' FAISAL ARAB, J.---The applicant is booked in Crime No,76 of 2008 that was registered at Police Station FIA, C.C. Karachi under sections 420, 467, 471, 477-A and 34 of the Pakistan Penal Code. The applicant had earlier moved Bail Application bearing No,571 of 2009 on merits that was dismissed by this Court on 6-7-2009. The present application has been moved on medical grounds as the applicant, a 58-year-old man, claims to be suffering from heart ailment.
2. Learned counsel for the applicant, Mr. Rasheed A. Rizvi argued that applicant is a heart patient and therefore is a sick man within the meaning of the first proviso of section 497(1) of Criminal Procedure Code. In order to demonstrate that applicant is heart patient, Mr. Rizvi drew the attention of this Court to various documents on record. The first of these documents referred by Mr. Rizvi is a report of the Medical Board, which examined the applicant on 24-7-2009. This Medical Board was constituted under the orders of this Court and was comprised of (1) Professor Dr. S.M. Munir, Head of Medical Unit VII, Jinnah Postgraduate Medical Centre, (2) Dr. Syed Zahid Jamal, Associate Professor National Institute of Cardiovascular Deceases, (3) Dr. Maseehuz-Zaman, Head of the Nuclear Cardiology of Kiran Hospital, (4) Dr. Muhammad Zakaria, Deputy Executive Director, Jinnah Postgraduate Medical Centre and (5) Professor Musarat Hussain, Executive Director, Jinnah Postgraduate Medical Centre. After examining the health condition of the applicant, the Board in its report found that the applicant has the symptoms of "dyspnoea", which could be equivalent to angina. The Board therefore, advised that a CT Coronary Angiogram be performed on the applicant in order to assess the heart condition of the applicant. The Board in its report also opined that as CT Coronary Angiogram facility is not available at Jinnah Post Medical Center or National Institute of Cardiovascular Diseases, Karachi, therefore the same be performed at Agha Khan University Hospital. The second document is the letter-dated 31-8-2009 of Professor Tasnim Ahsan, Head of Department of Medicine, JPMC, Karachi who advised that angiography be performed on the applicant. In this letter also it is mentioned that in early 2009, the applicant was examined by Dr. Nadeem Rizvi who had diagnosed angina and advised thallium scan to be performed on the applicant. Then on 1-10-2009, Dr. Shahid A. Sarni Consultant Cardiae Surgeon also examined the applicant and diagnosed "dyspnccs' (exertion while breathing) and without having the benefit of CT Coronary Angiogram before him as the same was never performed on the applicant, advised coronary artery bypass surgery in Agha Khan University Hospital or in South City Hospital.
Thereafter another three member Medical Board, . Constituted at National Institute of Cardiovascular Diseases examined the applicant on 19-9-2009. This three member Board also diagnosed angina and advised coronary artery bypass grafting.
3. Learned counsel for the applicant in support of his contentions submitted a list of 32 cases out of which he referred to the cases of Mawasi Khan v. The State 1969 SCM R 289, Malik Muhammad Yosuffullah Khan v. The State PLD 1995 SC 58, Zakhim Khan Masood v. The State 1998 SCM R 1065, Mian Manzoor Ahmad Watto v. The State 2000 SCM R 212, Ch. Zulfiqar Ali v. The State PLD 2002 SC 546, Muhammad Saeed Mehdi v. The State 2002 SCM R 282, Farhan Iqbal v. The State 1997 PCr.LJ1860 (DB) and Abrar Ahmed v. State (unreported case of this Court being C.P.No,D-2023 of 2007) in order to establish that on the ground of sickness an undertrial prisoner becomes entitled for the concession of bail under first proviso to section 497(1) of Criminal Procedure Code.
4. On 4-11-2009 with the consent of the counsel for the parties this Court directed that the procedure of CT Coronary Angiogram be performed at Agha Khan University Hospital as was earlier advised by the five Member Medical Board on 24-7-2009. Inspite of such directions of this Court, the applicant did not get the procedure of CT Coronary Angiogram performed on him.
Taking into consideration that on the one hand there was a deliberate avoidance on the part of the applicant to undertake CT Coronary Angiogram and on the other the applicant was pressing for grant of bail on medical grounds, the Division Bench headed by honourable Chief Justice of this Court passed order containing strict directions of running the CT Coronary Angiogram procedure on the applicant. This order, which was passed in this case on 16-12-2009, is reproduced as follows:-- 16-12-2009 .
