fatal injury, was not entitled to be released on bail on medical ground.
7. Kh. Atta Ullah, the learned Additional Advocate-General, also supported the contentions raised by the learned counsel for the complainant.
8. Lengthy arguments were addressed at Bar by both the learned counsel for the parties. We have perused the relevant record and given our due consideration to the arguments advanced by the learned counsel for the parties. It may be stated that the accused-appellant was released on bail by the District Criminal Court, Kotli, on the ground that he was suffering from heart ailment. The trial Court was persuaded to form the above opinion on the basis of medical certificate issued by Dr. Nasir-ud-Din, District Headquarters Hospital, Kotli, and the report submitted by a Medical Board, comprising of three doctors to the exclusion of Dr. Nasir-ud-Din as suggested by the prosecution.
This fact is borne out from interim order of the trial Court dated 9-8-1995. According to the medical certificate issued by Dr. Nasir-ud-Din, District Headquarters Hospital, Kotli, it is stated that the appellant is patient of Angina, Mod Hypertension uncontrollable needs hospitalization for investigation and full evaluation of the heart disease. The certificate also states the treatment given to the appellant which is stated below:--
(1) Tab. Isodril 1 + 1 + 1
(2) Tab. Capoten 25 mg. 1 + 1
(3) Tab. Disprin one half every day and
(4) Tab. Doduretic one every day.
' Similarly the certificate issued by Medical Board recites:--"Mr. Inayat Ullah son of Khan Wall age about 76 years was presented before the Medical Board on 5th September, 1995 at 10-30 a.m. On examination found-- "Pulse 90/m ' B.P. 200/100 mm/Hg ' J.V.P. Increased ' Anaemia +ve.
' Oedema +ve.
' Chest -Si + S2 + 0 ' S Vesicular ' Abdomen Fine basal creps, liver just palpable.
' CNS NAD Diagnosis ' Hypertensive heart failure + Unstable Angina + Anaemia ' Board agrees with the opinion of the medical specialist and the patient needs further investigations and evaluation of his heart disease. He must be immediately referred to A.F.I.C., Rawalpindi."
The above record in the nature of medical certificates and the prescription prescribed to the appellant suggests that appellant is a patient of Angina which obviously is a heart ailment. The record also suggests that the Medical Board advised that the patient should be immediately referred to A.F.I.C. Rawalpindi. The initial certificate issued by Dr. Nasir-ud-Din also suggests that patient needs hospitalization for investigation and full evaluation of the heart disease. As regards the observation made by the Shariat Court that the trial Court itself was not satisfied that the patient was suffering from heart ailment and thus imposed a condition that he would get himself medically examined from A.F.I.C. Rawalpindi within a period of two months is in our opinion a condition which was imposed as a matter of abundant caution. The above condition in no way suggests that the trial Court was not satisfied with regard to the heart ailment of the appellant. It was repeated more than once by the learned trial Court that it had reached the conclusion after perusal of the record that the patient was suffering from heart disease. We also agree with the submission made by the learned counsel for the appellant that after his release on bail the appellant was not provided with a sufficient period of time as stipulated in the condition imposed by the trial Court to get himself medially checked-up from A.F.I.C. As the application for cancellation of his bail was moved within a span of 22 to 23 days. The appellant was left with no option but to attend the Court regularly on each date during the pendency of application for cancellation of bail.
9. In an unreported case of this Court titled Muhammad Hussain yr The State and another decided on 4-6-1990, the precise facts were that Muhammad Hussian who was principal accused in a murder case was released on bail by District Criminal Court, Mirpur, but the same was cancelled by Shariat Court on the ground that plea of ailment as alleged by Muhammad Hussain, accused, was not borne out from the record. It was indeed a case of cross-versions but ignoring the theory of cross-versions the accused was allowed bail by this Court. The observation made by this Court may usefully be reproduced below: ' "Without adverting to the question as to whether principle of bail matter followed in cross-cases is attracted in present case or not, we are of the view that the Shariat Court has committed an error in holding that there is no prima facie proof on the record that the appellant is suffering from heart ailment."
' The Court then went on referring to various medical certificates placed on record of trial Court by the accused and finally observed as under:-- "In view of the aforesaid record, we are of the view that there is sufficient proof on the record that the accused-appellant is suffering from Ischemic heart disease which, of course, is a serious disease and requires adequate treatment and rest. It need not be emphasised that if it is shown satisfactorily that an accused person is suffering from serious ailment which is likely to aggravate if the patient is detained in custody, he is given the concession of bail. If at all any authority is necessary a reference may be made to Sardar Abdul Hamid v. Momin Khan PLD 1984 Pesh. 199 wherein bail was granted io the accused person on the ground that according to the medical certificate he was suffering from heart disease."
