Jan Muhammad V. The State,

2024 Y L R 1624 [Balochistan] Before Sardar Ahmed Haleemi, J JAN MUHAMMAD and another ---Applicants Versus The STATE--- Respondent Criminal Bail Application No. 689 of 2022, decided on 13th January, 2023. (a) Criminal Procedure Code (V of 1898) --- ----S. 497--- Penal Code (XLV of 1860), Ss. 324, 392, 353 & 186--- Attempt to commit qatl- i- amd, robbery, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of his public functions ---Bail, grant of ---Accused suffering from fire -arm injuries on vital parts of body---Accused had been apprehended in an injured condition due to retaliation by police, which reached the place of occurrence soon after the commission of the alleged robbery by the accused along with other companions --- Record transpired that an application was filed by the accused before the Trial Court for their medical treatment with the contention that no proper medical facility was available in District Jail Ward ---In pursuance thereof, the Trial Court directed the jail authorities to shift the accused to hospital for proper treatment ---Perusal of the opinion of the Police Surgeon depicted that one of the accused was admitted to Surgical Unit, due to laparotomy caused by firearms, whereas other accused was admitted to Orthopedic Ward due to fractures in left humerus and tibia bones caused by firearms ---According to the Police Surgeon's opinion, the accused's condition was stable, however, the medical documents annexed with the record reflected that the injuries caused by the firearms were on vital parts, which required extensive care and treatment ---From the record, it was manifest that the applicants were under treatment for more than one and half months and still their wounds had not healed---Object of the criminal trial was that the accused was made to face the trial and not to punish undertrial prisoner for the alleged offence ---Bail application was allowed, in circumstances. Mian Manzoor Ahmed Watto v. State 2000 SCMR 107 and 2022 SCMR 326 ref. Muhammad Yousafullah Khan v. State PLD 1995 SC 58 and Mian Manzoor Ahmed Watto v. State 2000 SCMR 107 rel. (b) Criminal Procedure Code (V of 1898) --- ----S.497--- Bail---Tentative assessment--- Scope ---Observations made in the bail order are tentative in nature, which will not influence the merits of the case at trial. Jamil Ramzan and Rehmatullah Momin for Applicants. Fazal -ur-Rehman, State Counsel. Date of hearing: 11th January, 2023. ORDER SARDAR AHMED HALEEMI, J. ---This order disposes of Criminal Bail Application No. 989 of 2022 filed by applicants/accused Jan Muhammad and Raz Muhammad in case FIR No. 220 of 2022 dated 12th November 2022 under sections 324, 353, 186, and 392, P.P.C. lodged at Police Station Kharotabad, Quetta on the complaint of one Sher Gul with the history that on 12th November 2022 at about 10:50 p.m., when the complainant on his motorbike reached at Killi Badazai, three muffled persons boarded on two Honda motorbikes we re standing on the corner of the street; when he reached near, one of the accused took out the key of his motorbike, whereas the other two persons equipped with T.T pistol forcibly snatched Rs.75,000/ - and mobile phone having SIM Nos. 03337852412 and 03131808725 from him; Further he alleged that in the meanwhile another person namely Ghulam Rasool was also stopped in the street and the accused persons forcibly snatched the cash amount and his mobile; in the meantime, the Eagle Squad Police on three motorbikes reached the place of occurrence and the complainant told them about the incident when the Eagle Squard Police followed the accused person in the street: the accused persons started indis -criminate firing upon them; which was retaliated and as result, two accused persons were injured and apprehended, whereas, third made his good escape by taking the benefit of darkness, hence this FIR.

2. After the arrest of the applicants/ accused, the investigation was carried out and on completion thereof, the challan of the case was submitted before the learned Additional Sessions Judge -IX, Quetta (hereinafter the "trial Court").

3. Initially, the applicants/accused repeated the post -arrest bail application twice, however, the same have been rejected, whereafter, the applicants/ accused filed the post - arrest Bail Application No.162 of 2022 before the trial Court and the said application was also rejected vide order dated 20th December 2022.

4. Learned counsel for applicants/accused contended that instant bail application has been filed on the sole ground of medical; the applicants/accused were critically injured due to the firing of Eagle Squad Police and both were operated in the Trauma Center of Sandeman Provincial Hospital (SPH) Quetta; due to nature of injuries and non- hygienic condition of jail ward, the applicants/accused needed to follow up checkup regularly and the medical facilities in the jail are not adequate and lastly prayed for the release of applicants/accused on bail. In support of his contention learned counsel placed reliance on the case of Mian Manzoor Ahmed Watto v. State 2000 SCMR 107.

5. Learned counsel for the State controverted the contention of learned counsel for applicants/accused and submitted that the post -arrest bail applications of applicants/accused were rejected twice and now they made an attempt on medical grounds. According to Police Surgeon SPH, Quetta, the applicants' condition is stable and proper treatment is being provided to them; further, contended that the applicants/ accused are hardened criminals and lastly prayed for rejection of bail application. Learned State counsel relied upon the judgment reported in 2022 SCMR 326.

