2. This order will dispose of application MA No,3111/08 made under section 426 read with section 561-A of Criminal Procedure Code on behalf of convict Miran Baloch who has been convicted in the case F.I.R. No,38/2008 registered under section 6/9-(c) C.N.S. Act, 1997 at Police Station, A.N.F., Clifton, Karachi. After filing of the challan, old Special Case No,382/2002 and New Special Case No,272/2004 was allotted to afore-noted F.I.R. Brief facts of the case are that on 21-9-2002 a police party of A.N.F, headed by Inspector Ghulam Abbas during patrolling at Lasbella Chowk, near C.N.G.
1. Filling Station detained appellant/convict Miran Baloch who at that time came there along with a basket containing narcotics to deliver the same to one Siddique. Along with Miran Bloch, the said Siddique was also arrested. After observing the formalities, the basket which the appellant Miran Baloch was carrying was searched from which. 15 slabs of Charas weighing 15 K.Gs along with one bottle of liquor was secured. Required formalities for arrest and recovery were completed, where after along with recovered property were taken to Police Station where this case was registered against them. On completion of the investigation challan was filed in which appellant and Siddique were shown in custody, whereas accused Haji Juma and Shah Nooran were shown absconder.
2. Both the accused were tried by the Court of Special Judge-II, (C.N.S.), Karachi.
3. ' On conclusion of the trial, appellant Miran Baloch and co-accused Siddique were convicted and awarded life imprisonment under section 9(c) C.N.S. Act, 1997 and fine of Rs, 1,00,000 upon each of the accused was imposed and in case of default in payment of fine, each of them was required to suffer S.I. For two months more. Benefit of section 382-B, Cr.P.C, was also extended to the accused.
4. ' Feeling aggrieved with the aforenoted judgment of the learned II-Special Judge, C.N.S. Karachi, convict Miran Baloch filed this appeal against his conviction. Along with the appeal, counsel for the appellant also filed the application under consideration with the request that the sentence awarded to the appellant may be suspended and the convict may be released on bail during pendency of this appeal.
5. ' Heard counsel for the appellant, Special Prosecutor, A.N.F, and perused the case papers.
6. ' Learned counsel for the appellant submitted that after his arrest, the appellant Miran Blaoch was detained in jail. In jail he was found suffering from various diseases, as such medical board was constituted under the orders of the trial Court, who examined the appellant on 13-11-2003. The Board was consisting of Professor S. Tipu Sultan, professor Khadija Soomro, Dr. Iqbal A. Memon, Dr. Sikandar Rafique Quraishi, Dr. Inayat Baloch and Dr. Sohrab Anar Hakeem of DMC/Civil Hospital, Karachi. The Board expressed its opinion on 13-11-2003, as under :- "A case of Left internal capsule infract. Right hemiplegia 4 months. He is referred to Neurology Department Civil Hospital Karachi for treatment or any Medical Unit (Civil Hospital Karachi) on call for admission and treatment. "
7. ' Thereafter as per opinion of the Medical Board, appellant Miran Baloch was referred to Professor/Head of Department of Neurology, Dow Medical College, Karachi, where he was again examined by Dr. Muhammad Abdullah who on 14-11-2003 issued following certificate: "This is to certify that UTP Miran Baloch was examined. He has history of right hemiplegia about 4 months back and was admitted in Medical ward where treatment was given. During 4 months, he has not improved.
8. ' Usually patients with carebro vascular accident CVA who do not improve in early weeks/months do not usually recover. However, he has been advised physiotherapy."
9. ' Learned counsel for the appellant submitted that C.T. Scan of head and brain of the appellant was also conducted and the doctor who examined the appellant, gave following conclusions on 2-4- 2003:- "A large acute intracerebral haematoma is seen in left deep parietal basal banglia region which had dissected into the ventricles.
10. ' There is minimal midline shift is seen to the right side.
11. ' The haematoma measures 3.Ox 1.8 cm."
12. ' Thereafter, under the orders sent to Superintendent, Central Prison, Karachi dated 4-5-2004, the appellant was referred to Chief Medical Officer, Central Prison, Karachi for examination and his physical report. On conclusion of examination of the appellant by Chief Medical Officer, following comments were given by him on 6-5-2004:- "Above named accused was admitted at CHK on 30-3-2003 in emergency - H/O High blood pressure power Rt. Side body where he diaguesed as Rt. Sided hemipligia and he was discharged on 24-5-2003. On 13-11-2003 he appeared before medical board. As per report there is poor progress and he was advised proper physiotherapy. As the above named is unable to walk, sit, he is on wheel chair. He needs proper physiotherapy to improve his conditions."
13. ' The learned counsel submitted that 0n his request made on 14-5-2009, it was ordered by this Court that a report be called from Chief C.M.O. Jail and it was further observed that if necessity be felt, a Board will be constituted to examine the appellant.
14. ' That a report from Chief Medical Officer, Central Prison, Karachi was called who in his report dated 25-5-2009 after examining the appellant Miran Baloch has offered his opinion as under :- "Above named accused complaint of headache and loss of sensation over left side of the body. On examination there is diminish/loss of sensation on both left limbs, he, is also known hypertensive patient and is admitted in jail hospital and taking regular medicines. To investigate the causes of loss of sensation he may be referred to Sindh Government Services Hospital for medical board."
15. ' The learned counsel for the appellant submitted that the comments offered by the Chief Medical Officer, Central Prison, Karachi are nothing but reiteration of the comments which he had offered on 6-5-2004 in this report. That the physical condition of the appellant as given in this report is the same as given in the report dated 6-5-2004. He further submitted that the appellant is detained in jail and is suffering from various diseases and is not in a position to move and sit, therefore, his further detention in jail will be highly risky to his life, as neither he is being provided proper medical treatment in the jail, nor there is any body in the jail to look after him. He, therefore, requested for grant of this application and suspension of sentence and release of the appellant on bail.
16. ' Learned Special Prosecutor A.N.F, has opposed this bail application and submitted that the appellant has been awarded life imprisonment and fine has also been imposed upon him. That proper medical treatment is being provided to the appellant in jail and if necessary, he may be shifted to hospital, therefore according to him, the application under consideration has no merits, he requested for rejection of the same.
17. We have considered the contentions raised at bar and also perused case papers. '
18. There is no dispute that the appellant is suffering from paralyses since 2004. Since that time no improvement is seen in his condition as neither he can walk nor sit as per report of the doctors. He is being constantly advised since beginning to have physiotherapy but no such facility is available in the jail.
19. ' We are of the opinion that if such situation is allowed to continue the same will be quite hazardous to his life and will also serve no useful purpose. Having regard to above-noted aspects of the case, we are of the opinion that a case for suspension of sentence and grant of bail to the appellant has been made out. We, therefore, allow this application and suspend the sentence awarded to the appellant and order that he be released on his furnishing surety in the sum of Rs,5,00,000 (Rupees Five Lacs only) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.