' It may be emphasized that in the above cited case none of the medical certificates was to the effect that the patient needed immediate hospitalization unlike the case in hand before us. In a reported case Banaras v. State 1978 SCMR 191 wherein Banaras was alleged to have stabbed deceased Fazal Din, was allowed bail on the ground that he w8 suffering from idiopathic epilepsy.
The contention of the learned Advocate-General that Banaras was being treated in the jail hospital properly and was, therefore, not entitled to bail, was rejected with the observation that "We are of the opinion that the appellant is suffering from a serious disease and he cannot have the treatment of his choice in the jail hospital besides fits occurs in the disease from which the appellant is suffering and it will be difficult for jail authorities to look after him". In the case of Muhammad Aslam Goraya v. The State 1977 PCr.LJ 394 after rejecting the application for bail on merits on the certificate of a heart specialist that Muhammad Aslam Goraya was suffering from serious heart trouble and that the disease of that nature strikes without much warning and the effective treatment was not possible in jail, he was allowed bail under the aforementioned provision of law. In a case reported as Abdul Aziz v. The State PLD 1966 SC 658, wherein Abdul Aziz who complained of palpitation and sinking of the heart and was getting treatment for a month and a half, was allowed bail by the learned Additional Sessions Judge and that was cancelled by the High Court. The learned Supreme Ccurt however, observed that "Where there is a reasonable ground for believing that an accused person is guilty of offence punishable with death or transportation for life bail may yet be granted if he be sick or infirm". Thus, the order of the learned Additional Sessions Judge granting bail was restored. In a case of Wahid-ud-Din v. Allah Dittah 1968 SCMR 82 one Saleem Akhtar had applied for bail on the ground that he had five attacks of Angina prectoris and he was not receiving proper treatment at the jail. The application was rejected because the plea was not supported by any legal medical certificate and it was observed that he could have easily filed a certificate of doctor attached to the jail hospital. However, it was observed that "the petitioner if so advised may move a fresh petition for bail on proper materials."
In other words, the kind of illness was taken as a ground for grant of bail on a capital charge.
10. From the plethora of the authorities it would appear that a person who is sick or infirm can be granted bail under 1st proviso of section 497, Cr.P.C. The purpose and intent of proviso appears to be that it equally applies to a person who is named as a principal accused. The appellant is of the age of 76 years as alleged by him and not denied from the other side. Advance age and the c heart disease do bring the case of the appellant within the first proviso under reference.
11. In the instant case another distinct feature is that the accused-appellant before us was initially released on bail by the trial Court but his bail was cancelled by the Shariat Court. The principles governing the grant of bail and the cancellation of bail substantially stand on a different footing.
Once a bail is granted by a Court of competent jurisdiction it must be shown satisfactorily that the discretion exercised by it was either perverse or violative of the fundamental principles governing the bail matters or that which could not have been exercised at all in the circumstances of the case. Nothing has been shown td us that the discretion exercised by the trial Court on the basis of heart ailment of the accused-appellant was either arbitrary or capricious. Thus, this Court would normally be slow to disturb the judicial exercise of discretion vested in the trial Court. Even on the aforesaid premises the Shariat Court has erred in cancelling the bail of the appellant on superficial grounds.
12. As regards the case of Sardar Muhammad Maroof and others v. The State decided by the Shariat Court of Azad Jammu and Kashmir on 15-7-1996 no doubt there was a statement of Dr. Waciar, Heart Specialist, to the effect that the appellants were confirmed cases of heart disease but all the same it was not opined by him that they could be treated properly in jail or not thus the Shariat Court directed that the proper investigation of the accused-petitioners be carried in some advanced Cardiology Centre like A.F.I.C. Within a certain period after which the bail matter of the accused-petitioners could be resolved. The aforesaid order was challenged before this Court and it was argued before us that the order of the Shariat Court was not implemented even at the time of appeal before the Supreme Court. The Supreme Court thus got the order of the Shariat Court implemented and directed the prosecution to get the accused-appellants checked up from A.F.I.C.
And remanded the case to Shariat Court so that it may decide the matter of bail which was already pending before it. In this view of the matter the case relied upon by the Shariat Court and the learned counsel for the respondents is distinguishable as it was neither argued nor we applied our mind on the nature of the disease of the appellants in that case.
In the light of what has been stated above, we accept the appeal filed by the accused-appellant, set aside the order of the Shariat Court. Thus, the order passed by the District Criminal Court, Kotli releasing the accused-appellant on bail stands restored. The appellant shall be released from the custody forthwith on the bail bonds and the personal bond already furnished by him in accordance with the order of the District Criminal Court, Kotli.