1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J. Applicant, Muhammad Asghar Mughal, is facing trial in the Court of learned Special Judge-II(CNS) Karachi for the offence punishable under section 9(c) of the CNS Act, 1997, ' The prosecution case is that 10 Kgs. Of charas and counterfeit currency notes were recovered from the possession of the applicant.
2. ' We have heard Mr. M.Ilyas Khan, learned counsel for the applicant, and Mr. Sibtain Mehmood, learned Special Prosecutor ANF.
3. ' Learned counsel for the applicant has not pressed the bail application on merits but has pleaded for grant of bail to the applicant on medical ground only. This bail application was submitted on 12- 8-2005 and on the direction of this Court medical report was submitted in which the nature of illness was shown as diabetes mellitus for 10-12 years and the difficulty in micturition for 10 years.
4. The nature of ailment was reported as follows:-- "Above named accused is known case of Diabetes mellitus and difficulty in micturition since 10/12 years. He was admitted in Jinnah Hospital on 28-2-2005 and discharged on 16-3-2005. As per report received from Jinnah hospital he is suffering from poorly controlled diabetes mellitus, enlarged prostate and faulty liver. As present his blood sugar level is 350 mg. He needs proper monitoring to prevent complications of different organs as there is no facility available inside the prison."
5. ' At the request of the learned counsel for the applicant, fresh medical certificate was called which has been submitted. It is dated 27-2-2006. In the fresh medical certificate the nature of disease is shown as uncontrolled diabetes and painful urination. The nature of ailment is shown as follows:-- "Above named accused is known case of diabetes mellitus since very long time and painful urination, his prostate is also enlarged. He was admitted two times at JPMC for his complaint, but at present his blood sugar is 300 mg and also no painful urination. He is already advised medicines by consultant of JPMC and taking medicines regularly. He needs proper monitoring for his complaint."
6. ' Learned counsel for the applicant has submitted that although in none of the medical certificates, the Medical Officer has opined that the nature of ailment is hazardous or detrimental to life but for the purpose of grant of bail on medical grounds such medical report is not the condition precedent in every case. In support of his contention, learned counsel has placed reliance on the order of Hon'ble Supreme Court in the case of Tasneen Kausar v. Muhammad Bashir 1981 SCM R
686. In this case bail was granted by the Lahore High Court on report and recommendations of a Board consisting of eminent and well-known doctors to the effect that the accused was suffering from diabetes mellitus and tuberculoses. The complaint party approached the Hon'ble Supreme Court with a plea for cancellation of bail granted by the High Court. The Hon'ble Supreme Court dismissed the application for cancellation of bail with the observation that the bail was granted on the report of eminent doctors of Lahore and the High Court has properly exercised the discretion. It was observed that it was not a fit case for interference with the order of the High Court.
7. ' The learned counsel has next placed reliance on the judgment of the Hon'ble Supreme Court in the case of Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58. In this case the Hon'ble Supreme Court laid down the law pertaining to the grant of bail on medical ground as follows:-- "From the above discussed position it is clear to us that the bail on medical grounds can be granted under section 497, Cr.P.C. If the Court reaches the conclusion on the basis of medical report that the ailment 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 the learned Judge that there was no fracture of bone in that case). Would not be a ground either to refuse or grant the bail on medical ground. The correct criteria for grant of bail to an accused in a non-bailable case, on medical ground. In our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly A treated within the premises of jail and that some specialized treatment is needed and his continuous detention in Jail is likely to affect his capacity or is hazardous to his life. In the case before us not only there is a categorical statement by the Members of the Board, constituted to examine the condition of the appellant, that there was no possibility of treatment of the appellant's injury even in specialized centers of Peshawar but also in other areas of the country. The Board also recommended immediate treatment of the appellants in a foreign country to avoid disability.
