July 2024

PLJ 2024 Cr.C. 852
[Lahore High Court, Multan Bench]

Present: Sardar Muhammad Sarfraz Dogar, J.

MUHAMMAD AKMAL--Petitioner

versus

STATE etc.--Respondents

Crl. Misc. No. 1554-B of 2023, decided 11.9.2023.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), S. 302--Medical ground--Lost sight of both of his eyes--Five members Board--Post Arrest Bail--Grant of--Allegation against the petitioner is that he while armed with pistol 30-Bore opened straight fire shots upon deceased, which landed on different parts of his body--Medical ground--During his incarceration in the jail, he has lost sight of both of his eyes and has become blind, treatment chart of Nishtar Hospital due to sudden vision loss of both eyes--Petitioner is suffering from “advance Retinopathy with poor prognosis” to evaluate the plea of blindness of the petitioner--Five members Board--Petitioner had a known history of “night blindness” since childhood, which has now been developed into day blindness too. There is no perception of light in both the eyes of petitioner and there is absence of direct & consensual light reflexes--The blindness from both the yes is admittedly not just a disease but, at present, due to non-availability of medical treatment, a permanent disability of the petitioner--Petitioner has become blind from both the eyes--Petition is hereby accepted and the petitioner is admitted to post arrest bail. [Pp. 853, 854, 855 & 857] A, B, C, D, E, F, I, J

2018 SCMR 2023; 2016 SCMR 1536; PLD 2020 SC 635;
2009 SCMR 425; 2000 SCMR 212; 1997 SCMR 320;
PLD 1995 SC 58 ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Medical ground--Criteria for grant of bail--The sickness or ailment with which his suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life. [P. 855] G

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Medical ground--Criteria for grant of bail--Once a person is found to be sick and infirm, it is not open to the courts to quantity his sickness and infirmity. [P. 857] I

PLD 1995 SC 58; 2018 SCMR 2023 ref.

Mr. James Joseph, Advocate for Petitioner.

Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.

Mr. Tariq Mehmood Dogar, Advocate for Complainant.

Date of hearing: 11.9.2023.

Order

Through this petition, the petitioner has sought post arrest bail in case FIR No. 1284/2022, dated 05.11.2022, registered for the offence under Section 302, PPC with the Police Station New Multan, District Multan.

2. Precisely, allegation against the petitioner is that he while armed with pistol .30-Bore opened straight fire shots upon Muhammad Saleem deceased, which landed on different parts of his body and as a result whereof which, Muhammad Saleem succumbed to the injuries at the spot.

3. Learned counsel for the petitioner argued that case against the petitioner is false, fabricated and fictitious, which is based on ulterior motives and mala-fide intentions; that the petitioner is suffering from eye disease, due to which he has lost eye-sight of both of his eyes and has become totally blind; that treatment of said disease is not possible in the jail; that the petitioner is also a chronic patient of Tuberculosis (TB), which is also not cure- able in the jail and that the hon’ble Supreme Court of Pakistan has held in a number of cases that the person suffering from serious ailment, which cannot be cured in the jail, deserves the concession of bail on the ground of ailment.

4. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently resisted the bail petition. It has been contended that the petitioner is only colour blind and not completely blind; that the petitioner is being treated in the jail; therefore, he is not entitled for the concession of post arrest bail on this score. Learned counsel for the complainant while relying upon the case law titled “Sharjeel Inam Memom v. National Accountability Bureau” (2018 SCMR 2023) further argued that purpose of bail on medical ground is to ensure the under-trial prisoner to avail medical treatment and surgical intervention in hospital of his choice in the country and not to set him at liberty till conclusion of trial. Lastly, learned counsel for the complainant prayed for dismissal of instant petition while further contending that the petitioner is specifically nominated with specific role.

5. Arguments advanced on behalf of both the sides have been heard and record has been perused.

6. There is no cavil to the proposition that while deciding the post arrest bail, only tentative assessment is to be made and deeper appreciation is neither permissible nor desirable. Through instant petition, the petitioner has taken a specific plea of grant of bail on medical ground i.e. during his incarceration in the jail, he has lost sight of both of his eyes and has become blind, and therefore, his further incarceration in jail is dangerous to his health and life. To substantiate this plea, learned counsel for the petitioner has annexed with this petition the treatment chart of Nishtar Hospital Multan (Annexure-D). The perusal of said documents reveals that due to sudden vision loss of both eyes, the petitioner was examined in Department of “Ophthalmology” on different dates i.e. on 21st of December, 2022, 28th of December, 2022 and 16th of January, 2023. On the latter date, Vitro Retinal Surgeon Dr. Nousherwan Aadil diagnosed that the petitioner is suffering from “advance Retinopathy with poor prognosis”. Yet, since the matter was of sensitive nature, hence, to evaluate the plea of blindness of the petitioner, vide order dated 30.03.2023, this Court directed the Medical Superintendent of Nishtar Hospital Multan to constitute a board of not less than five members including an E&T specialist for assessment to the vision of both eyes of the petitioner. In compliance thereof, Board comprising Medical Superintendent, Ophthalmologist, ENT Surgeon, Neurosurgeon and Neurophysician was constituted, who examined the petitioner on 13.04.2023. The said board submitted its report before this Court which encompasses the opinions of all of the specialists. As per opinion from Neurosurgeon, “…His eyes examination reveals absence of perception to light bilaterally with both direct & Consensual Light Reflexes absent.” Similarly, the opinion from Neurophysician, reads as follows:

“History of Blindness since Childhood. On examination, No perception of light. Direct & Indirect light reflexes absent.