"Today Mr. Abrar Hasan has invited our attention to the order dated 4-11-2009, wherein, it was directed that the petitioner would be taken to Agha Khan University Hospital with prior intimation in order to perform the procedure as recommended by the Medical Board Report dated 24-7-2009 viz. CT Coronary Angiogram. Mr. Rizvi says that perhaps this may not be required in view of further report of another Medical Board dated 19-9-2009 whereby positive heart disease was detected in the applicant and it was recommended that surgery should be conducted upon him. We have heard both the learned counsel. In our opinion as there is specific court orders directing the applicant to be taken to Agha Khan University Hospital for the purpose of carrying out procedure as recommended by the Medical Board, consequently, we direct Jail Superintendent to ensure that the applicant is produced before Agha Khan University Hospital well before the next date of hearing for the purpose of admission and carrying out the afore-mentioned medical test. The hospital may detain the applicant as long as it is necessary whereafter he shall be shifted back to NICVD, that shall be done under the supervision of Police Authorities.
' To come up on 24-12-2009 at 11-00 a.m."
5. After the above-referred orders of this Court dated 16-12-2009 though the applicant went to Agha Khan Hospital and got himself examined by Dr. Fateh Ali Teepu, Consultant Cardiologist on 22-12-2009 who too advised that CT Coronary Angiogram be performed on the applicant but the applicant chose not to undergo such procedure.
6. Thus applicant's medical examinations by the five Member Medical Board and similar examination by Dr. Fateh All Teepu, both of which took place on the specific directions of this Court, there was a clear advice that CT Coronary Angiogram be performed on the applicant in order to assess his heart condition but he avoided to undergo such procedure. About a year has already elapsed since the applicant was examined by a doctor who in early 2009 advised the applicant to undergo CT Coronary Angiogram. This is mentioned in the letter, -dated 31-8-2009 that was placed before this Court. Had the applicant taken the advice of the Medical Board and the doctors and had undertaken CT Coronary Angiogram, it would have definitely revealed applicant's true heart condition. The analysis of Dr. Shahid Sami, who advised coronary artery bypass surgery, was advisory in nature as he himself was not performing coronary artery bypass surgery but had advised that such a procedure be carried out either at Agha Khan University Hospital or South City Hospital. Thereafter when the applicant on the strict directions of this Court went to Agha Khan Hospital for his examination and Dr. Fateh Ali Teepu advised him that CT Coronary Angiogram be performed first, he did not do so. This reluctance of the applicant to undertake CT Coronary Angiogram, though his own counsel gave consent before this Court on 4-11-2009 that such procedure be performed on the applicant at Agha Khan Hospital is quite surprising. All this show nothing else but a desire on the part of the applicant to obtain bail without the evaluation of his heart condition through CT Coronary Angiogram. Thus uptill now CT Coronary Angiogram has not been performed, what to speak of coronary artery bypass surgery. Neither of the two procedures has been performed and that too at the sweet will of the applicant himself. Even it is assumed that without CT Coronary Angiogram it is safe to perform the procedure of artery bypass, the fact that such a procedure has also not been performed as yet, creates doubts about applicant's heart ailment. On the one hand the applicant claims to be nursing heart ailment and has got himself hospitalized for about a year now and on the other hand he is not paying any heed to any advice of the doctors. This is quiet astonishing behaviour of a person who complains of heart ailment. It seems that all that the applicant is interested is to lie comfortably in the hospital bed showing no sense of urgency about getting any analyses of this heart condition.
7. After referring to the above discussed medical reports of the applicant's health condition, learned counsel for the State Bank of Pakistan Mr. Abrar Hassan argued that avoidance of the applicant to undergo various procedures advised by the doctors demonstrate that applicant is not suffering from any heart ailment and is only interested in getting bail on false pretext after he failed in getting concession of bail on merits of his case. Mr. Abrar Hassan also submitted that in all cases that have been referred to by Mr. Rizvi the prisoners were in jail whereas in the present case, the applicant is lying comfortably in the hospital bed free to undertake any medical procedure. The learned Standing Counsel adopted the argument of Mr. Abrar Hassan Advocate.
8. The above-referred cases on which reliance has been placed by the applicant's counsel bail was granted as the medical reports confirmed that the undertrial prisoners were suffering from such ailment which cannot be properly treated while in custody in jail. In none of the above- referred cases that a prisoner has avoided to undertake certain procedure advised by the doctors for evaluation of his health condition as has happened in the present case. Thus the utter reluctance of the applicant to undergo CT Coronary Angiogram leads this Court to believe that applicant does not want that his real heart condition is revealed. Therefore, the cases relied upon by the applicant's counsel are of no help to the applicant's case.
9. In view of the applicant's own avoidance to get the requisite procedure performed on him, this Court is left with no other alternative but to disbelieve the medical grounds on the basis of which applicant seeks bail from this Court. Hence this bail application is dismissed.