8. ' Learned counsel for the applicant has further placed reliance on the judgment of Hon'ble Supreme Court in the cases of Muhammad Saeed Mehdi v. The State 2002 SCM R 282 and has particularly referred to para-9 of the above judgment which reads as follows:-- "9. Medical ground urged in support of the prayer for bail has also not been controverted by the prosecution. It was rather conceded that tile petitioner requires immediate treatment hospitalization and close monitoring by Specialists in a well equipped hospital. This object obviously cannot be achieved by detaining the petitioner in jail indefinitely or to refer him to a hospital for the purpose of treatment for a limited time. Since the petitioner has been found to be entitled to the concession of bail on variety of grounds and the grant of bail cannot be withheld by way of punishment, we hold that petitioner has made out a case for grant of bail."
9. ' Lastly, the learned counsel for the applicant has referred to the judgment of Hon'ble Supreme Court in the case of Zakhim Khan Masood v. The State 1998 SCM R 1065. He has placed reliance on the following passage from the order of Hon'ble Supreme Court.
10. "It has been observed by the doctor in the above report that the ailment with which the petitioner is suffering, is likely to have hazardous effects on his life because stress and strain may aggravate his disease. The petitioner is, undoubtedly, sick and as such, needs treatment in conducive condition free from any kind of pressure. In custody, it cannot be said that the petitioner shall have full peace of mind. His recovery from ailment shall, surely, be slow if he remains in detention. We are, therefore, satisfied to observe that the petitioner's life may seriously be in danger if he is not released on bail. In this view of the matter, the petitioner is admitted to bail in the sum of Rs,5,00,00,000 (rupees five crore) with two sureties of 2 and a half crore each to the satisfaction of the trial Court."
11. ' On the other hand, learned Special Prosecutor ANF has opposed the grant of bail to the applicant contending that the nature of ailment is not such which may entitle the applicant for release on bail. He has placed reliance in this behalf on a Division Bench judgment of this Court in the case of Akber Jawed v. The State 2003 YLR 2213. A Division Bench of this Court after considering the judgment of Hon'ble Supreme Court in the case of Malik Muhammad Yousafullah Khan (supra) and Muhammad Saeed Mehdi (supra) and by placing specific reliance on the observation of Hon'ble Supreme Court in the case of Malik Muhammad Yousafullah Khan (ibid), to the effect. The correct criteria for grant of bail to an accused in a non-bailable case, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such 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 to affect his capacity or is hazardous to his life.......... Held as follows.
12. "10. In the present case after applying the principle laid down in the case of Muhammad Yousafullah Khan (supra) for the grant of bail on medical ground as find that the case of applicant does not fall within the said principle, therefore, he is not entitled for the concession of bail."
13. ' Learned Special Prosecutor ANF has further relied on a recent judgment of Hon'ble Supreme Court in the case of Ghulam Raza v. Khuda Bux and another 2005 SCM R 1904. In this case a Division Bench of this Court, sitting at Hyderabad, granted bail on medical ground. The Hon'ble Supreme Court cancelled the bail by laying down the following principle of law:-- "7. It is well settled principle of law that for releasing an accused on bail on medical ground, there must exist strong reasons to believe that despite advanced medical technology and availability of medicines treatment was not possible at all having regard to the nature of illness. Thus, adverting to the facts of the present case, disease which could have been conveniently treated in jail hospital and does not appear to be dangerous to life or even to health. The learned High Court has seriously erred in suspending the sentence of imprisonment for life while assigning inappropriate reasons and misconstrued the legal position."
14. ' Learned Special Prosecutor has next contended that while rejecting bail application of co- accused this Court had directed the trial Court to conclude the trial as early as possible. The prosecution has examined all its witnesses. The accused persons have submitted application before the trial Court for calling court-witnesses. The delay in disposal, if any, is on the part of accused person and the entire trial is likely to be concluded in near future.
15. ' We have carefully considered the contentions, raised by the learned counsel for the parties, the medical reports on the basis whereof bail is sought and the judgments on which the reliance has been placed by the learned counsel.
16. ' Before adverting to the facts of the present case, we would like to state two salutary principles governing the law of precedent in criminal cases and grant of bail when the prosecution case is at advance stage or the trial is like to be concluded in near future.