6. I have considered the arguments of learned counsel for the parties and have gone through the record with their able assistance.

7. Perusal of the record reveals that the applicants have been apprehended in injured condition due to retaliation of Eagle Squad Police, who reached the place of occurrence soon after the commission of the alleged robbery by the applicants/accused with their other companion. Whereafter, the applicants were shifted to Trauma Center SPH, Quetta, where the applicant Jan Muhammad was operated on 12 -11-2022 and applicant Raz Muhammad was operated on 14- 11-2022 and they were discharged on 16- 11-2022 and 19- 11-2022 respectively, thereafter they were shifted to District Jail Ward, Quetta.

8. It transpired from the record that an application was filed by the applicants through their counsel before the trial Court for their medical treatment with the contentions that no proper medical facility was available in District Jail Ward. In pursuance thereof, the trial Court directed the jail authorities to shift the applicants to SPH, Quetta for proper treatment. The Medical Superintendent SPH, in compliance of the order of the trial Court, submitted a detailed report followed by the opinion of the Police Surgeon which reads as follows: "With reference to Additional Session Judge -IX Quetta office letter No. NOPS/2041 dated 19th December, 2022 on subject cited above, it is stated that the prisoner i.e. Jan Muhammad son of Gul Muhammad is admitted in Surgical Unit -IV, SPH, Quetta due to Laparotomy caused by firearm and Mr. Jan Muhammad is under treatment at Sandeman Provincial Hospital, Quetta. Furthermore, Mr. Raza Muhammad son of Faheem Ahmed is also admitted to Orthopedic Ward due to firearm injury and fractured left Humerus and Tibia Bo nes. It is also to inform you that the surgeries of both prisoners were performed at Trauma Centre and Emergency Department, Quetta, and further referred to Surgical -IV and Orthopedic Wards, SPH Quetta for additional treatment and still they are being provided health care treatment at Sandeman Provincial Hospital, Quetta."

9. A perusal of the opinion of the Police Surgeon depicts that applicant/ accused Jan Muhammad was admitted to Surgical Unit- IV, due to laparotomy caused by firearms, whereas applicant Raz Muhammad was admitted to Orthopedic Ward SPH, Quetta due to fractures in left Humerus and Tibia bones caused by firearms. According to the Police Surgeon's opinion, the applicants' condition is stable, however, the medical documents annexed with the record reflect that the injuries caused by the firearms are on the vital parts, which require extensive care and treatment. The principle for grant of bail on the medical ground has been laid down by the Honorable Supreme Court of Pakistan in the case of Muhammad Yousafullah Khan v. State PLD 1995 SC 58, where it has been held as follows: - "From the above discussed position, it is clear to us that medical ground can be granted under section 497 Cr.P.C. if the Court reaches the conclusion on the basis of medical report that aliment with which the accused is suffering is such that it cannot be properly treated while in custody in jail. The fact that the appellant is not suffering from any particular type of injury (as observed by learned judged that there was no fracture of bone in that case), would not be ground either to refuse or grant the bail on medical grounds. The correct criteria for grant of bail to an accused in non- bailable case, on medical ground, in our view, would be that the sickness or aliment with which the accused is suffering is much that it cannot be properly treated within the premises of jail and that some specialized treatment is needed and his continued detention in jail is likely effect his capacity or hazardous to his life."

10. From the record, it is manifest that the applicants are under treatment for more than one and half months and still their wounds have not healed up. The object of the criminal trial is that the accused is made to face the trial and not to punish under trial prisoner for the alleged offence. Reliance in this regard is placed in the case of Mian Manzoor Ahmed Watto v. State 2000 SCMR 107, wherein it has been held as under: - "As discussed earlier, the object of criminal prosecution is not to punish an under -trial prisoner for the offence alleged against him. The object of criminal trial is that the accused is made to face the trial and answer the criminal charge against him. Since we have reached the conclusion after considering the medical report received from A.F.I.C. on the condition of the appellant that his continued detention in the jail is hazardous to his life and that the specialized treatment needed by him, cannot be provided within the jail premises, we are inclined to admit the appellant to bail in all the above three cases."

11. For the above reasons, this Criminal Bail Application is allowed and applicants i) Jan Muhammad son of Gul Muhammad and ii) Raz Muhammad son of Faheem Ahmed are admitted to bail in FIR No. 220 of 2022, Police Station Kharotabad, Quetta, under Sections 324, 353, 186 and 392, P.P.C. subject to furnishing surety of Rs. 200,000/ - (Rupees Two Lac) each, with PR bond of the like amount to the satisfaction of Additional Registrar of this Court or the trial Court. The observations made herein -above are tentative in nature and same shall not influence the merits of the case at trial. JK/65/Bal. Bail granted.