' At the conclusion of the hearing on 7-11-1989, I had by a short order allowed bail to applicant Mst.
Baboo Jana in the sum of Rs,400,000 (Rs, four lacs only) with two sureties of Rs,200,000 (Rs, two lacs only) each and P.R. In the like amount to the satisfaction of Special Judge (Customs and Taxation), Karachi. These are the reasons for the said short order.
2. Applicant Mst. Baboo Jana was apprehended at Karachi Airport while leaving for London through Flight No,MS.871 and from the suit-cases which she was carrying more than five Kgs. Of powder of heroin was recovered. She was served with a notice under section 171 of the Customs Act, 1969, and a case for the offence under clause (8) of section 156(1) of the Customs Act, 1969, was registered against her. After usual investigation the applicant was sent up to stand trial for the said offence.
The applicant applied for bail before learned Special Judge (Customs and Taxation), Karachi, mainly on the ground of illness. This ground did not find favour with the learned Special Judge who dismissed the bail application vide order, dated 17-8-1989 with the following observations:-- "From the very language of the certificate it is very much clear that the accused is not seriously sick. However, if the doctor finds the facilities in jail hospital are not available, the accused may be sent to the Jinnah Hospital, Karachi."
' The applicant has, therefore, approached this Court with the same prayer.
3. I have heard Mr. Habibullah Samo, learned counsel for applicant and Mr. Ali Nawaz Dahraj, learned counsel for State. The latter has opposed the bail application.
4. The bail application for applicant is pressed before me on two-fold grounds, firstly, that she being a woman is entitled to the grant of bail, and secondly, she being seriously ill, her case is covered by the first proviso to subsection (1) of section 497, Cr.P.C.
5. The first proviso to subsection (1) of section 497, Cr.P.C. Empowers the Court to direct the release of any person on bail who is under the age of 16 years or any woman or any sick or infirm person accused of an offence falling within the prohibitory clause. This proviso is an exception to the general rule of releasing a person on bail who, if there appear reasonable grounds, for believing, has been guilty of an offence punishable with death, imprisonment for life, or ten years.
6. Admittedly the applicant is a woman and her case falls within the first proviso to subsection (1) of section 497, Cr.P.C. The grant of bail to a woman although discretionary, the Courts have leaned towards granting of bail even where the accused was found involved in a murder case inviting capital punishment. I am fortified in my view from the cases reported as Mst. Allah Jiwai v. The State 1984 P Cr. L J 129, Mst. Elvinia alias Guddi v. The State 1984 P Cr. L J 2911 and Nasir Mahmood Khan v. The State 1985 P Cr. L J 159. In the last citation it was observed that mere heinousness of the offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as punishment and there is not legal or moral compulsion to keep a person in jail.
7. Again, the 'discretion' when applied to Court means sound 'discretion guided by law'. An unreasonably long detention in prison before the commencement of the trial is a hardship which weighs with Court while exercising such discretion in respect of an accused who besides being a woman is an old lady and is yet to be adjudged guilty.
8. The applicant is also a sick person. The certificate issued by Chief Medical Officer, Central Prison, Karachi, is on record which is self-explanatory:- "In continuation of this office letter No,108/89, dated 29-7-1989, it is hereby certified that she can be treated in jail hospital but not fully and satisfactorily as far as the following factors are concerned:
(1) Age of accused (about 65 years).
(2) Diseases present on her person. (a) Osteo artheritis knee joints.
(c) Spondi losis of lower cervical spine.
(c) Enlarged liver.
(d) Piles.
(e) Hypertension.
(f) Breathlessness.
(3) Inadequate facilities in jail hospital, Central Prison, Karachi, specially for ladies."
9. At the request of counsel for applicant a Medical Board was constituted. The Board examined the applicant and submitted the following report:-- "At present patient's blood pressure is 180/110 mm Hg. However, she is not in failure. In case facilities exist in jail to control her blood pressure effectively (which should not be a problem), her detention in jail will not be detrimental to her health merely by being detained there. In the opinion of the Medical Board, the Medical Officer, Incharge Central Jail should be able to treat her medical condition."
10. The applicant was re-referred to Medical Board for submission of its report on all the diseases.
The Board again examined the applicant and submitted its report which is as follows:-- "The Medical Board had examined Mst. Baboo Jana on 18-10-1989. She is suffering from mild hypertension, osteo arthritis and second degree piles. These conditions are not detrimental to her life during detention in jail."
11. Mr. Habibullah Samo, learned counsel for applicant who has argued with great ability has contended that the medical report is not the conclusive evidence to what the Board has said. He has endeavoured to show that the opinion of Board to the effect that detention of applicant is not detrimental to her life, has to be based upon cogency of reasoning and if the reasoning of the expert is not cogent, a Court is entitled to attach little value or no importance to such report. I am in entire agreement with the view taken by learned counsel for applicant. There is nothing in law which even faintly suggests that a Judge has to surrender his judgment to the opinion of an expert.
12. Admittedly the applicant is a patient of hypertension. There is also indication that she is suffering from osteo artheritis and second degree piles. The report of Chief Medical Officer, Central Prison, Karachi, which I have reproduced above further indicates that there are inadequate facilities in jail hospital speciallly for ladies. During the course of arguments Mr. Samo has also produced a certificate issued by Dr. M.J. Shah of Birmingham, wherein past history of applicant was given, which goes to show that she is a sick person. No doubt the accused are not sent to prisons on luxury trip, but as presumably innocent persons they cannot be left in prison just to die.
Whatever reason may be, it has to be achieved within the framework of the right of a person to liberty which is a cherished right that is enjoyed by such a person. While deprivation of liberty is equal to conviction, the Courts have to take care that they are not deflected by sentiments alone.
The cases reported as Muhammad Siddiq v. Bashir Ahmad 1975 P Cr. L J 1249; Sarfraz Ahmad and another v. The State and another 1975 P Cr. L J 552; Sardar Khalid Umar v. The State NLR 1982 Criminal 223; Barkat Ali and 3 others v. The State 1981 P Cr. L J 274; Mst. Naziran Bibi v. The State 1985 P Cr. L J 2467(1); Mst. Razia Begum and others v. The State 1986 P Cr. L J 766; Rashid Khan and another v. The State and others 1986 SCMR 933 and Muhammad Bashir v. The State 1987 P Cr. L J 230 serve as guidelines in cases falling within first proviso to subsection (1) of section 497, Cr.P.C.
13. A point which was touched upon during the course of his address by Mr. Habibullah Samo, learned counsel for applicant, may now be dealt with. According to learned counsel the applicant was only a carrier as is evident from the interim charge-sheet submitted against her and she could be an innocent carrier like many others who become victim of circumstances. Besides two well-known cases of the Supreme Court, the case of Nabi Bux v. The State reported in 1986 P Cr. L J 202, may be referred to in this behalf.
14. For all these reasons, I allow bail to applicant in the sum of Rs,400,000 (Rs, four lacs only) with two sureties of Rs,200,000 (Rs, two lacs only) each and P.R. In the like amount to the satisfaction of Special Judge (Customs and Taxation), Karachi.