17. So far the law of precedent in criminal cases is concerned, there is plethora of rulings on the point that the judgments/orders of the superior Courts in criminal cases shall not be treated as precedent, as every criminal case revolves around its own peculiar facts and seldom the facts of two cases are similar. Only such judgments/orders are to be treated as precedents wherein a principle of law has been laid down and is applicable generally to the criminal cases.
18. ' So far the grant of bail to an accused person where trial is at the advanced stage is concerned, by now it stands settled that if the trial in trial Court is at advance stage then the superior Courts shall abstain from exercising their discretion pertaining to the grant of bail to such accused person.
19. ' Learned Special Prosecutor has stated that the prosecution has closed its side and this fact is not controverted by the learned counsel for the applicant.
20. ' So for the grant or refusal of bail in various judgments/orders on which the learned counsel for the applicant has placed reliance we find that in the case of Tasneem Kausar (ibid) the Hon'ble Supreme Court observed that it was not fit case for interference with the order of High Court. The grant of bail is a discretionary relief and whenever such discretion is exercised by the High Court, normally the Hon'ble Supreme Court does not interfere until and unless it is found that the exercise of discretion is totally wrong or perverse or the discretion ought not to have been exercised.
21. Keeping this principle in view, the Hon'ble Supreme Court rejected the application for cancellation of bail. It cannot be treated as precedent for grant of bail by this Court on medical ground.
22. ' In the case of Muhammad Yousafullah Khan (ibid) is the law as laid down by the Hon'ble Supreme Court has been considered by another Division Bench of this Court in the case of Akber Jawed
(ibid) and we have already reproduced the dictum laid down by the Hon'ble Supreme Court. In this case the law was laid down to the effect that the sickness or ailment with which the accused is suffering should be such that it could not be properly treated within the premises of jail 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. In the present case we find that the ailment which has been mainly pressed for grant of bail is diabetes from which the accused is suffering for the last 11-13 years. In the medical certificate dated 18-5-2005 it was shown that the sugar level was 350 mg. In the fresh medical certificate dated 27-2-2006 it has been reported that the blood sugar level is 300 mg. It means that the medicine being given to the accused is working properly and the patient is improving. In these circumstances, it cannot be said that the ailment is such that it cannot be treated inside the jail or it is hazardous to the life of accused or is likely to affect his capacity. We would again like to refer to the facts in the case of Muhammad Yousafullah Khan (ibid) where the Hon'ble Supreme Court held that the ailment of the applicant in that case was such that no treatment was possible in entire Pakistan and treatment in foreign country was necessary to avoid disability.
23. ' In the case of Muhammad Saeed Mehdi (ibid) the medical ground urged in support of bail was not controverted by the prosecution. Rather, it was conceded that the petitioner requires immediate hospitalization and close monitoring by specialists in a well-equipped hospital. In view of this concession, the Hon'ble Supreme Court observed that the object obviously could not be achieved by detaining the petitioner in jail indefinitely. The Hon'ble Supreme Court further observed that the petitioner was found to be entitled to the concession of bail on variety of grounds and grant of bail cannot be withheld by way of punishment. The facts and circumstances in the said case and in the present case have no similaritly and the facts in the two cases are different and distinguishable, with the result that the grant of bail in the case of Saeed Mehdi (ibid) shall not be treated as precedent for grant of bail in the present case.
24. ' In the case of Zakhim Khan Masood (ibid) the Hon'ble Supreme Court granted bail in the circumstances that the ailment with which the petitioner was suffering was likely to have hazardous affect on his life. We have already observed that there is no such opinion of the Medical Officer in this case.
25. For the foregoing reasons it is held that in the present case the applicant is not entitled for grant of bail for the reason that, first, the criterion laid down by the Hon'ble Supreme Court to the effect that the ailment of an accused seeking grant of bail should be hazardous to his life and the treatment of the ailment was not possible in jail is not available and, secondly, the trial in the trial Court is at advance stage, as already explained above, and therefore, adhering to the principle that when a criminal case is at advance stage the superior Courts should not exercise the discretion of granting bail, the accused is not entitled to the exercise of discretion by this Court in his favour.
26. ' For the foregoing reasons, the bail application stands dismissed.