1994 P Cr (PLP)

Mrs. Ismat Mehdi for Dy. A.-G. for the State. Applicant Abdul Raheem son of Abdul Ghafoor is involved in a case under section 156(1)(8) of the Customs Act, 1969. His bail application was rejected by the trial Court vide order, dated 30-5-1992. He has now filed the present application with the same prayer.

2. The allegation against the applicant is that on 23-4-1992 he was leaving for Dubai by Flight No.EK-601 but on the way at Terminal No.3 he was intercepted by Air Port Security Force and a sum of Rs.6,08,300 Pakistani currency was recovered from the pair of Joggars which were worn by him at that time. After recovery he was handed over to Customs Officer, Mr. S.M. Zafar Hassan, who seined currency and notice under section 171 of the Customs Act was also served upon the applicant. The applicant was arrested and the case was registered against him. He is now facing trial before the learned Special Judge (Customs and Taxation), Karachi.

3. I have heard Mr. Ilamdin Khattak, learned counsel for the applicant and Mrs. Ismat Mehdi, Advocate for Dy. A. G. for State. The latter has opposed the bail application.

4. Bail was sought by the applicant before the trial Court on the ground of sickness, as the applicant was suffering from epilepsy but his bail application was rejected as already mentioned. The applicant has repeated the present application before this Court on the same ground and in support of his application a large number of documents, that is, medical certificates, treatment slips and Electrograms have been filed. Perusal of these certificates indicates that the applicant is suffering from epilepsy since 1971. There is a certificate dated 26-10-1983 issued by Dr. Sibtain Ali R. Dossa of Nerves Health Centre, which indicates that the applicant has been suffering from epilepsy and was under the treatment at that medical centre since 8-6-1972. There is also another certificate issued by J.P.M.C. Neurology Department which is dated 9-3-1986. This certificate also clearly indicates that the applicant is a known case of epilepsy and he needs anti-epileptic treatment for at lest four years. He was advised to avoid mechanical work. The latest certificate is issued by Dr. Anwarul Haq, Assistant Professor of Neurology, Dow Medical College and Civil Hospital, Karachi. The certificate indicates that the applicant needs medical supervision for the control of epilepsy and if regular appropriate medication is not provided, this disease can be fatal for him and it could also be of grave consequences to his health and life while in police custody. It is also stated that the stress of remaining under custody can aggravate his epileptic fits.

5. The above certificates and the opinion of Dr. Anwarul Haq, Assistant Profession, Neurology, clearly indicate that the applicant is, in fact, suffering fro epilepsy and, therefore, he is a sick person within the meaning of section 497, Cr.P.C. Learned counsel for the applicant has relied upon a reported case Banaras v. The State 1978 S C M R

191. In this case the applicant was suffering from epilepsy and even the Assistant Professor, who had issued certificate, had recommended if proper medicines were supplied to him in the hospital he may be allowed to remain there but their Lordships of the Supreme Court while granting bail observed as under:-- "After hearing the learned counsel for the parties, we are of the opinion that the appellant is suffering from a serious disease and he cannot have treatment of his choice in the Jail Hospital. Besides fitsoccur in the disease from which the appellant is suffering, and it will be difficult for the jail authorities to look after him. As the appellant is a sick person, we will direct that he may be released on bail in the sum of Rs.20,000 (Rupees twenty thousand only) with one surety in the like amount to the satisfaction of the trial Court."

6. The order by which the learned trial Judge had rejected the bail application indicates that there is discharge slip in which it was mentioned that the doctors in the ward had observed that the "fits" of the applicant seem to be non-epileptic. In this regard I had called the doctor concerned to appear in person. The concerned doctor appeared and stated that the discharge slip was issued by him and inadvertently it was not signed. When it was inquired from him about the fits of the applicant which were observed by the doctors in the ward to be non-epileptic, the concerned doctor replied that this was based only on visual observation. In other words visual observation made by the ward doctors, as mentioned in the discharge slip, will be of no consequences as firstly it is based on visual observation and secondly no reasons whatsoever are available to indicate on what bass the said fits of the applicant were observed to be non-epileptic. On the other hand, the Assistant Professor of Neurology, Dr. Anwarul Haq has issued a detail certificate and there is no reason to doubt the same. Specially so when there are certificates of two other doctors also available on record having been issued quite some time back, will go to show that the applicant had, in fact, been suffering from this disease for quite a long time.

7. In the light of my above observation and following the observations made by the Honourable Supreme Court in the above-cited case, I am of the considered view that the applicant is a sick person and requires specialist's g treatment of his choice. In these circumstances, I allow the applicant to be enlarged on bail on his furnishing one surety in the sum of Rs.3,00,000 and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./A-1466/K ????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.