P L D 2009Supreme Court 707

P L D 2009Supreme Court 707

Present;Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

ZARMUHAMMAD—Petitioner

Versus

Mian JAFAR SHAHand another—Respondents

Criminal PetitionNo.4-P of 2008, decided on 23rd April, 2009.

(On appeal from thejudgment dated 15-2-2008, of the Peshawar High Court, Peshawar passed inCr.M.1274 of 2007).

CriminalProcedure Code (V of 1898)—

—-S5.497(5)—Penal Code (XLV of 1860), Ss.302/324/34—Constitution of Pakistan(1973), Art.185(3)—Cancellation of bail, refusal of—Medical boardconsisting of four eminent Doctors constituted under the order of High Court,had examined the accused and found him suffering from serious heart disease,which needed management—High Court had allowed bail to accused on valid andsound reasons after having considered the matter .from all angles andthe medical report—Gravity of the sicknessof accused had constituted legitimate basis for his entitlement to bail underthe proviso to S.497, Cr.P.C.—Bail granting order did not suffer from anyinfirmity, legal or factual—Leave to appeal was refused to complainant bySupreme Court in Circumstances.

Muhammad Arshad v.The State and another 1997 SCMR 1275; Raza Mohsin Qazilbash v. Muhammad UsmanMalik and. others 1999 SCMR 1794; Haji Mir Aftab v. The State 1979 SCMR 320;Abdul Aziz v. Bashir Ahmed and the State PLD 1966 SC 658 and Muhammad Bashir v.The State 1991 PCr.LJ 2422 ref.

M. Zahoor Qureshi,Advocate-on-Record for Petitioner.

Mian MohibullhKakakhel, Senior Advocate Supreme Court for Respondent No.1 (appeared afterCourt hours).

Date of hearing:23rd April, 2009.

JUDGMENT

IJAZ-UL-HASSANKHAN, J.—Through instantpetition under Article 185(3) of the Constitution of the Islamic Republic ofPakistan, 1973, Zar Muhammad, petitioner, seeks leave to appeal from a judgmentof the Peshawar High Court, Peshawar dated 15-2-2008, granting bail to MianJafar Shah, respondent No. 1, in case F.I.R. No.620 dated 9-9-2007 registeredunder sections 302/324/34, P.P.C. at Police Station Nowshera Kalan.

2. Facts of the case have been incorporated in detailin the impugned judgment as well as in the memo of petition and need not bereiterated. Suffice is to state that the respondent along with other co-accusedwas charged for having on 9-9-2007 at 7-30 hours committed murder of ParvezKhan (deceased) and attempted murder of petitioner. The respondent moved anapplication before learned Judicial Magistrate; Nowshera to secure his releaseon bail and on its refusal vide order dated 28-9-2007, approached learnedAdditional Sessions Judge, Nowshera for similar relief but his request wasturned down vide order dated 23-10-2007. Feeling aggrieved, respondent,preferred Criminal Misc. before .learned High Court, which has been allowed on`medical ground’ granting bail to respondent through the judgment impugnedherein.

3. Mr. M. Zahoor Qureshi, Advocate-on-Record for thepetitioner, in support of the petition contended that overwhelming evidence wasavailable on record to prove complicity of the respondent in the commission ofcrime and that respondent is suffering from common disease which canconveniently be treated in jail hospital and does not appear to be lifethreatening. To substantiate the contentions, reliance was placed on MuhammadArshad v. The State and another 1997 SCMR 1275 and Raza Mohsin Qazilbash vMuhammad Usman Malik and others 1999 SCMR 1794

4. A Medical Board was constituted under the order oflearned High Court to ascertain as to whether or not the respondent wassuffering from serious heart disease needing proper treatment not available inthe jail hospital. The Board consisting of four eminent doctors, submitted thereport which reads;–

“Result receivedaccording to which he is known cardiology case with HCV+ve and will needmanagement.”

5. Having considered the matter from all angles, andthe medical report, we find that learned High Court has reached the conclusionwith valid and sound reasonings which are not open to legitimate exception. Thegravity of respondent’s sickness constitutes legitimate basis for hisentitlement to bail under the proviso to section 497, Cr.P.C. Learned counselfor the petitioner, despite his best efforts, could not point out anyinfirmity, legal or factual, in the impugned judgment justify interference bythis Court. Haji Mir Aftab v. The State 1979 SCMR 320; Abdul Aziz v. BashirAhmed and the State PLD 1966 SC 658 and Muhammad Bashir v. The State 1991PCr.LJ 2422.

6. In the circumstances, we find no merit in thispetition, which is dismissed and leave refused.

H.B.T./Z-7/S Leaverefused.