PLJ 2024 Cr.C. (Note) 233
[Peshawar High Court, Abbottabad Bench]
Present: Muhammad Ijaz Khan, J.
versus
STATE and others--Respondents
Crl. M. (BA) No. 735-A of 2023, decided on 4.12.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 337-A(1), 337-A(iii), 337-F(v) & 34--Khyber Pakhtunkhwa Arms Act, 2013, S. 15--Constitution of Pakistan, 1973, Art. 9--Bail, grant of--Common intention made firing--Medical opinion--Treatment of disease was not available in jail--Question of--Whether such disease could be properly treated in jail or not--Validity--Since accused was suffering from a serious disease and if not treated properly, same may be proved fatal for his life and thus it is one of his fundamental right as guaranteed to him under Art. 9 of Constitution to secure his life by taking proper treatment and as such if accused was refused bail then same would amount to deny him treatment of his own choice and that too for a disease which may be fatal for his life--Accused has turned out to be a sick and an infirm person as per record of case, he was unable to walk as well and he needs support at every step of life like going to washroom etc--The order-sheets of trial Court also indicate that he was not attending Court proceedings as he could not be produced from hospital, therefore, in such eventuality it was better to release him on bail than keeping him in jail--Trial already in progress, therefore, further custody of accused was neither required to prosecution nor same would serve any useful purpose--Bail was allowed. [Para 6, 7 & 9] A, B & F
2004 SCMR 15, PLD 2009 SC 797 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Post arrest bail--Grounds--It may be clarified that when once an accused person succeeds to bring his case within any of five categories as stipulated in S. 497(1), Cr.P.C. i.e. where an accused is a female or accused is under age of sixteen years or if an accused is a sick or if an accused is an infirm person then he is not even required to establish his case u/S. 497(2) Cr.P.C. and since petitioner has been succeeded to establish on face of record that he is a sick and an infirm person, therefore, on these grounds too, he is entitled for grant of bail. [Para 7] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Bail, grant of--Grounds--Prohibitory clause--Irrespective of category of offence--Entitlement--The said proviso, makes power of Court to grant bail in offences of prohibitory clause of S. 497(1), Cr.P.C. alleged against an accused under age of sixteen years, a woman accused and a sick or infirm accused, equal to its power under first part of Section 497(1), Cr.P.C--It means that in cases of women accused etc. as mentioned in first proviso to Section 497(1), irrespective of category of offence, bail is to be granted as a rule and refused only as an exception in same manner as it is granted or refused in offences that do not fall within prohibitory clause of Section 497(1), Cr.P.C. [Para 7] D
Bail--
----Scope of--Grant of bail to accused would not be an order of acquittal in his favour rather his custody is to be taken from State Agency and same is to be handed over to sureties who shall ensure to produce him whenever he is required by trial Court. [Para 8] E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail, grant of--Benefit of doubt--Every accused is innocent until his guilt is proved and benefit of doubt can be extended to accused even at bail stage if facts of case so warrant. [Para 9] G
Criminal Jurisprudence--
----Bail--Entitlement of--The basic philosophy of criminal jurisprudence is that prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at time of deciding whether accused is entitled to bail or not. [Para 9] H
Mr. Atif Ali Jadoon, Advocate for Petitioner.
Malik Amjad Inayat, Assistant Advocate General for State.
Mr. Fazal-i-Haq Abbasi, Advocate for Complainant/ Respondent.
Date of hearing: 4.12.2023.
Order
This order is directed to dispose of an application filed by petitioner Asad Haroon Khan son of Muhammad Ilyas Khan for the grant of post arrest bail in a case registered vide FIR No. 1089 dated 19.10.2022 under sections 302/324/337-A(i)/337-A(iii)/337-F(v)/34, PPC read with Section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Cantt Abbottabad on fresh/medical grounds.
2. Allegations against the accused/petitioner as levelled by the complainant namely Ejaz Khan are that he alongwith his co-accused in furtherance of their common intention made firing on the complainant and his son namely Hasnat with intention to commit their murder as well as inflicted them Danda blows. Lateron injured Hasnat succumbed to the injuries.
3. Arguments of learned counsel for parties as well as learned Assistant Advocate General appearing on behalf of State were heard in considerable detail and the record perused with their able assistance.
4. The record would show that initially the bail to the present petitioner was declined by this Court vide order dated 16.06.2023 passed in Cr.M (BA) No. 318-A/2023, however, thereafter during the pendency of the trial, the health of the present petitioner started to deteriorate, therefore, the learned counsel representing the petitioner submitted an application to the learned trial Court to constitute a medical board to assess the medical condition of the petitioner as he was unable even to maintain balance and apparently he was seriously ill and the same application was allowed and the petitioner was referred to the medical board who opined as under:
“On examination of the patient, he was found to have decrease power in both leg with power in the toes... On the basis of above, clinical findings and investigation patient is probably having a malignant process (Metastatic/Primary bone tumor??) for which he need further investigation for further confirmation and treatment of the disease process.”
