1. ' KHAWAJA NAVEED AHMED, J.---This bail application has been filed on behalf of applicant Malik Fayyaz son of Malik Abdul Qudoos, who is facing trial in case F.I.R. No,22 of 2002, under section 9(c)
2. C.N.S. Act, Police Station A NF-1 , Karachi.
3. ' Brief facts of the case are that "on 4-4-2002 at 19-00 hours Sub-Inspector Jehangir Khan of A.N.F.
4. Had lodged report stating therein that on that day he had interrogated an arrested accused Talib Hussain involved in Case F.I.R. No, 21 of 2002. The accused Talib Hussain had informed that the narcotics recovered from him were brought by him from the den of well known narcotics dealer of Lyari namely Malik Fayyaz and Malik Amjad who are operating at Aath Chc,wk, Lyari, upon receiving this information the Sub-Inspector Jehangir Khan along with raiding party on the pointation of arrested accused Talib Hussain Shah reached on the place pointed out by arrested accused as the building of Malik Fayyaz and Malik Amjad, which they used for narcotics business. It is further stated in F.I.R. That while the police party was there two persons came out of that building having nylon bags in their hands. Four other persons were found inside the building, who upon seeing police party ran in the narrow streets, however, police succeeded to arrest two persons. It is alleged that the persons who are apprehended had disclosed that the escaping persons were Malik Fayyaz and Malik Amjad. It is alleged that Malik Fayyaz and Malik Amjad while running had thrown the nylon bags of Charas in the shape of rods. Upon inspection of the building four nylon bags were found inside the room. Ammunition was also found in the building, which according to the accused arrested from the spot belongs to Malik Fayyaz and Malik Amjad. The Charas thrown by Malik Fayyaz and Malik Amjad weighed 20 kg, from each nylon bag.
5. ' A.N.F. Had registered the case and present applicant had surrendered himself before the Court on 25-2-2006 and since then he is in jail. The accused had applied for bail in the trial Court on medical ground, but without success. He had filed this bail application in this Court on 23-8-2007 on merits as well as on medical ground stating therein that accused is a heart patient. This Court by order, dated 25-9-2007 had referred the accused to the Director National Institute of Cardiovascular Diseases for constituting a Board for a proper report for finding as to present condition of the applicant Malik Fayyaz.
6. ' Director NICVD had constituted Board consisting of Prof. Khan Shah-eZaman, Professor of Cardiology (Chairman), Prof. Akhtar Hussain, Professor of Cardiac Surgery (Member) and Prof. Ziauddin Panhwar, Senior Registrar as Member of the Board vide Ref. No,NICVD/229/1677, dated October 10, 2007. The Board has given following report:- ' "Board reviewed the case of Mr. Malik Fayyaz son of Malik Abdul Qadoos. He is known to have coronay Heart Disease and gets efforts angina on mild exertion. He had Coronary Angiography as Private Patient in June, 2007, which revealed Triple vessels Coronary Artery Disease. He was offered CABG then, but he refused due to lack of funds.
7. ' This time again in view of his symptoms, Board ,offered CABG and as he is still unable to afford the charge of Private Ward, hence Board offered him date for early surgery in General Ward, free of charge.
8. ' However, it appeared that he is reluctant for Surgery. Therefore, Board is of the view that he should continue correct medical therapy."
9. ' I have heard Mr. Shaukat Hayyat, Advocate. He has argued that the case against the accused is absolutely false. He states that after thorough examination and angiography by the consultants it was revealed that the applicant is suffering from closure of three heart valves and has been suggested immediate heart surgery. The applicant has been diagnosed as "the patient is high risk."
10. He further states that it is an admitted position that no recovery has been made from the applicant. He has been charged only for throwing a bag, which is a usual charge. S.-I. Jehangir Khan has levelled against almost all the absconding accused in each and every F.I.R. Lodged by him.
11. ' Mr. Ashfaq Hussain Rizvi, learned Special Prosecutor, A .N.F. Has not disputed the fact that the accused is suffering from heart disease and his three valves are blocked. However, he says that surgery can be done even when the accused is in custody at Jinnah Hospital, Karachi. He says that the charges of surgery will be borne by the accused himself. He has opposed the grant of bail.
12. Learned Special Prosecutor has relied upon the case-law reported in PLD 2006, Karachi 244, PLD 1995 SC 58, 2003 PCr.LJ 821 Lahore, 1998 SCMR 496 and 1997 PCr.LJ 184.
13. ' Learned counsel for the applicant has relied upon the order passed by this Court in Criminal Bail Application No,576 of 2007. The relevant portion of the order is reproduced hereunder:--
(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 in 2000 SCMR 107, case of Zakhim Khan Masood v. State reported in1998 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 Directors constituted by the Medical Superintendent Mayo Hospital, Lahore and it was categorically stated by the Doctor that the petitioner was suffering from Ischaemiac heart disease and asthma and the petitioner has also some stone in his kidney."
(10) In the case of Gul 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 in 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 theappellant, 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, A.N.F., has strongly opposed grant of bail to the accused on medical grounds and has relied upon the case of Muhammad Asghar Moghal 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 to 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."
15. ' The second case cited by the learned Special Prosecutor is the case of Malik Muhammad Yousufullah Khan v. The State and another wherein the Honourable High Court has held that "keeping in view of the nature of treatment required for the injury suffered by the accused, the trial Court rightly granted bail to the accused."
16. ' The Honourable Supreme Court had given procedure for granting bail on medical ground. The procedure given in this case has already been followed by this Court in the case in hand.
17. ' Another case cited by the learned Special Prosecutor, A.N.F. Is of Qadar Mand v. Muhammad Amroze and 4 others reported in 1998 SCMR 496. This case pertains to a in murder case by the High Court, which was cancelled by the Honourable. Supreme Court on the ground that there was sufficient evidence on record. The order was on merits. In the present case, which is in my hand no order is being passed on merits of the case, the bail is being considered only on the medical ground. Same is the position regarding two other authorities they are not applicable on the facts of this case.
18. ' I have heard both the counsel and have perused the law cited at bar as well as order passed by this Court in Criminal Bail Application No,576 of 2007. Without touching the merits of the case in the light of the case-law quoted and discussed above I hereby grant bail to the accused Malik Fayyaz only on medical ground upon his furnishing surety in the sum of Rs,500,000 (Rupees five hundred thousand only) and PR Bond in the like amount to the satisfaction of the trial Court.