' KHAWAJA NAVEED AHMED J.,---This bail application has been filed on behalf of Applicant Imtiaz Jawed after his bail plea was rejected by the trial Court in Special Case No,15 of 2007 by the learned Judge, Special Court-I (CNS), Karachi, by the order dated 29-6-2007.
2. Brief facts of the case are that on 16-1-2007 Inspector Mir Badshah has lodged F.I.R. No,01 of 2007 on behalf of the State stating therein that in pursuance of spy information he along with his raiding party had apprehended the Applicant from near Bar B. Q. Chowrangi, Clifton, Karachi. It is alleged that the Applicant/accused Imtiaz jawed was driving a white color Toyota Vehicle Lexus V8, Model 2006 without number plate with sign "applied for registration". Upon search of the vehicle heroin was recovered from 12 shoppers, which were seized under mashirnama along with the vehicle. The Applicant has applied for bail in the trial Court pleading therein that he was innocent and has been falsely implicated in this case. He has taken the ground of his ailment and the learned trial Court has observed that "there is nothing on record to show that further detention of the Applicant/accused in jail is detrimental to his life" and as such his bail plea was rejected.
3. The learned counsel for the applicant, Mr. Iqtidar Ali Hashmi assisted by Mr. Ilamdin Khattak, has submitted that the Applicant is a heart patient. On 19-3-2007 he got severe pain in his chest and the jail doctor sent him to National Institute of Cardiovascular Diseases, Karachi, (NICVD) in emergency. Dr. Hameedullah, Cardiologist, had attended him and found his blood pressure 210/120.
With aggressive treatment the blood pressure was controlled and his ECG was taken wherein significant changes were found and he was declared as a high risk patient. On 8-6-2007 the Applicant was examined by a Medical Board comprising of Professor Asadullah Kundi, Chairman and Dr. Tariq Masood and Dr. Syed Ishtiaq Rasool Members. The Board interviewed and examined the Applicant/accused and recommended Coronary Angiography, which the Applicant/accused had declined due to evasive nature. Dr. Syed Ishtiaq Rasool, Assistant Professor Cardiology, NICVD, in his reported dated 18-7-2007 has opined that:- "After reviewing the patient and his medical record of previous hospitalization in my opinion his health is under risk in jail and may be detrimental for this life."
4. Thereafter, by the order of this Court dated 20-7-2007, angiography was done, as advised by the Medical Board and the Medical Board on 4-8-2007 has given following opinion:- "The Board reviewed the Coronary. Angiogram and concluded that Coronary Arteries are normal with typical branching system. As the patient is a known case of hypertension and disbetes mellitus, which is not adequately controlled, he needs aggressive risk factor modification and medical treatment. The patient can now be discharged from the hospital."
' This report has been signed by Professor Asadullah Kundi, Professor of Cardiology, NICVD, Chairman and Dr. Syed Ishtiaq Rasool, Assistant Professor, Member of the Board.
5. On 18-10-2007, this Court has passed the following orders:- "Mr. I. A. Hashmi, Advocate for the Applicant Mr. Ashfaq Hussain Rizvi, Advocate for ANF, Dr. Ishtiaq Rasool.
' It is agreed by learned Counsel for the parties that Dr. Ishtiaq Rasool be asked to give comprehensive detailed report about the certificates issued by him on 9-6-2007 and 4-8-2007 for arriving at the proper conclusion for disposal of Bail Application.
' Dr. Ishtiaq Rasool unndertakes to file such statement before next date of hearing.
' Adjourned to 23-10-2007."
6. In compliance of the order the Medical Board consisting of Professor Asadullah Kundi, Professor of Cardiology, Chairman and Dr. Syed Ishtiaq Rasool, Assistant Professor, Member, NICVD, Karachi, submitted a detailed report, which is reproduced hereunder:- "This is to state that Mr. Imtiaz Jawed son of Jawed Iqbal was initially admitted in National Institute of, Cardiovascular Diseases (NICVD) on 4-6-2007 through Emergency Department with chest pain and significant ECG changes for treatment and evaluation. A Medical Board was constituted at that time on 8-6-2007 by the competent Authority of this Institute comprising Professor Asadullah Kundi, Chairman, Dr. Tariq Masood and Dr. Syed Ishtiaq Rasool, Members, to examine the patient and give the expert opinion. Medical Board .Interviewed and examined the patient. Patient was found to have high blood pressure, diabetes mellitus and high tholesterol level. Considering the presence of above mentioned risk factor together with the chest pain and ECG changes Medical Board recommended for coronary angiography, which patient declined. The patient was subsequently discharged on medical treatment on 9-6-2007. However, because this multiple risk factors he was considered high risk patient. He was advised to refrain from mental and physical stresses, which could precipitate chest pain.
