2012 P Cr. L J 1228
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
BOHAIR QAZI and others ---Applicants
Versus
THE STATE---Respondent
Criminal Miscellaneous Bail Nos. 111 to 118 of 2012, decided on 6th April, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(1) ---Penal Code (XLV of 1860), Ss. 392/34/223/224/225- B---Robbery, common
intention, escape from confinement or custody negligently suffered by public servant, resistance
or obstruction by a person to his lawful apprehension, or escape or rescue ---Bail, grant of ---
Bail sought on medical grounds ---Contention of the accused was that due to development of
gangrene and amputation of his right leg, his continued detention in the jail ward was hazardous to his life and the treatment required by him could not be provided within the jail hospital--- Validity --- Medical certificate and advice issued by the doctor clearly
demonstrated that the accused was suffering from gangrene, which was a seri ous and potentially
life threatening disease, which could not be cured and controlled in the jail ward and it needed special treatment which was not possible in the said ward ---Continued detention of the
accused was a direct threat to hi s life and bail could not be held as a matter of punishment and
the accused was entitled to bail on the ground of sickness, as the disease he was suffering from
was fatal to his life ---Accused had made out a good case for grant of bail on the ground of
sickness under S.497(1) of the Cr.P.C., and accordingly, he was enlarged on bail.
Mian Manzoor Ahmed Watto v. The State 2000 SCMR 107; Haji Mir Aftab v. The State
1979 SCMR 320 and Mian Muhammad Shahbaz Shareef v. The State MLD 1997 2484 rel.
(b) Crimin al Procedure Code (V of 1898) ---
----S 497(1) ---Bail on medical ground for non -bailable offence---Principles ---Correct criteria for
grant of bail to an accused in a non- bailable case on medical ground would be that the sickness
or ailment with which the accused 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.
Mian Manzoor Ahme d Watto v. The State 2000 SCMR 107 quoted.
Syed Ayaz Zahoor for Applicants.
Abdul Sattar Durrani, Additional P.- G. for the State.
Date of hearing: 2nd April, 2012.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Bohair Qazi son of Muhammad Saeed
Qazi, caste Baloch, presently confined in Jail Ward, Civil Hospital, Quetta, has approached this
Court for grant of post -arrest bail in F.I.Rs. No.l15 of 2010, 116 of 2010, 108 of 2010, 114 of
2010, 106 of 2011, 4 of 2010, of Police Station Gwadar, 2 of 2010 and 3 of 2010 of Police
Station Jiwani. Since in all the aforesaid F.I.Rs. the applicant seeks bail on medical ground, as
such. I propose to dispose of the same through this single order.
2. The applicant applied for bail i n all the aforesaid cases, which have been rejected by
the trial Judge, with the following observations: --
"The bail application is hereby returned to the learned counsel for the accused/applicant
for the reason that the accused/applicant is neither arrested by police authority, Gwadar nor
accused/applicant surrendered himself before this court. Accused/applicant is fugitive from law."
Syed Ayaz Zahoor, Advocate, pressed for bail, exclusively on the medical ground with
the contention that due to a mputation of right leg and development of gangrene, the continued
detention of the applicant in Jail Ward is hazardous to his life and the treatment, which he needs
off and on for his ailment, cannot be provided within Jail Ward of Civil Hospital, Quetta.
4. Before dilating upon the contentions raised by learned counsel, it would be advantageous
to reproduce herein below the certificate issued by Dr. Masood Ahmed Qazi, Consultant
Orthopedic Surgeon, Civil Hospital, Quetta, which speaks as under: --
"It is certified that the patient with the name of Bohair Qazi nick name Waqar present in
Orthopedic Ward by Gwadar police with bullet injury of right femur with vascular injury on 30th
December, 2011 then he was twicely operated in this Ward and his femur was fixed thereafter
demarcation of gangrene his leg was amputated below right knee joint. Since that time he is admitted in jail ward under custody of Gwadar police. The constable from Gwadar police Habibullah and Hawaldar Nawaz are present in Quetta to take responsibility of policing."
Similarly, on 14th March, 2012, the following advice was given to the authorities
for taking the applicant to Karachi or abroad, where, reportedly, a "Flap Transplantation
Surgery Facilities" is available:--
"We have advised for a higher level amputation, which we can do here only, but patient
can be benefited if he can be referred abroad or in Karachi where fascio -musculocutaneous free
flap transplantation surgery facilities are available."
