' The petitioner, Mian Muhammad Idrees, seeks post-arrest bail in case bearing F.I.R. No,9 of 2001, dated 27-11-2001, under section 9(c) of Control of Narcotic Substance Act, 1997, registered at Police Station Anti-Narcotic Force, Multan.
2. The allegation against the petitioner is that he along with seven other co-accused were in possession of Charas weighing 5500 kilogram, which was taken into possession by the Investigating Officer.
3. Learned counsel for the petitioner submits that the petitioner was arrested from his house illegally, whereas in fact his arrest was shown from another place. For this reason, he filed a Writ Petition No,194 of 2002 in this Court, which was dismissed, against which, Intra Court Appeal was filed, that was dismissed as withdrawn for filing private complaint against the Anti Narcotics Officials. The same was subsequently filed, in which non-bailable warrants have been issued against the officials. Further submits that there is an allegation that 5500 kilogram of Charas was recovered from the present petitioner and his co-accused, out of which entire case property (except which was sent to the chemical examiner for analysis) was destroyed on 6-4-2002 illegally and against law. Learned counsel stressed that as the case property has been destroyed, therefore, the same cannot be proved and the gravity of the offence has been reduced to a great extent. Relies on Ijaz-ud-Din v. The State (2005 YLR 16). It was also argued by the learned counsel that first direction was given to the learned trial Court on 29-1-2004 to conclude the trial within four months but the same was not complied with and subsequently the second direction was given on 21-6-2005 to conclude the trial within six months but the trial is still in progress. It is submitted that these directions were given in the case of co-accused Noor-ul-Islam. Lastly, the learned counsel with vehemence argued about the ailment of the petitioner. It was submitted that the petitioner initially suffered heart attack in the jail and he was shifted to the hospital where angiography was performed on 10-10-2005 and was discharged with the following comments of the treating consultant:-- "Continue medical theraphy and risk factor modification. PCI to first obtuse marginal branch and AV circumflex may be offered for persistent anginal symptoms."
' It is further submitted that ailment of the present petitioner is further proved by memo. Dated 24- 10-2005 addressed to the District Police Officer, Multan, from the Superintendent, New Central Jail, Multan, which shows that the petitioner is to be shifted from jail to Nishtar Hospital for treatment being an emergency as declared by the Assistant Professor Muhammad Shah Gillani, Cardiology Ward Nishtar Hospital, Multan. Reference has also been made to the report dated 24-10-2005 of the Medical Officer, New Central Jail, Multan, in which he stated:- "Submitted that undertrial prisoner named Idress son of Saib-udDin Sadiq under section 9-C(15)
Police Station ANF, Multan is admitted in jail hospital. He has Coronary Artery disease for which, he was shifted to Nishtar Hospital, Multan and from where to Punjab Institute of Cardiology, Lahore, where his Angiography done and patient came back without any surgical intervention.
' Now patient is again admitted in jail hospital. Call for Cardiologist was written on 17-10-2005.
Assistant Professor for Cardiology Nishtar Hospital, Multan, Dr. Muhammad Shah Gillani, visited him this jail hospital on 22-10-2005 and examined the Cardiac patient including the said prisoner. He has advised him emergency shifting to Cardiology Ward Nishtar Hospital, Multan, for his Coronary Artery disease and we have written his shifting to Nishtar Hospital, Multan, as desired and advised by the said Dr. The photocopy of the advice and shifting is attached.
' Meanwhile, we are treating the prisoner according to the advice of the Cardiologist."
' The Medical Officer, New Central Jail, Multan, in the Health Report, dated 5-12-2005, submitted to the learned trial Court, gave the following report:-- "The patient develops episodes of Precordial pain, Chest tightness and sweating after walking for a few distance. So exertion is very deteriorating and lethal to his life, because precipitate severe heart attack. So keeping in view his condition and to avoid any type of mishap, I advised to please exempt him from Court evidence on dated 23-11-2005."
On the basis of the above, the learned counsel submitted that as the life of the petitioner is in danger and he cannot be given proper treatment in A the jail, therefore, in the interest of the health of the petitioner/accused, he may be allowed bail.
4. In support of his arguments regarding the ailment of the petitioner, the learned counsel for the petitioner referred to:-- (i) Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha and 2 others (2004 SCM R 1462), (ii) The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayyum (2001 SCM R 14), (iii) Firdous Paul v. The State (2004 SCM R 15),
(iv) Zakhim Khan Masood v. The State (1998 SCM R 1065), (v) Haji Mir Aftab v. The State (1979 SCM R 320), (vi) Mian Manzoor Ahmad Watto v. The State (2000 SCM R 107), State through Advocate- General (Sind) v. Mir Allah Bux and others (1979 SCM R 323) and some unreported judgments of this Court.
5. In reply to the above the learned Special Prosecutor, Anti-Narcotic Force, submitted that the directions, which were given by the Superior Courts from time to time could not be followed, but the delay was not attributed to the prosecution, as the prosecution witnesses appeared in the Court regularly on every date of hearing and in fact the delay is being caused by the accused side.
Elaborating this point, he submitted that there are 11 accused, who are represented by different learned Advocates and most of the time all the learned Advocates are not present in the Court, due to which the case is adjourned. It was also submitted that different applications are moved by the accused due to which the main trial is stopped and the time of the Court is consumed in disposing of such applications. It was further argued that the case property was destroyed at Lahore after taking due permission from the Court and submitted that 2 kilogram Charas, which was sent to the chemical examiner, is still left with the prosecution. Regarding the first submission of the learned counsel for the petitioner, it has been submitted that the proceedings of the private complaint had been stayed by this Court in the revision petition. Finally it was argued that the petitioner though suffered heart attack but his condition is not serious as it is being narrated and is being exaggerated. It is submitted that the accused/petitioner only requires angioplasty for which he did not have any objection, he also did not object for the petitioner to get medical treatment from the hospitals. He relied on Haji Naik Muhammad v. The State (2001 PCr.LJ 1160).
