' Petitioner Daulat Khan son of Niaz Dil has preferred the present petition for his bail on medical grounds alleging that he is an old man suffering from the following diseases:--
(i) Urinary Tract Infection (U.T.I.),
(ii) Scabies (Skin Disease) and
(iii) Hypochondria (Moribid anxiety about health, Nervous malady). ' which need specialized treatment and that the same was not available in the jail premises. The accused-petitioner is charged in case F.I.R. No,56, dated 20-1-1993 of Police Station Hashtnagri for offences under section 302/324/148/149/404, P.P.C. It is a double murder case in which the accused has been directly charged for causing death of one Muhammad Ismail at the spot and causing fire-arm injuries to his son Mehmood-ul-Hassan who later on expired in the hospital on the same day.
2. Besides the petitioner, four other accused were also charged for the offence. Out of five accused the present accused arrested on 10-9-1997 after a prolonged ascendance, his co-accused namely, Iqbal, was arrested on 15-9-1997. The investigation in the case is complete and the challah was put up in Court on 28-1-1998. The remaining three culprits are still absconding.
3. The accused-petitioner, Daulat Khan, moved an application for his bail before the Judicial Magistrate, Peshawar which was refused on merits on 6-11-1997. In the second attempt he moved another application before the same Court on medical grounds alleging that he was suffering from skin diseases namely, Scabies. It was supported by the report of the Jail Medical Officer, recommending specialised treatment for him. As such the petitioner was allowed bail on 5-1-1998 on medical grounds. Being aggrieved of the aforesaid concession allowed to the petitioner, Mst.
Sharif Zadi widow of the deceased moved an application for the cancellation of his bail before the Additional Sessions Judge, Peshawar. The learned Additional Sessions Judge without discussing the merits of the case took into consideration reports of the Medical Officer Jail Hospital, Peshawar and was of the opinion that the diseases mentioned by the Jail doctor were not such which would entitle him to the concession of bail and according to him the impugned order before him was highly capricious. He, therefore, accepted the petition for the cancellation of bail and took the accused into custody and sent him to the judicial lock-up vide his order, dated 20-3-1998.
4. Feeling aggrieved of the aforesaid order, the accused-petitioner has preferred the present petition purely on medical grounds. This Court vide order, dated 15-5-1998 was pleased to refer the accused-petitioner to the Standing Medical Board to ascertain the correct position of his ailment.
The report of the Medical Board has been received and placed on the file and is dated 8-7-1998.
The accused-petitioner was examined by the Standing Medical Board and the Board was of the opinion that the accused-petitioner had some urinary problem having left kidney stone and was advised surgery but did not specifically mention that the accused requires quick specialized medical treatment which was not available in the jail premises or that the same could not be provided to the accused-petitioner at State expenses in any Government Controlled Hospital. The concluding para of the observation of the Medical Board is as follows:-- "The Standing Medical Board agrees with the opinion of Urologist, Government Lady Reading Hospital, Peshawar. He should be managed under strict custody and security in the concerned Department."
5. I am afraid, this report of the Standing Medical Board will be of no help to him in the present circumstances as the authenticity of the same is not positively clear. The petitioner, therefore, has not made out a case for bail on the medical grounds. As such no relief can be extended to him because proviso (1) of section 497, Cr.P.C. Is discretionary. However, if the jail Doctor feels that the accused-petitioner requires specialized treatment or surgery he may refer the accused-petitioner to any of the Government Controlled Hospital at Peshawar on the choice of the petitioner and provide him the specialized treatment including surgery at State expenses as early as possible under the strict custody and security as desired by the Standing Medical Board. The application is, c therefore, dismissed. However, the trial Court is directed to expedite the trial of the accused- petitioner within three months from today as the case has already been put in Court.