1. A charge of attempt to smuggle punishable under section 156(1), clause (8) of the Customs Act has been brought against the applicant.
2. Briefly the facts are that the Customs Intelligence received information that a large quantity of charas will be smuggled out of the country by the applicant to Montreal, Canada under the cover of unaccompanied baggage of one N. Baoileav, a Canadian national. A strict surveillance was therefore kept by the authorities. On 16-5'-1978, two leading Suzuki Vans were seen unloading 6 wooden boxes in presence of the applicant near Mama Parsi School. These boxes were subsequently seen being reloaded into another Suzuki Van which took them to West Wharf and the packages were handed over to the hopping agents at the con--tainer Yard Berth No. 24. On the next day information was received that the applicant was waiting at the City Railway Station to receive the shipping order relating to the consignment. In pursuance of this the Senior Preventive Officer Mr. S. M. Sibtain, along with other staff proceeded to the railway station and apprehended the applicant as soon as one Masroor handed over papers to him. The Customs authorities searched the person of the applicant in presence of the witnesses and secured from his shirt pocket a shipping order dated 17-9-1978 issued by M/s Forbes Campbell and Karachi, for shipment of 6 cases of personal effects in the name of N. Boileav. The applicant then led the Customs Staff to West Wharf and pointed out the 6 wooden boxes destined for Montreal, Canada, which were opened and charas was found packed in all the 6 cases weighing 593 Kgs. The duplicate copy of the shipping bill dated 14-9-1978 was also recovered which had been handed over to the ship agents. After the usual investigation the case has teen sent up for. Trial before the learned Special Judge (Customs and Taxation) Karachi, against the applicant and 2 absconding accused.
3. The applicant's request for bail was turned down by the learned trial Court by its order dated I1-10- 1978. The applicant now seeks his release on bail from this Court. It was first contended on behalf of the applicant there are no reasonable grounds for believing that the appli--cant is guilty of the charge levelled against him. It was argued that the applicant was apprehended at the Karachi City Railway Station at about 11.15 a. m. And yet the F. I. R. Was lodged at 6 in evening with unexplained delay of about 7 hours. It was also contended that the F. I. R. Is not admissible in evidence as the same has been lodged after full investigation. These circumstances were pressed into service in support of the arguments that the case against the applicant is suspicious.
4. As is well established at the stage of bail the Court is not required to embark upon the assessment of evidence in order to determine its suffi--ciency or reliability for obtaining conviction of the accused. However, in order to determine the question whether there are reasonable grounds for believing that the accused is guilty of the offence, the Court has to examine the materials placed before it. There seems to be in possession of the prosecution that the applicant was apprehended in the waiting room of 3rd class passengers at City Railway Station and from his possession shipping order No. 18657 dated 17-9-1978 was secured after the same was handed over to him. The shipping order has been issued by Forbes Forbes Campbell and Co. Limited in the name of Mr. N.
5. Boileav in respect of 6 cases of personal effect. There is evidence in The posses--sion of the prosecution that the applicant was connected with the handing over of these cases for shipment.
6. Mr. Sajad Ahmed who is working in the office of Reliable Services as on outdoor clerk has supported the prosecution in his statement during the investigation and has stated that he was given instructions by his office that he along with P. W Masroor Ali should dated 14-9-1978 and the 6 packages covered under the said shipping bill from the applicant who was sitting in the office. On 16-9-1978 the witness reached Plaza Quarters along with Masroor Ali when the applicant along with 3 others loaded the 6 packages in the vans, which were taken to West Wharf. After the formalities of the Customs and K. P. T were completed, the boxes were handed over by him to Forbes Forbes and Co. For shipment. Monsoor Ali, also working in the same firm has supported the version of P. W.
7. Sajad Ahmed and has further stated that the applicant had given him instructions that after getting the shipping order the same should be handed over to- him at Railway Station in the 3rd class waiting room. According to the instructions he gave the ship-- ping order to the applicant.
8. There is also the evidence of P. Ws. Cons-- table Muhammad Ramzan, Aslam and Syed Amdazul Akhtar, Railway Clearing Agent with regard to the recovery of shipping order from the possession of the applicant. Two witnesses Syed Rehman and Syed Ali Abba, who are working in the office of Messrs Forbes Forbes Campbell & Co. Have also implicated the applicant as having pointed out and identified 6 wooden cases that were lying in the yard. These witnesses also stated that the clerk of the firm produced the Shipping Bill No. 9085 as the covering document for the said 6 cases.
9. The cases were broken open and were found to contain charas, Learned counsel for the State submitted` that there was no de ay to lodging the report as they delay occurred on account of the fact that the accused led the Customs officials for the purpose of pointing out of the boxes. There is therefore, no reason at this stage to believe that the applicant is not guilty of the offence.
10. However, it was forcefully contended on behalf of the applicant that he is a patient of serious heart ailment and his remaining custody would inevitably be detrimental to his health and even to his life. In this connection it may be stated that after his arrest by the Customs Autho--rities while the case was under investigation, on 18-9-1978 an application was moved on behalf of the applicant before the trial Court with a request to get the applicant treated for his disease. In this application the medical history of the applicant was narrated along with the docu--mentary evidence tracing back his heart ailment, to the year 1972. After taking into consideration the relevant facts the trial Court passed an order directing the Collector of Customs to get the applicant treated by his own doctor. In pursuance of this order the applicant was referred to Dr. Prof. S. M. Rab Cardiogist and Physician, Head of the Department of Madicine, rinnah Postgraduate Institute, Karachi. The latter advised that the applicant may be admitted in the hospital. However it seems that no bed was available in the special ward. By a further order the trial, Court on 1-10-1978, referred the applicant for medical examination and report through the Superintendent, Central Prison Karachi. The R. M. O.