6. Learned counsel for the parties have been heard. Record has been perused.
7. The main thrust of arguments of learned counsel for the petitioner is regarding the poor health of the petitioner as admittedly he is a cardiac patient. Vide order dated 14-11-2005, this Court directed the Medical Superintendent, to depute the Professor of Cardiology to examine the petitioner at the Central Jail, Multan and to report whether the patient needed open heart surgery or not and also to opine whether the petitioner could be treated at Nishtar Hospital, Multan? In response to this order, Dr. Farooq Nazir, Prof. Of Cardiology, Nisthar Hospital, Multan examined the petitioner in the New Central Jail, Multan, on 22-11-2005. His report is as follows:-- "I have examined the petitioner Mian Muhammad Idrees S/o Saif-ud-Din Sadiq in New Central Jail Multan on today 22-11-2005 at 12-30 p.m. The patient is suffering from Ischemic Heart Disease. For this disease, in addition to medical treatment the further options are either Coronary Angioplasty or Coronary Artery By-Pass Graft Surgery. After reviewing his medical condition and Coronary Artery Angiography Report, in my opinion, the preferred choice of treatment is Coronary Angioplasty."
8. The judgments referred to by the learned counsel for the petitioner have also been perused.
"In the case of Firdous Paul v. The State (supra), the petitioner was accused and according to the opinion of the Medical Board, he was suffering from severe heart attack and required bypass operation as soon as possible as he was at high risk of dying suddenly. That accused was also suffering from diabetes and had also developed renal problems. The judgment does not help the petitioner, as he does not suffer from diabetes or renal problem. Moreover, there is no report of high risk of dying and has been advised angioplasty.
' The case titled Haji Mir Aftab v. The State (supra) is also not attracted to the present facts of the case as in the case so referred the parties were closely related to each other and the occurrence had taken place at the spur of moment without any premeditation. In that case, the petitioner was also on bail and had never misused the same. In the instant case it is the Professor of Cardiology, Punjab Institute of Cardiology, who has advised angioplasty to the petitioner. "Manzoor Ahmad Wattoo v. The State" (supra) also is not applicable as in that case, according to the medical report received from the Specialized Medical Institute was that the continuous detention of accused in the jail was hazardous to his life while in the present case, no such report is available in the file.
' In the case of Zakhim Khan Masood v. The State (supra), the bail was allowed by the Hon'ble apex Court on the health ground does not help the present petitioner as in that case the doctor had opined that "the ailment of the accused according to medical report was likely to have hazardous effects on his life because stress and strain could aggravate his disease."
' In the present case no such observation has been made by the Professor of Cardiology, Nishtar Hospital, Multan, in his report dated 22-11-2005."
8-A. The learned counsel for the petitioner also relied upon State through Advocate-General (Sind) v. Mir Allah Bux and others (supra) and The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayyum (supra). Both the above titled cases relate to the cancellation of bail, therefore, are not relevant for the instant application. The case of Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha and 2 others (supra) relates to the quashment and is also not relevant, as the instant petition is for the grant of post-arrest bail.
9. None of the above judgments help the petitioner. The medical report, which has been given by the Professor of Cardiology shows that the petitioner can be treated with coronary angioplasty, however, according to him this facility is not available at the Nishtar Hospital, Multan. It does not say that staying in the jail would be hazardous to the life of the petitioner, which aspect is important for an accused to be allowed bail on ground of ailment. The ailment of the petitioner referred to by the learned counsel for the petitioner can be treated by angioplasty, which is neither very complicated nor a lengthy procedure as compared to coronary bypass surgery. Even in the health report given by the Medical Officer, New Central Jail, Multan, dated 5-10-2005, he has stated that he had advised exemption of the petitioner from the Court on 23-11-2005 only and not on subsequent dates.
10. As regards the other submissions made by the learned counsel for the petitioner, suffice to say that the private complaint filed by the petitioner has been stayed. By the High Court. In any case, this is no ground for grant of bail. Regarding the destroying of the case property (out of which 2 kilogram of Charas are still with the prosecution), the same has been done after due permission from the Court. Heinous offence is alleged to have been committed by the petitioner and his co- accused, as the petitioner can be awarded death sentence for the offence so charged, therefore, he is also not entitled to bail under section 51 of the CNSA which is reproduced as under for ready reference:-- "51. No bail to be granted in respect of certain offences.---(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
' Haji Naik Mi..Hammad v. The State (2001 PCr.LJ 1160) is also relied upon. In this case, bail was even refused when the accused was advised bypass surgery and this Court ordered the Superintendent Jail to make arrangements for his surgery in the hospital. As regards the delay in the disposal of the trial, different applications are being moved from time to time by the accused persons and also adjournments are sought by one or the other learned Advocates representing them. The prosecution can hardly be blamed for this delay.
11. In our view, the ends of justice would meet if a direction is made for conducting coronary angioplasty of the petitioner. Under the circumstances, if the petitioner so desires, the Superintendent, New Central Jail, Multan, is directed to make necessary arrangements immediately to shift the petitioner t6 the Punjab Institute of Cardiology at Lahore, where coronary angioplasty of the petitioner would be performed. He is allowed to stay in the hospital as long as medically advised.
12. In light of what has been discussed above, no ground for grant of bail is made out, which is hereby dismissed.
13. Office is directed to send copy of this order to the Superintendent, New Central Jail, Multan, and the Medical Superintendent, Punjab Institute of Cardiology, Lahore, for compliance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.