' Naik Muhammad petitioner, a resident of Hayatabad, Peshawar who claims to be a respectable business-man of the N.-W.F.P. Having shops in Peshawar Barra, was caught red-handed in Room No,307 of National Hotel situated at Abbot Road, Lahore with 11 Kgs. Of heroine alongwith Arshad Hakeem also a resident of Peshawar and Arshad Hussain, resident of Swabi. After his arrest he had led to the recovery of two more kilograms of heroine from under the driving seat of his vitara jeep, parked in the premises of the said National Hotel. This had happened on 4-10-2000 at about 4-15 p.m. Recovery of this 13 Kgs. Of heroin had been effected by a raiding party headed by a Deputy Director of A.N.F., Lahore and comprising another Deputy Director, two Assistant Directors and some other employees of Anti-Narcotics Force.
2. Bail was canvassed for Naik Muhammad petitioner essentially on the ground of his infirmity and sickness as according to a report of a Medical Board comprising experts of Punjab Institute of Cardiology, Lahore, he had severe diffuse coronary artery disease and chronic asthma. The members of the Board were of the opinion that he required Coronary Artery Bypass Surgery and in the meanwhile continuous medical therapy was also advised to him. The learned counsel for the petitioner, relying upon the precedent cases from the Honourable Supreme Court submitted that in the circumstances, the petitioner had become entitled to his release on bail.
3. The offences, for the purpose of bail have been classified into two categories i.e, bailable offence and non-bailable offence. In view of the provisions of section 496 of the Cr.P.C. Accused persons in custody in pursuance of a bailable offence are entitled to be released on bail as of right. Persons accused of non-bailable offence are not blessed with any such privilege. The non-bailable offences are again classified into two categories i.e, the ones falling within the Prohibition envisaged by section 497(1) of the Cr.P.C. And the others falling outside the said prohibition. Non- bailable offences carrying punishment of 10 years imprisonment and upwards are the ones hit by the prohibition while the other such offences are outside the purview of this Prohibition. The provisions of the First Proviso to section 497(1) of the Cr.P.C. Take the person accused of non- bailable offences beyond such prohibition irrespective of the quantum of punishment prescribed for an offence. These persons are females, males under 16 years of age and the ones who are infirm or sick.
4. It would, thus, be noticed that persons accused of non-bailable offences punishable with 10 years imprisonment and upwards escape the wrath of the said Prohibition if they are females or males under 16 years of age or are sick or infirm. This, however, does not mean that they are then to be treated at par with the persons accused of bailable offences. Grant of bail to such persons nevertheless remains within the discretion of the competent Court which discretion has obviously to be exercised in a judicious manner. Keeping in view all the attending facts and circumstances of the case. For example a female accused of the commission of her husband's murder to clear her way to join her paramour cannot be permitted bail as of right only because she was a female.
Likewise a sick or infirm person could not be admitted to bail only because such a person was sick or infirm, without taking into consideration the crime committed or the nature of the allegations levelled against him. The fact whether proper treatment could or could not be offered to a sick person while in custody would be another valid consideration in such-like situations. The nature of the sickness i.e whether the disease afflicting an accused person was terminal or curable would also be a relevant factor.
5. This is the state of law viz-a-viz the grant of bail to the accused persons falling within the purview of first proviso to section 497(1) of the Cr.P.C. As envisaged by the Code of Criminal Procedure. I have made a mention of this position only because submissions were made by the learned counsel for the petitioner to the said effect otherwise these submissions made by the learned counsel are not really relevant because the provisions which govern the case of the present petitioner are not the ones covered by subsection (1) of section 497 of the Cr.P.C. But are the ones contained in subsection (1) of section 51 of the Control of Narcotics Substances Act of 1997. The said provision reads as under:--- ' "Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death."
6. It will thus, be noticed that the provisions of section 51 of the C.N.S. Act of 1997 do not admit of any exception with respect to persons who are females or males under the age of 16 years or who are sick or infirm. The prohibition contained in the said section 51 is absolute and is applicable to all kinds of persons accused of an offence under the said Act of 1997 if the same is punishable with death. Needless to mention here that the petitioner is one such person because his case falls within the ambit of section 9(c) of the said Act, 1997 which carries punishment of death. Therefore, the contention of the learned counsel for the petitioners that the case of the petitioner fell outside the prohibition and he thus, deserved to be released on bail proceeds on incorrect premises.
7. In this view of the matter the petitioner is not entitled to the grant of bail only because he was a sick person.
8. Although this petition had not been pressed seriously on the merits of the case yet it may be mentioned, as has been noticed above, that the petitioner who hails from Peshawar was found in a hotel in Lahore and 13 kilograms of Heroin had been allegedly recovered from him at his instance.
No reasonable explanation could be offered as to why such a large quantity of heroin should, have been falsely and maliciously planted on the petitioner.
9. Having thus, examined the factual and the legal position relating to the matter in question, we do not feel persuaded to exercise our discretion in favour of the petitioner.
10. Be that as it may, there is a human angle to the case of the petitioner also. He reportedly suffers from a heart ailment and has been advised Coronary Artery By-Pass Surgery. We can safely take judicial notice of the fact that more than reasonable good arrangements exist in the Governmental and private hospitals in Lahore for such a surgery. Persons from all walks of life including the most highly placed persons in the Service of Pakistan have undergone such-like surgeries in the Punjab Institute of Cardiology in this city of Lahore.
11. In this view of the matter we would direct the Superintendent and the Medical Officer of the concerned jail to immediately ask the petitioner whether he would like to undergo the surgery and if he so wishes then to ask him further, whether he would like to be operated upon in the Punjab Institute of Cardiology or in some private clinic of his choice and the Superintendent/ Medical Officer of the said jail shall then make immediate arrangement, after completing the necessary formalities, without wasting any time, to shift the petitioner to the hospital of his choice for the abovementioned purpose.
12. Subject to the above directions, this petition is dismissed.