11. New paying Ward, Civil Hospital, Karachi, by his certificate dated 7.10- 1978, opined that the applicant is suffering from Ischaemic heart disease with Diabetes. A certificate dated 16-10-78 by Prof, Khawaja Muin Ahmed, Professor of Medicine, Civil Hospital, Karachi was also produced certifying that the applicant was suffering from Ischaemic Heart disease and diabetes mellitus. The documentary evidence regard in the treatment received bar the applicant for heart ailment in London its the year 1974 was-also produced. Additionally, documentary evidence in connection with the treatment received by the applicant in Pakistan in the year 1976, by Professor S. M. 'Rab, Physician and Cardiologist, Head of the Department of Medicine, Jinnah Postgraduate Medical Centre, was also produced Finally the report of two Doctors, Prof. S. H. Shafqat, Professor of Cardiology, J. P. M. C., Karachi and Prof. S. M. Rab Professor and Head of the Department of Medicine, J. P. M. C. Karachi has been produced before me. This report was sent in pursuance of a request from the Home Department, Government of Sind in October, 1978, while the applicant was in detention. According to the aforesaid report there was evidence of myocardian infarcation and left ventricular failure and the doctors opined that the patient needs to be treated in the hospital. It is stated in the aforesaid report that no bed is available in the special ward but a bed in the general ward of either of the two doctors can be arranged for transfer of the prisoner.
12. Learned counsel for the State did not dispute the correctness of the fact and the evidence that the applicant is suffering from heart ailment and diabetes. She however, contended that since the applicant is now admitted in the hospital in custody it is not necessary to release him on bail.
13. Additionally, she submitted that there is apprehension that upon his being released the applicant would tamper with evidence. As regards the last submission there is nothing on the record that the applicant would tamper with evidence and a mere apprehension unsupported by any material on record, in my opinion, is not sufficient to deprive the applicant of the right to be released on bail if he is otherwise so entitled.
14. The law as contained in section 497, Cr. P. C. Proviso one, clearly empowers the Court to release a person accused of non- bailable offence if h: is sick or infirm. In Abdul Aziz v. Bashir Ahmad (PLD 1966 SC 658), their Lordships observed; "in a case where there is reasonable ground for believing that an accused person is guilty of an offence punishable with death or with transportation for life, bail may yet be granted if he be sick or infirm." In Muhammad Aslam Gobaya v. State (1977 P Cr. L J 394) following this decision Aslam Riaz Hussain, J. (as he then was) granted bail to the accused charged under section 302/34, P. P. C. Where the accused according to the medical report had suffered widespread damage to the anterolateral surface of the heart.
15. Now, according to the report on record the applicant is suffering from Ischaemic heart disease.
16. Ischaemia' in Derland's Medical Dictionary (25th Edition) means deficiency of blood in a part, due to functional construction or actual obstruction of blood vessel Therefore the appli--cant seems to suffer from heart disease affected with Ischemia. Accord--ing to the latest medical report, as mentioned above, the applicant has suffered from myocardial infarcation. The word "myocardial" according to the above-mentioned Medical Dictionary means, pertaining to the muscular tissue of the heart and the word "Infarction,' means the forma--tion of an infarct. The word ---infarct" means an area of coagulation necrosis in a tissue due to local anaemia resulting from obstruction circulation to the area. It is clear, therefore, that there is evidence of serious heart ailment, which is why the medical expert has recommended the applicant's hospitalization. However, according to the report the duration of hospitalization will depend upon the patient's response to treatment.
17. It is clear from the circumstances of this case that the specialised treatment necessary for the applicant cannot be made available to him in--side the jail. But the argument of the learned state counsel is that the necessary treatment is being provided to the applicant in the hospital while he is in custody. No authority has been cited by the learned counsel in support of the submission that in case the under-trial prisoner can be provided with treatment outside the jail, the facility of bail cannot be granted to him. The proposition is clearly inconsistent with the provisions of section 497, Cr. P. C. The law has vested a discretion in the Court to enlarge a prisoner on bail if he is sick. The discretion vesting in the Court cannot be whittled down by any such limitation. 1n cases of temporary and ordinary sickness the Court may not be persuaded to grant relief to a prisoner but where the disease is serious and likely to continues for indefinite duration, clearly the case would fall under the proviso. Custody inevitably implies restraints upon the prisoner and limits access to him even though he is for the time being admitted in the hospital. There will, therefore, be a great deal of difference in the matter of care and attention to be provided to the prisoner if he is released on bail.
18. For the foregoing reasons I find the applicant entitled to bail on medical grounds, although I hive not found him so entitled on the merits of the case. He will, therefore, be released from custody upon his furnish--ing a surety in the sum of Rs. 20,000 and P.R. In the like amount to the satisfaction of trial Court. Since the applicant is being granted bail solely on the ground of health, it will be open to the prosecution to move for cancellation of his bail in case he misuses the privilege of being at large in any manner,