' Later, the patient was referred by the Honourable High Court on 18-7-2007 for examination and medical opinion. Patient was examined and report of previous hospitalization (i,e, 4-6-2007) were reviewed. On examination patient complained of angina like chest pain he had elevated blood pressure (170/90 mmHg) and abnormal ECG with a Heart rate of 140 beats per minute. Considering the fact that he had already received treatment in our hospital and had been advised for Coronary Angiography, this time he was warned about the possible consequences and advised to get hospitalized which was rejected by the Police Guard for not having such permission. Therefore, he was sent back on medical treatment, with an aggressive remark that liis health is under risk in jail because of high clinical suspicion of Coronary Artery Disease.
' Following to that patient was again referred by the Honourable High Court on 30-7-2007 for Coronary Angiography. A medical board was constituted comprising Prof. Asadullah Kundi, Chairman and Dr. Syed Ishtiaq Rasool, Member. Coronary Angiography was carried out on 3-8- 2007. His Coronary Angiography revealed Normal Epicordial coronary arteries with typical branching system but early LAD tapering. The patient was discharged on 6-8-2007 with medical treatment and advised for aggressive risk factor modification.
' As far as the current position is concerned we conclude that Mr. Imtiaz Jawed is suffering from high blood pressure, uncontrolled diabetes Mellitus and high blood cholesterol. His Coronary Angiography revealed Normal Epicordial Coronary Arteries with early tapering of LAD artery and typical branching system. He is therefore advised for aggressive risk factor modification which includes:
(i) Control of High Blood Pressure to target levels
(ii) Strict control Diabetes Mellitus
(iii) Control of High Blood Cholesterol
(iv) Diabetic diet with low fat content
(v) Daily 3-3.5 KM walk ' Recommended to be carried out at the 'place of his presence because of high clinical risk.
' Explanation of Apparently "Conflicting Views"
' Our certificate issued on 18-7-2007 was based on clinical judgment suggesting that patient is high risk due to the presence of Multiple Coronary risk factors. The second certificate was issued on 4-8- 2007. After the Coronary Angiogram showing Normal Epicardial Coronary Arteries with typical branches system and early LAD. Tapering. This patient anyway has high clinical risk of more than 20 % according to Framingham risk score for subsequent cardiac clinical event (Sd.) (Sd.)
(Dr..Syed Ishtiaq Rasool) (Prof. Asadullah Kundi)
Assistant Professor Professor of Cardiology (Member) (Chairman)"
7. During the pendency of the bail application, the learned Counsel for the Applicant has produced certificate issued by the Jail Doctor along wih laboratory report that the Applicant/accused is suffering with Hepatitis 'C'. In order to satisfy the Court summoned Dr. Manzoor A. Memon, Chief Medical Officer, District Jail, Malir, and has recorded his statement on oath and opportunity of cross-examination was also given to the learned Special Prosecutor, ANF, Mr. Ashfaq Hussain Rizvi.
The statement of Dr.' Manzoor A. Memon, is reproduced as under:-- "To Court ' I am working as Chief Medical Officer, District Jail Malir, since last 1-1/2 years. I have done my MBBS from Liaquat Medical College, Jamshoro in the year 1988. I have done my house job for six months in Medicine and Surgery. I .Entered in the government service in the year 1999 and since then I have been posted at different places. I examined under trial prisoner, Imtiaz Jawed, who is presently confined in District Jail Malir, Karachi. He is a known case of uncontrolled sugar, hypertension and ischemic heart disease and was diagnosed Hepatitis 'C' in the month of November, 2007. The disease was detected through screening of prisoners done at random at District Jail Malir. He was suspected to be a patient of Hepatitis 'C' and as such certain tests were suggested, which have been conducted by the Agha Khan Hospital. The laboratory reports have confirmed that the patient is suffering with Hepatitis 'C'.
' Question: What is Hepatitis 'C'?