The aforesaid opinion of the medical board was found uncertain qua the nature of the disease of the petitioner, therefore, he was again referred to the medical board and this time it was reported that,
“... the patient was found to be suffering from diffuse large B cell lymphoma, a type of blood cancer of bone type. Other supportive investigations suggested the stage to be 4 and IPI score of 4 which suggest that patient has High Risk disease ...”
However, the aforesaid report was again found as insufficient for a clear opinion, therefore, a clarification was sought from the concerned medical board who also submitted the same. In view of the above medical opinion, the present petitioner is having a type of blood cancer of bone and suggested to be of at stage 4.
5. The next question before this Court is that whether such disease could be properly treated in jail or not. The record would indicate that the jail authorities have confirmed that the treatment of the said disease is not available in jail and it is part of the record that these days petitioner is admitted in ATH Abbottabad and from where he is taken to INOR hospital Abbottabad for chemotherapy.
6. It may be noted that since the petitioner is suffering from a serious disease and if not treated properly, the same may be proved fatal for his life and thus it is one of his fundamental right as guaranteed to him under Article 9 of The Constitution to secure his life by taking proper treatment and as such if the petitioner is refused bail then the same would amount to deny him treatment of his own choice and that too for a disease which may be fatal for his life. In the case titled “Firdous Paul vs. The State” reported as 2004 SCMR 15, the Supreme Court of Pakistan granted bail to an accused who was suffering from heart disease and required bypass operation by observing that condition of accused as per medical report is deteriorating. Similarly, in another case titled “Zar Muhammad vs. Mian Jafar Shah and another” reported as PLD 2009 Supreme Court 797, the Supreme Court of Pakistan dismissed Bail Cancellation Application on the ground that the bail was rightly granted by the High Court on the medical ground by observing that gravity of respondent’s sickness constitute legitimate basis for his entitlement to bail.
7. It was also noted that the petitioner has turned out to be a sick and an infirm person as per record of the case, he is unable to walk as well and he needs support at every step of life like going to the washroom etc. The order-sheets of the learned trial Court also indicate that he is not attending the Court proceedings as he could not be produced from the hospital, therefore, in such eventuality it is better to release him on bail than keeping him in jail. It may be clarified that when once an accused person succeeds to bring his case within any of the five categories as stipulated in sub-section (1) of Section 497 Cr.P.C. i.e. where an accused is a female or accused is under the age of sixteen years or if an accused is a sick or if an accused is an infirm person then he is not even required to establish his case under sub-section (2) of Section 497 Cr.P.C. and since the petitioner has been succeeded to establish on the face of record that he is a sick and an infirm person, therefore, on these grounds too, he is entitled for the grant of bail. In the case titled “Mst. Ghazala vs. The State and another” reported as 2023 SCMR 887, the Supreme Court of Pakistan has observed that no doubt, the offence of Qatl-i-amd (intentional murder) punishable under Section 302, P.P.C. alleged against the petitioner falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure, 1898 (“Cr.P.C.”) but being a women, the petitioner’s case is covered by the first proviso to Section 497(1), Cr.P.C. The said proviso, as held in Tahira Batool case, makes the power of the Court to grant bail in the offences of prohibitory clause of Section 497(1) alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, equal to its power under the first part of Section 497(1), Cr.P.C. It means that in cases of women accused etc. as mentioned in the first proviso to Section 497(1), irrespective of the category of the offence, the bail is to be granted as a rule and refused only as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of Section 497(1), Cr.P.C.
8. It may also be clarified that grant of bail to the accused/petitioner would not be an order of acquittal in his favour rather his custody is to be taken from the State Agency and the same is to be handed over to the sureties who shall ensure to produce him whenever he is required by the trial Court. In the case titled “Mst. Nasreen Bibi vs. The State and others” reported as 2021 PCr.LJ Note 34 [Lahore], it was held that grant of bail does not amount to acquittal of the accused as the custody of accused is shifted from jail lock-up to the hands of sureties, who are made responsible to produce the accused before the Court as and when required. Likewise, in the case titled “Irfan vs. The State and another” reported as 2021 PCr.LJ Note 49, this Court has also held that grant of bail does not mean the acquittal of accused but it is mere change of custody of accused to the hands of sureties.
9. The record further shows that the trial in this case is already in progress, therefore, further custody of the accused/petitioner is neither required to the prosecution nor the same would serve any useful purpose. In the case titled “Resham Khan and another vs. The State through Prosecutor General Punjab, Lahore and another” reported as 2021 SCMR 2011, the Apex Court has observed that the basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not.
10. Accordingly, this bail petition is allowed and the accused/petitioner Asad Haroon Khan son of Muhammad Ilyas Khan is directed to be released on bail provided he furnishes bail bonds in the sum of Rs. 200,000/-(two hundred thousand), with two sureties in the like amount each to the satisfaction of the learned trial Court, who shall ensure that the sureties must be his relatives or co-villagers, reliable and men of means.
(A.A.K.) Bail allowed
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