1996 P Cr (PLP)

S. 497

Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4

Bail, grant of

Bail was sought on ground of illness of accused

Two Medical Certificates produced on record to prove illness of accused only showed that accused was suspected to be suffering from Pulmonary Tuberculosis

Such certificates neither showed that accused was positively suffering from Pulmonary Tuberculosis nor that treatment for such disease could not be provided for in Jail Hospital

Certificates also did not show if keeping of accused in jail for any longer period would be detrimental to life of accused

Tuberculosis, being G disease which could be treated in Jail Hospital, accused had no case for grant of bail. Zarin Khan v. The State 1980 SCMR 305; Haji Mir Aftab v. The State 1979 SCMR 320 and Muhammad Yakoob v The State 1987 PCr.LJ 1145 ref. Mirza Atiq Beg for Applicant. This bail application has been moved on behalf of applicant Shah Muhammad, who is involved in a case registered with the Police Station Gulzar Hijri as Crime No.209/93 under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The allegation against the applicant is that he was in possession of 1-1/2 kilograms of heroin which was in two separate cloth bags. The applicant was arrested by the complainant Police Inspector; and after complying with the required formalities, he was sent up for trial. A bail application was moved before the trial Court at the very early stage, i.e. in the year 1993 which was rejected on merits. Thereafter no further bail application was moved before this Court. However, after a lapse of about one year another bail application was moved before the trial Court mainly on the ground of illness which was also rejected, hence this bail application. I have heard the learned counsel for applicant and Mr. Habibur Rashid, learned counsel appearing for State. The learned counsel for applicant has submitted that he presses this bail on two grounds, i.e. ground of illness and ground of inordinate delay in the trial. As regards the first ground he has referred to the certificate issued by the doctors which are placed on record. The latest certificate is issued by Dr. Najamul Haque Malik on 25-10-1994 which shows that the present applicant Shah Muhammad and another accused Obaidullah were examined and medical tests were taken pertaining to chest disease. The next certificate issued by Dr Syed Muhammad Adrian shows that the present applicant and the said Obaidullah are strongly suspected to be suffering from Pulmonary Tuberculosis and are advised to be referred for complete investigation and treatment. No other certificate has been placed on record. The above certificates only show that the applicant is suspected to be suffering from Pulmonary Tuberculosis. This certificate neither shows that he is positively suffering from such disease or that such disease cannot be cured or treatment provided for in the Jail Hospital. This certificate also does not show if his remaining in jail for any longer period would be detrimental to his life. In the case of Zarin Khan v. The State 1980 SCMR 305 in an identical case where the applicant was suffering from Tuberculosis and Asthmatic Bronchitis of a chronic type, the Honourable Supreme Court did not hold the case to be fit for grant of bail within the meaning of second proviso to section 497, Cr.P.C. as in this case the petitioner had needed only a proper treatment whether inside or outside the jail. The learned counsel for applicant has placed reliance on the case of Haji Mir Aftab v. The State 1979 SCMR

320. In this case the bail was granted to the applicant for the reasons of sickness and infirmity, observing that in the said case, which was an appeal case, after conviction before, the Honourable Supreme Court, it was observed that the applicant had remained on bail throughout his trial and appeal before the High Court. The learned counsel for applicant has also referred to the case of Muhammad Yakoob v. The State 1987 PCr.Lt 1145 wherein a learned Single Judge of this Court had granted bail on the ground that according to the Medical Board the illness of the applicant was of severe one which required treatment as he was suffering from severe hypertension and uncontrolled diabetes mellitus with some degree of renal involvement. This case also has no bearing with the present case. In view of the above discussion and for the fact that Tuberculosis is a disease which can now be treated and such treatment could be provided in the jail hospital. I am of the view that the applicant has no case for grant of bail. The bail application is accordingly rejected. H.B.T./S-1164/K ??????????????????????????????????????????????????????????????????? Application dismissed.