' SAJJAD ALI SHAH, J.---Prosecution case is that petitioner is Senior Preventive Officer (Customs) and on 17-7-1992 at 2 a.m. In International Departure Hall Terminal III, Quaid-e-Azam International Airport, Karachi, he signalled other Customs officers to allow passenger, who was bound for Dubai to pass without checking. Since the passenger was suspect, he was checked after he boarded the plane and Pakistani currency amounting to Rs,2,47,65,500 was found from his two suit-cases.
Petitioner was allowed protective bail by the High Court with direction to join the investigation but the same was not confirmed as petitioner failed to appear in the Court on account of illness.
2. Petitioner applied in the trial Court for bail on medical ground and produced certificate of Dr. Shabbir Hussain, Associate Professor, Department of Intensive. Care Medicine, J.P,M.C. Bail plea was rejected by the trial Court vide order dated 10-10-1992 on the ground that in spite of his arrest he had not been lodged in the custody either of prosecution agency or of Jail authorities. Second bail application was rejected by the trial Court vide order dated 2-11-1992 on the ground that according to the latest report of Dr. Shabbir Hussain, petitioner had been placed on a new drug and was showing improvement and further that petitioner had not remained in jail in spite of the fact that he was involved in smuggling of huge Pakistani currency amounting to Rs,2,47,65,500 by actively assisting co-accused Fozail Merchant in taking the money out of country.
3. Bail plea was repeated before the Special Appellate Court of Customs at Karachi and by consent of counsel appearing for both sides medical board was constituted, which examined the petitioner.
Report of the Board is at page 42 of paper book which is reproduced as under:- "A Medical Board comprising Prof. I.H. Bhatti as Chairman, Prof. Irshad Waheed and Prof. Mashoor Alain Shah, examined M. Ismail Shaikh on 13th December, 1992.
' His previous records were perused and physical examination was carried out. He appeared to be suffering from Chronic Gastritis. Endoscopy was also performed on 16th December, 1992 by Dr. Waqar Ahmad, Assistant Professor, Surgical Unit-I, whose report is attached.
' Based on the above it is opined that Ismail Shaikh is suffering from severe gastritis and dueodenitis due to. Helicobacter Pylori. This is a choronic ailment difficult to eradicate and causes severe discomfort and morbidity to the patient.
' He needs regular medical treatment which may not be possible in jail".
4. Report mentioned above is signed by three doctors. Prof. I.H. Bhatti, Director, J.P.M.0 has signed it as Chairman and the other two Members of the Board are Professor lrshad Waheed, Department of Surgery and Dr. Mashoor A. Shah, Prof. Of Medicine. After receipt of the report of the Board and hearing the arguments, Special Appellate Court of Customs rejected bail plea by observing as under:-- "I have perused the medical certificates, one issued by Dr. Shabbir and the other by the Medical Board and I find that the disease which the applicant is suffering from can well be treated in the jail and the said disease is not such as would be detrimental to the life of the applicant. The applicant is charged with offence which involves punishment up to 14 years and he is not an ordinary person but is a Senior Preventive Officer. He was on ex-Pakistan leave when he went to the Airport to facilitate a passenger to smuggle out huge Pak. Currency. His case does not require that any lenient view be taken for the grant of bail on the ground of so-called illness. Bail application is accordingly dismissed."
5. Now the question arises for consideration whether finding of three medical experts making dignosis of the illness of the petitioner with positive recommendation that he needs medical treatment which may not be possible in jail can be rejected and brushed aside particularly when there is no challenge to the authenticity of the report of the Board that it is factually incorrect or obtained for extraneous consideration Since there was no challenge, Chairman or Members of the Medical Board were not called in the Court to explain any aspect of the report which was deficient.
6. In a non-bailable case punishable with death or imprisonment for life or imprisonment for 10 years, proviso to section 497, Cr.P.C. Envisages that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such offence be released on bail. Mr. Naeemur Rehman Standing Counsel for the Federal Government was unable to satisfy us about the sustainability of order of Special Appellate Court rejecting bail in view of positive finding of Medical Board constituted by the Court with the consent of the counsel appearing for the parties particularly when no challenge was made or dispute raised with regard to the authenticity of report of three medical experts.
7. In view of the facts and circumstances stated above, we admit petitioner to bail in the sum of Rs,20 lacs with two sureties in the like amount to the satisfaction of the trial Court. In the result petition is allowed and converted into appeal which is disposed of in the terms stated above.