' Ans: It is the inflammation of the liver. As per the latest report unloaded by me from the internet it has been mentioned that Hepatitis 'C' is, a life threatening disease of the liver, which is transmitted by exposure to blood. It is a particularly dangerous form of viral hepatitis caused by RNA virus.
Hepatitis 'C' can lead to serious, permanent liver damage and in many cases cause. Death. More than 82 per cent of those who are infected will progress to chronic liver disease. This disease spread by contact with infected blood. It is a contagious disease. In most of the patients by the time Hepatitis 'C' is detected it has already progressed to long term infection. Hepatitis "C" may be detrimental to the life.
' The Applicant is also suffering from heart disease and jail hospital does not have any facility to meet with the emergency arises out of the heart attacks. However, medicines prescribed by the consultants are being given to the prisoners as per advice of the consultants. The total inmates of District Jail Malir are around 3200 and the accommodation per barrack is around 250 prisoners.
The remaining in jail of this under trial prisoner is not dangerous for his own life but it is equally dangerous for other prisoners who are yet not exposed to this disease.
' Cross-Examination to Mr. Ashfaq Hussain Rizvi, Special Prosecutor, ANF ' Certain tests were performed upon the prisoner on the Court orders. However, regarding Hepatits 'C' he was selected at random amongst the patients suffering from Hepatitis 'C'. He was suggested different test in order to ascertain the factual position. I am not a Cardiologist and as such cannot give any opinion in respect of cardiac disease of the prisoner. The reports of the consultants are already on record where the prisoner was sent by the Court for examination and treatment. It is incorrect to Suggest that Hepatitis 'C' is not detrimental to life. We selected at random 138 prisoners on the suspicion of Hepatitis `C' and tests were conducted upon them. As per laboratory reports and physical examination 26 prisoners are suffering with Hepatitis 'C' while was prisoners were suffering from Hepatitis B and the ratio was calculated at 22 % of the screened 138 prisoners. This ratio is too high and alarming as according to World Health Organization 10% ratio is sufficient to cause concern. It is incorrect to suggest that I am deposing falsely. It is incorrect that Hepatitis 'C' can be treated in jail hospital. Only first aid and preliminary treatments are provided. For proper treatment the prisoners are reffered to the hospital. I produce undated laboratory report of Sukkur Blood and Drugs Donation Society as Exhibit 'A'. This report is verified by me.
' Cross-Examination to Mr. I.A. Hashmi, Advocate for the Applicant.
' Nil.
' No Re."
8. Mr. I. A. Hashmi, learned Counsel for the Applicant, in support of his contention relied upon case of Munawar Hussain Manj v. State reported in 2000 SCMR 1585, case of Gul Zaman v. State reported in 1999 SCMR 1271, the case of Manzoor Ahmed Watto v. State reported iin 2000 SCMR 107, case of Zakhim Khan Masood v. State reported in 1998 SCMR 1065 and case of Muhammad Yousafullah Khan v. State reported in PLD 1995 SC 58.
9. In the case of Munawar Hussain Manj reported in 2000 SCMR 1585 a Full Bench of Honourable Supreme Court of Pakistan while granting bail to accused has observed as under:-- "In addition thereto, the Petitioner was examined by a Board of Doctors constituted by the Medical Superintendent Mayo Hospital, Lahore and it was categorically stated by the Doctor that the Petitioner was suffering from Ischeaemiac heart disease and asthma and the Petitioner has also some stone in his kidney."
10. In the case of Gui Zaman reported in 1999 SCMR 1271 a Full Bench of the Honourable Supreme Court has discussed the competency/powers of the Court in respect of granting bail in cases under "Control of Narcotic Substances Act, 1997" and finally granted bail to accused by majority of 2:1
11. In the case of Manzoor Ahmed Watto reported in 2000 SCMR 107 the Full Bench of Honourable Supreme Court granted bail on the medical grounds and has observed as follows:-- "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".
12. In the case of Zakhim Khan reported in 1998 SCMR 1065 it has been held by the Honourable Supreme Court of Pakistan as follows:-- "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 conductive conditions 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 to danger if he is not released on bail."
13. In the case of Muhammad Yousafullah Khan reported in PLD 1995 SC 58 the Honourable Supreme Court has observed as under: "After reading the opinion given by the Board on the condition of the appellant, we are of the view that it was a highly technical matter, and therefore, the opinion expressed by the Board could not be brushed aside lightly by the learned Judge in Chambers in the absence of any counter-opinion or any medical literature placed before the Court to contradict the opinion given by the Board."
