P L D 2003 Karachi 266 (PLP)

4. As far the ground of health is concerned the applicant was examined by Special Medical Board, C.M.C. Hospital, Larkana constituted and convened on 6-8-2002 in the office of the Civil Surgeon, Civil Hospital. Sukkur and the following opinion was recorded by the Board: "In view of his past medical history of Diabetes Mullitus Coronary Artary disease (old myocardial infarction with two vessel disease) and chronic low back pain, the members of Special Medical Board are of the opinion that: (1) He should be managed in hospital. He is advised fresh Coronary Angiography for proper assessment for chest pain and future management (like angioplasty/CABGS). (2) Advised latest M.R.I. and preferably with Myelography Lumbo Sacral region for proper assessment and management of his clinical illness. " On 5-11-2002 it was contended on behalf of the applicant that such the purpose of medical treatment in pursuance of the aforesaid report are not available at Sukkur. It was, therefore, ordered by this Court that the Superintendent, Civil Hospital, Sukkur and Medical Superintendent, Chandka Medical College, Larkana shall inform this Court if the above facilities are available with them. The Civil Surgeon, Civil Hospital, Sukkur reported that facilities for Coronary Angiography, M.R.I. and Myelography were not available in Civil Hospital, Sukkur. The Medical Superintendent, C.M.C. Hospital, Larkana also informed that facilities of Coronary Angiography were not available in C.M.C. Hospital, Larkana. Learned counsel for appellant, therefore, urged that since the applicant is suffering from a serious heart ailment, as opined by the Special Medical Board and the facilities, as reported by the two hospitals at Sukkur and Larkana for Coronary Angiography etc. are lacking in those hospitals the applicant may be released on bail. He placed reliance on Muhammad Saeed Mehdi v. State (2002 SCMR 282) and Manzoor Ahmed Wattoo v. State (2000 SCMR 107). Learned Deputy Prosecutor General for NAB opposed the bail plea on the ground that the required medical facilities are available at Karachi and he has no objection if the applicant is shifted to Karachi where such medical treatment may be provided to him through a doctor/surgeon of his choice.

6. We have carefully considered these contentions. The main advice tendered by the Special Medical Board is that the applicant be managed in a hospital and fresh Coronary Angiography may be conducted for proper assessment of 'chest pain' and for future management like angioplasty/CABGS. On the face of it these medical observations do not spell out immediate threat to the life of applicant and the Coronary Angiography is suggested for future management. This advice was administered more than 3 months back and at the best if Coronary Angiography is imminently required even now, the applicant can avail such facility from a doctor of his choice at Karachi for which necessary arrangements can be made, while he is detained in the Central Prison at Karachi. Right now, on this ground there is no point in suspending the long sentences of imprisonment awarded to him in 3 cases which shall normally run consecutively unless ordered otherwise. Latest M.R.I. and Myelography, as suggested by the Board. additionally, can also be conducted simultaneously when the applicant is shifted to Karachi.

7. In Manzoor Ahmed Wattoo's case (supra) the accused was still facing the trial and the following observations made iii Muhammad Yousufullah's case (PLD 1995 SC 58) were relied upon:-- "... the correct criteria for grant of bail to an accused in a non-bailable case, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialized treatment is needed and his continued detention in Jail is likely to affect his capacity or is hazardous to his life."

8. The observations made in Zakhim Khan Masood's case (1998 SCMR 1065) were also taken into consideration and the Hon ble Supreme Court while granting bail to the accused observed as under:-- "As discussed earlier, the object of criminal prosecution is not to punish an under-trial prisoner for the offence alleged against him. The object of criminal trial is that the accused is made to face the trial and answer the criminal charge against him. Since we have reached the conclusion after considering the medical report received from A.F.I.C. on the condition of the appellant that his continued detention in the jail is hazardous to his life and that the specialized treatment needed by him, cannot be provided within the jail premises, we are inclined to admit the appellant to bail, in all the above three cases."

9. Initially, the case of present applicant is on a distinct footing as compared to the circumstances in which bail was granted in the cited case. Firstly, the accused in the cited case was facing trial whereas the applicant has been convicted and awarded long sentences. Secondly, the criteria laid down by the Hon'ble Supreme Court that was taken into consideration was in respect of an under-trial prisoner in whose favour medical reports were to the effect that his treatment within the premises of jail was not possible and continued detention in jail was likely to affect his capacity or was hazardous to his life. In particular, in Manzoor Ahmed Wattoo's case the Hon'ble Supreme Court reached the conclusion that on consideration of the medical report the condition of appellant was such that his continuous detention in jail was hazardous to his life. This aspect of the circumstances is lacking in the instant case. The appellant is a convict, he has to serve out the sentences unless the same are set aside and notwithstanding this background there is no specific observation that delay in Coronary Angiography was hazardous to his life. In Manzoor Ahmed Wattoo"s case Angiography had already been done and a definite view about Coronary Artery disease had been taken on the basis of Coronary Angiography, but in the instant case Coronary Angiography is yet to be conducted.

10. In Muhammad Saeed Mehdi's case (2002 SCMR 282) the medical ground urged in support of the bail plea had not been controverted by the prosecution. The case was also at the stage of trial and the accused was found entitled to bail on a variety of other grounds.

11. We have considered all these aspects. The hearing of the main appeals is likely to conclude in the first week of next month which date has been fixed on the choice of learned counsel for appellant/applicant. Indeed we do not find a reason to place the case of the applicant on the same pedestal as that of an under-trial prisoner, whose detention may likely continue for an indefinite period without trial being concluded. Even otherwise the shield of presumption of innocence ceases to exist after conviction. On humanitarian grounds however the applicant deserves medical treatment which is not available to him at Sukkur and Larkana therefore, while rejecting the bail plea it is directed that the applicant shall be shifted to Karachi where he tray be allowed facility of Coronary Angiography and other medical treatment through a doctor of his choice and in that behalf the jail authorities should not create any hurdle in the process of medical consultation. The applicant may also be lodged in such hospital as advised by the doctor for a limited period solely for the purpose of Coronary Angiogiaphy, M.R.I. and Myelography. The applications for bail and suspension of sentence are consequently dismissed. N.H.Q./I-76/K Bail dismissed.