Fundus> Retinities Pigmentosa.”

Apart from the above noted opinions of specialists, the opinion of “Ophthalmologist” being the most relevant is of vital importance, which is hereby reproduced below:

“OPINION FROM OPHTHALMOLOGIST”

The undertrial prisoner Muhammad Akmal S/o Riaz Hussain, is a known case of D.M + HTN + IHD + Asthma. On examination Retinitis Pigmentosa. History of Night Blindness since Childhood later he developed day blindness also. On examination his vision has been totally lost. Visual acuity is NPL in both Eyes Discs are slight by Pale Vessels are attaunated. Pigmentary degeneration which severe and diffuse in both eyes. Clinically he is declared “Leg ally B lind” by both Eyes.

(OPD slip is attached)”

(Emphasis added)

Now, therefore, taking into consideration the report of Medical Board constituted in compliance of order of this Court and documents annexed with this petition, prima facie, it has been established on record that the petitioner had a known history of “night blindness” since childhood, which has now been developed into day blindness too. There is no perception of light in both the eyes of petitioner and there is absence of direct and consensual light reflexes. There is nothing on record which could suggest that the cure for such a patient of “Retinitis Pigmentosa” (Retinitis pigmentosa (RP) is a group of rare eye diseases that affect the retina (the light-sensitive layer of tissue in the back of the eye). RP makes cells in the retina break down slowly over time, causing vision loss)[1] is available in Jail. The learned Deputy Prosecutor General for the State also half-heartedly admitted the fact that there is no such facility in Jail. The blindness from both the eyes is admittedly not just a disease but, at present, due to non-availability of medical treatment, a permanent disability of the petitioner which makes him the most vulnerable and there is every likelihood that in existence of such a permanent disability, the life of petitioner would be constantly in danger as it requires constant care and around the clock attendant, which are admittedly not available in jail. It is also a generally known factor that non-availability of the regular attendant to a man who has lost sight of both of his eyes would certainly entail into unhygienic personal development/health condition of said blind man as without a personal attendant, he would not be able to make himself clean and his overall health would get worsen with the passage of every minute.

7. The criteria for grant of bail to an accused in a non-bailable case on medical ground is that the sickness or ailment with which he is suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life. It has been held by the august Supreme Court of Pakistan in case titled “Mian Nazir Ahmad v. The State, etc.” (2016 SCMR 1536) that if an accused is patient of acute disease, which cannot be satisfactorily treated in jail and it is not possible to provide first aid in case of emergency of said disease, then the undertrial petitioner can be granted bail. The relevant portion in verbatim is hereby reproduced for ready reference:

"یہاں پر اس مسلمہ اصول جو کہ عدالت عظمٰی کی کہی نظایر پر مبنی ہے کا حوالہ دینا موزوں ہو گا کہ اگر کوئی ملزم ایسی سنگین مرض میں مبتلا ہو جس کا نہ تو قید و بند میں تسلی بخش علاج ممکن ہو اور نہ ہی جیل میں حوالاتی ملزم کو ہنگامی حالت میں ہنگامی بنیادوں پر ابتدائی طبی امداد فراہم کرنا ممکن ہو، نیز یہ کہ صرف اسی صورت میں حوالاتی ملزم کو ضمانت پر رہائی کا حقدار ٹھہرایا جا سکتا ہے جب اعلیٰ معالجین خصوصی کی قائم کردہ مجلس مکمل تحقیق کے بعد حتمی رائے دے کہ ایسے ملزم کے لیے مزید قید و بند کی صعوبتیں برداشت کرنا ناممکن اور اسکی زندگی کے لیے خطرناک ثابت ہو سکتی ہیں یادہ ایسے موذی مرض میں مبتلا ہو جو ساتھی قیدیوں کیلیے وہای مرض کی شکل اختیار کر کے پورے جیل کے احاطے میں پھیلنے کا خدشہ ہو۔"

Guidance can also be sought from the case laws titled “Khawaja Anwer Majid v. National Accountability Bureau through Chairman NAB and another.” (PLD 2020 Supreme Court 635) and “Sardar Amjad Ali Khan v. The State” (2009 SCMR 425).

8. Furthermore, in the case titled “Abbas v The State” (2000 SCMR 212), the august Supreme Court of Pakistan granted bail to an accused/undertrial prisoner who was suffering from “hepatitis C” (viral infection) whereas in the instant case, the petitioner has become completely blind and is squarely dependent on the others. It has been held in Haji Meer Aftab’s case (1997 SCMR 320) that once a person is found to be sick and infirm, it is not open to the Courts to quantify his sickness and infirmity.

9. It is also not out of place to mention here that learned counsel for the complainant has failed to counter the opinion/findings of Medical Board in its report. While, on the other hand, the medical report, being highly technical and opinion expressed by the medical board cannot be brushed aside lightly by the Court in the absence of any counter- opinion or any medical literature placed before the Court to contradict the opinion given by the Board. Guidance are sought from the case law titled “Malik Muhammad Yousafullah Khan v. The State & another” (PLD 1995 SC 58).

10. So far as the case law (2018 SCMR 2023) relied upon by the learned counsel for the complainant is concerned, the facts and