14. On the other hand, Mr. Ashfaq Hussain Rizvi, learned Special Prosecutor, ANF, has strongly opposed grant of bail to the accused on medical grounds and has relied upon the case of Ghulam Raza v. Khuda Bux reported in 2005 SCMR 1904. In this case sentence of imprisonment for life of the appellant after conviction was, suspended by the learned singly Judge of the Circuit Bench of Sindh High Court under section 426 Cr.P.C. The convict in this case was convicted under section 302(b) P.P.C. On conclusion of the trial and was sentenced to imprisonment for life. The Full Bench of Honourable Supreme Court while cancelling the bail granted to him by a learned single Judge of this Court has observed that:-- "It is well-settled principle of law that for releasing an accused on bail on medical ground, there must exists strong reason to believe that despite advance medical technology and availability of medicine treatment was not possible at all having regard to the nature of illness. Thus, adverting to the facts of the present case, it is evident that respondent Khuda Bux was suffering from common disease which could have been conveniently treated in jail hospital and does not appear to be dangerous to life or even to death."
15. The second case cited by the learned Special Prosecutor is the case of Muhammad Ashgar Mohgal v. State reported in PLD 2006 Karachi 244. In this case the accused/patient was suffering from diabetes mellitus and difficulty in micturation since 10/12 years and as such the Court was of the opinion that he is not suffering from a disease dangerous to his life. The Court has observed as under:- "From the foregoing reasons it is held that in the present case the applicant is not entitled or grant of bail for the reason that, first, the criterion laid down by the Honourable 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."
16. I have heard the learned counsel for the parties and have perused the record and case-law produced by both sides. In this case the Applicant is said to have been suffering from two diseases, namely, heart diseases and Hepatitis 'C'. In respect of heart disease, this Court by order dated 20- 7-2007 had constituted a Medical Board comprising of Professor Asadullah Kundi and Dr. Syed Ishtiaq Rasool (Cardiology Department), NICVD, Karachi, The Board has submitted its report on 4- 8-2007, which is reproduced hereunder:-- "The Board reviewed the Coronary Angiogram and concluded that Coronary Arteries are normal with typical branching system. As the patient is a known case of hypertension and diabetes mellitus, which is not adequately controlled, he needs aggressive risk factor modification and medical treatment. The patient can now be discharged from the hospital."
17. Regarding Hepatitis 'C', the Court has examined Dr. Manzoor A. Memon Chief Medical Officer, District Jail, Malir, whose statement has been reproduced hereinabove. The Chief Medical Officer has categorically stated that Hepatitis 'C' is a life threatening disease of liver and can lead to serious permanent liver damage and in many cases cause death. This disease spreads by contact with infected blood. It is a contagious disease. The entire statement of Dr. Manzoor A. Memon, and his cross-examination by the learned Special Prosecutor, ANF, are self-explanatory.
18. Grant/rejection of bail is a discretionary relief but it is a settled principle of law that discretion should be exercised fairly and judiciously. In the present case, the doctors are unanimous on the point of ailment of the Applicant/accused who has been suffering from the diseases which apart from being life threatening is contagious and can cause harm to the other inmates of the jail.
19. Case-law cited by the learned Special Prosecutor is not applicable on the facts and circumstances of the present case and is distinguishable as in one case the Applicant was a convict and was suffering from a common eye disease which could have been treated in jail while in the other case the accused was 10/12 years old patient of diabetes mellitus. In the present case, it has been opined by the Board of Doctors of NICVD, Karachi, that the accused is suffering from heart disease. They have warned about the risk factor. The Applicant is also suffering from Hepatitis 'C', which disease apart from being life threatening is contagious as well as can spread Hepatitis 'C' amongst the other inmates of the jail, who are crowded in barracks, as stated by the Chief Medical Officer, District Jail Malir.
20. Keeping in view the above mentioned circumstances, I am of the considered view that it is a fit case for grant of bail to the accused/Applicant on medical ground alone. I hereby grant bail to the Applicant upon his furnishing surety in the sum of Rs,1,000,000 (Rupees one million) with PR bond in the like amount to the satisfaction of the trial Court.