5. The afo resaid medical advice and certificate clearly demonstrate that the
accused/applicant is suffering from gangrene, which is a serious and potentially life -threatening
disease that arises when a considerable mass of body tissue dies (necrosis). This may occur after
an injury or infection, or in people suffering from any chronic health problem affecting blood
circulation. The primary cause of gangrene is reduced blood supply to the affected tissues, which results in cell death. The prescribed treatment for gang rene is usually surgical debridement, with
amputation necessary in many cases. Antibiotics alone are not sufficient because they do not penetrate infected muscles sufficiently. Besides, debridement with amputation, another treatment is Hyperbaric Oxygen Therapy. This form of treatment uses under increased pressure and increased oxygen content. The outcome of this treatment is to allow blood to carry more amounts of oxygen, which helps stop the growth in bacteria.
6. Admittedly, both the aforesaid forms of treatments are specialized treatment and the
gangrene is a dangerous disease, which could not be cured and controlled in the Jail Ward and it
needs specialized treatment, which is, obviously, not possible in Jail Ward. By holding this vi ew,
I am fortified from a case of "Mian Manzoor Ahmed Watto v. the State" 2000 SCMR 107, relevant portion whereof is reproduced as under: --
"Correct criteria for grant of bail to an accused in a non -bailable case on medical ground
would be that the sickness or ailment with which the accused 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 capa city or is hazardous to his
life."
Similarly the Hon'ble Apex Court, while dealing with the proposition in a case of "Haji
Mir Aftab v. the State" 1979 SCMR 320, has observed as under: --
"S. 497, second proviso read with S. 426---Bail --Sickness and i nfirmity ---Quantification
of---Person once found sick and infirm gets his case covered by second proviso to S.497---Not
open to Court to quantify such person's sickness and infirmity---Petitioner at least 20 years of
age and suffering from duodenal ulcer a nd eye -trouble involving old trachoma ---Petitioner, held,
made out a case for grant of bail moreso when throughout his trial petitioner remained on bail, without any complaint with regard to abuse of bail, and also for reason of parties being closely related to each other and occurrence having taken place at spur of moment without any
premeditation."
I may cite, with advantage, the case of "Mian Muhammad Shahbaz Shareef v. the State",
1997 MLD 2484, wherein it was observed that medical reports, certifica tes, prescriptions and the
recommended treatment of the accused by medical experts revealed that he was suffering from a
prolapse disc of serious nature requiring specialized treatment not available in jail and that his condition was likely to deteriorate further if not properly attended to and subjected to essential treatment which might even lead to paralysis. Facility of the recommended treatment of accused, admittedly, was not possible in jail.
7. I have given my anxious consideration to the contention put forth by learned counsel for
the parties and after having gone through the record available to me, I am of the view that the
applicant is suffering from gangrene, which is, admittedly, a life -threatening disease and the
applicant not likely to have such treatment of his choice in Jail Ward. In spite of amputation of his right leg, the infection has not been cured completely and the accused is still suffering from gangrene. It has also come on record that further a mputation of the leg of the applicant may be
carried out in order to save his life, which is on stake. The disease is, obviously, hazardous to the
life of the applicant and the required specialized treatment is not available in jail premises and
his continued detention is a direct threat to his life. It may be observed that bail cannot be held as a matter of punishment and the petitioner is entitled to bail on the ground of sickness, as the disease, he is suffering from, is fatal to his life.
8. For the aforesaid discussion, I am of considered view that the applicant has been able to
make out a good case for the grant of bail, on the ground of sickness under first proviso
subsection (1) of section 497 of the Cr.P.C., therefore, I am inclined to enlarge applicant Bohair
Qazi son of Muhammad Saeed Qazi on bail in F.I.Rs. No.115 of 2010, 116 of 2010, 108 of 2010, 114 of 2010, 106 of 2011, 4 of 2010, of Police Station Gwadar, 2 of 2010 and 3 of 2010 of Police Station Jiwani, subject to furnishing su rety bonds to the tune of Rs.200,000 (rupees two
hundred thousand only) in each case with one surety and PR bond of the like amount to the satisfaction of the Additional Sessions Judge, Gwadar.
These are the reasons of my short order dated 2nd April, 2012, announced in the open
Court.
M.W.A./25/Q Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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