ABDUL HAYEE KURESHI, J.-----This application on behalf of Zafar Iqbal seeks an order of bail on the ground of sickness. I have heard Mr. Muhammad Hayat Junejo, Advocate for the applicant and Mr. Usman Ghani Rashid, Advocate-General for the State. The latter has opposed the grant of bail.
2. The brief facts of this case are that on 1 March, 1977 at about 9-30 p.m. An altercation took place between Head Constable Muhammad Akram of Chambar Police Station and the applicant, who at the relevant time was an Assistant Sub-Inspector at the same police station. The applicant shot at H. C. Muhammad Akram with a revolver hitting him on the chest. The alleged crime was witnessed by Complainant Assistant Sub-Inspector Shahnawaz of the same Police Station besides Constables Atta Muhammad, Gul Hassan, Allah Bachayo and Huzoor Bux who came at the time of incident. The injured on receiving the shots fell down at a short distance and was sent for medical treatment. He was found to have injury on the region of left nipple and was bleeding from his mouth. Such injury resulted in his death. The crime weapon was also recovered from the applicant and the same according to the first information report was not licensed. The case is pending against the applicant.
3. An earlier application for bail was moved and merits of the case were urged. It was rejected by an order of my learned brother Mushtak Ali Kazi, J. On 11 April, 1978.
4. The application for bail has been pressed only on the ground of sickness of the applicant. It seems that the Additional Sessions Judge had referred the applicant for examination to the Civil Surgeon at Karachi and the examination revealed that the applicant was a patient of hepatic amoebinasis and bronchial asthma. The doctor has further stated in the certificate as follows :--st th "Bronchial asthma is a condition of lungs which sometime changes to an acute condition called status asthmaticus from which he suffered and shifted to Civil Hospital, Karachi on 20th September, 1978 for admission. There are various causes of bronchial asthma but allergic diathesis, mental stress and strain and emotional dis--turbances etc., play a major part in causing and aggravating this ailment."
In conclusion the Medical Officer of the Central Prison, Karachi, has only stated that the condition of the applicant may prove detri--mental to his health.
5. A copy of the case-diary from the Court of Sessions has been placed on record and the same shows that on 24-11-1977, 5-1-1978, 25.6-1978, 10-7-1978, 27-7-1978, 5-8-1978, 27-8-1978, 9-9-1978 and 30-9-1978 the applicant was not produced by the Jail authorities in the Court. The entries in the diary, however, do not disclose the reason why the applicant had not been produced. In other words the entries in the diary are neither proved positive or presumptive of the applicant not having been produced in the Court for reason of had health.
6. Mr. Muhammad Hayat Junejo, the learned Advocate for the applicant, has placed reliance on the proviso contained in subsection (1) of section 497, Cr. P. C. To urge that this Court has power to release a sick person on bail. He has also placed before me an order of Mr. Justice Muhammad Haleem in P. S. L. A. No. K-28 of 1978 to canvass that the Supreme Court had granted bail to the petitioner in that case on ground of his illness. This order was passed on concession by the Advocate-General and does not state the disease from which the appli--cant suffered. The next order that has been placed before me by Mr. Muhammad Hayat Junejo is in the Bail Application No. 481 of 1977 of this Court in which Hamza Khan M. Kureihi, J. Had released Mithal on bail. In the order the learned Judge referred to the case of Abdul Aziz v. Bashir Ahmed and another (PLD 1966 SC 658) for grant of bail on the ground of applicant suffering from sinus tachycradia with strain and mild hypertension. Even in that case order was passed on concession by the Advocate-General. Mr. Muhammad Hayat Junejo has placed before me a copy of the order in the case of Haji Ghulam Nabi i.e. Criminal Bail Application No. 230 of 1978. Mr. Justice Ziaul Haq Channa granted bail as the applicant was aged about 60 years and was suffering from enlarged prostat's, which required surgical treatment.
7. The question that arises in this case is whether the ailment or sickness from which the applicant is suffering is sufficiently serious as to attract the proviso to subsection (1) of section 497, Cr. P. C.
The word "sick" appearing in the said proviso is not defined or illustrated in the Code of Criminal Procedure and Mr. Muhammad Hayat Junejo, therefore, urged before me that the word has to be understood in its ordinary sense. I am clear in my mind that it is not every kind of sickness which would entitle a person to the grant of bail. If that were so the word "may" would not have found a place in the proviso. The use of this word clearly connotes a discretion vesting in the Court. On the other hand, it would reduce the law to an absurdity if for every ailment a person could invoke the benefit of proviso to subsection (1) of section 497, Cr. P. C.
8. I have examined a few cases in which the question of grant of bail on ground of sickness has been dealt with. In the case of Abdul Aziz the accused complained of palpitation and sinking of the heart for which he bad been receiving treatment for a period of six weeks. The allegations against the accused were that he had given "lalkara" and the Additional Sessions Judge had rejected such version of the prosecution case for absence of evidence of conspiracy and the frequency with which such allegations are made against innocent persons. The Supreme Court refused to interfere with the order of granting bail both by the reason of the nature of allegations as well as the state of health of the accused. In the case of Wahiduddin v. Allahditta and others (1968 SCMR 82) bail was sought on the ground that the applicant was having recurring attacks of angina pectoris. No medical certificate had been produced so that the Supreme Court declined to grant bail. However, in the case of Qaisar Mustaja and another v. The State (1970 P Cr. L J 1128) a learned Single Judge of the Lahore High Court granted bail to the two accused namely husband and wife on the ground that the husband was suffering from pulmonary tuberculosis of both lungs with multiple cavitations while the wife had a suckling child to be looked after. I would not be concerned with the case of the wife for in her case the Exception to subsection (1) of section 497, Cr. P. C. Would apply by reason of her sex. In all these cases it would appear that bail has been granted only when the nature of ailment is serious enough to endanger a person's life and that also not regardless of the merits of the case. I am firmly of the view that the circumstances of the case and their cumulative effect together with the seriousness of offences, the severity of punishment, the likelihood of the accused absconding of tempering with witnesses, has to be considered along with the nature and seriousness of the sickness together with the desirability of detention in jail by reason of availability or otherwise of necessary medical treatment and amenities have to be borne in mind before a person is granted bail when he is facing a capital charge. It is not every kind of sickness or ailment which considered in isolation would entitle an accused to bail.
9. Applying the above test in the instant case I find that on merit there are strong grounds to believe that the accused is guilty of the offence with which he has been charged. On the ground of health the sickness is described as bronchial asthma which besides being a very common aliment can never be considered to be detrimental to a prisoner' life or not amenable to relief by ordinary medication. There have been cases that people have lived with bronchial asthma for a number o years although they do get attacks off and on. The "strain" which is spoken of in the medical certificate is presumably on account of the case that the applicant is facing and that also would be no ground release him on bail.
10. In the result this application is dismissed.