JAMIL ALIAS JAIMAL Versus STATE
ORDER
1. Applicant Mst. Shamim Raja wife of Major Munawar Shah, who is accused in a case under section 156(1)(8) of the Customs Act, 1969, facing trial on the said charge in the Court of Special Judge (Customs and Taxation) Karachi, seeks bail. The charge against the applicant who is an air-hostess, is that on the intervening night of 19th and 20th November, 1991 she had attempted-to smuggle 7.5 Kgs. of heroin powder while she was bound for Frankfort/New York by Flight No.PK-721. Her personal search led to the recovery of Pakistani currency of Rs.18,50l and U.S`. Dollar 3,000 and two Defence Saving Certificates of Rs.1,00,000. First bail application moved on her behalf in the trial Court was rejected on 9-2-1993 and. her bail application (Special Criminal Bail Application No.9 of 1993) was dismissed as not pressed by order, dated 2-5-1993. Because it was stated by the learned Advocate that applicant was suffering from piles and was constantly bleeding, a direction was given to the Superintendent Central Prison, Karachi, for referring the applicant to J.P.M.C. for treatment including surgery, if advised by the Specialist, with intimation to this Court that the direction had been complied with. A similar direction was given to the Authorities of J.P.M.C. to ensure that the applicant was admitted in the hospital if necessary. It has been pointed out by the applicant's learned Advocate and not disputed by the Standing Counsel appearing for the State that the applicant was admitted in J.P.M.C. where she underwent surgery and after her recovery she was sent back to Central Prison, Karachi. Because the condition of the applicant did not improve satisfactorily, and the same ailment recurred, bail application was repeated before the trial Court which is dismissed on 1-12-1993. It is in these circumstances that this second bail application is filed on behalf of the applicant.
2. I have heard the learned counsel and perused the record. When this bail application came up for hearing on 7-12-1993 and bail application was being pressed on the ground of applicant's illness, a direction was given to tile Superintendent Central Prison, Karachi, to refer the applicant to J.P.M.C. for examination and report about her condition and nature of illness. A letter dated 13-12-1993 was received from the Director, J.P.M.C. and since it did not Court, it was desired that the Director-General, J.P.M.C. would re-examine the applicant and specifically mention her condition and the nature of ailment that the applicant was suffering from. A letter, dated 21-12-1993 issued by the Acting Director, J.P.M.C. to the Superintendent Central Prison, Karachi, and endorsed to this Court, has now been received and the medical report of the applicant is annexed with it.
3. Bail application is not pressed on merits but it is pressed on the ground of illness of the applicant. It has been argued by the learned counsel appearing for applicant that even after the applicant underwent surgery, she has not completely recovered but is constantly bleeding due to which her condition has become precarious. Learned Advocate stated that on each date of hearing when applicant appeared before the trial Court, she had been complaining of profuse bleeding arid for such disease she is neither provided adequate treatment in jail nor the hospital administration has taken serious note of her condition. it is contended that in the circumstances the applicant desires to be treated by specialists of her own choice and seeks bail. In support of his contentions, learned Advocate .has referred to the following precedents:--
(1) Mst. Baboo Jana v. The State 1990 P Cr. L J 326.
(2) Barkat Ali and 3 others v. The State 1981 P Cr. L J 274,
(3) Maqsood v. Ali Muhammad and another 1971 S C M R 657,
(4) Mst. Allah Jiwai v. The State 1984 P Cr. L J 129,
(5) Ghulam Muhammad v. The State 1984 P Cr. L J 2308,
(6) Banaras v. The State 1978 S C M R 191 and
(7) Unreported order in Criminal Petition No.10/K of 1993 passed by the Supreme Court of Pakistan on the bail application of M. Ismail Shaikh v. The State.
4. Syed Tariq Ali, learned Standing Counsel, appearing for the State has opposed this application and has argued that the applicant is not seriously ill and after the treatment given to her it, J.P.M.C., her condition has improved and her case is not covered by first proviso to subsection (1) of section 497 of Cr.P.C. and she would not be entitled to bail, as the offence with which she is charged is punishable to imprisonment for 14 years. The Investigating Officer Jawaid Mughul who is present in Court wanted to be heard in the matter and he was therefore, permitted to make his submissions. He has stated that the applicant is wanted even by U.S. Drug Enforcement Administration for her criminal involvements. He has also stated that even her husband is an accused in similar cases and is required in this case as well as in cases of Peshawar but he is absconding he has stated that there is every likelihood of the applicant absconding in case she is released on bail.
5. The letter, dated 29-6-1993 issued by the Assistant Professor, Surgical Unit-I, J.P.M.C. indicates that the applicant was admitted in the hospital on 23-5-1993 and was operated for anal warts and fissure on 26-5-1993. The applicant was discharged from the hospital on 9-6-1993. The last medical report about the applicant, which is dated 20-12-1993, also shows that her examination per rectum (p.v.) could not be done as it was very painful. The report also indicates history of menorrhagia i.e. profuse bleeding per vagina since 8 months. There is a plathora of case-law where bail has been granted by the Superior Courts to an accused under first proviso to subsection (1) of section 497 of Cr.P.C. on the ground of sickness or infirmity. In the case of Mst. Baboo Jan 1990 P Cr. L J 326, bail was granted to the accused on the ground of her being a woman and a sick person. In that case the accused was facing trial for offence under section 1.56(1)(8) of the Customs Act. In the case of Barkat Ali and others 1981 P Cr. L J 274 bail was granted to the accused, who was suffering from bronehial asthama with moderate degree of anaemia and it was held that his case was covered by proviso to subsection(1) of section 497, Cr.P.C. In the case of Maqsood 1971 S C M R 657 the Honourable Supreme Court declined to cancel bail granted to the convict appellant by the High Court on the ground that he was suffering from active arthritis and urinary infection. In the case of Mst. Allah Jiwai 1984 P Cr. L J 129 the accused was granted bail on the ground that she was a female and no circumstances existed on record to warrant refusal of bail. It may be observed that the accused Mst. Allah Jiwai was facing trial on charge of Zina. In the case of Ghulam Muhammad 1984 P Cr. L J 2308 bail was granted to the accused, who was suffering from T.B. In the case of Banaras 1978 S C M R 191 bail was granted by the Supreme Court to the accused suffering from idiopathic epilepsy, a serious disease for which he was not likely to have treatment of his choice in jail hospital. In the unreported order (Criminal Petition No.10-K of 1993) the petitioner Ismail Shaikh was granted bail on the ground of illness.
6. That being the case, the applicant, in my view, is entitled to bail under first proviso to subsection(1) of section 497, Cr.P.C. on the ground of her illness so that she could have treatment of her own choice. The applicant is, therefore, granted bail and she shall be so released if she furnishes one surety in the sum of Rs.2,00,000 (Rupees two lacs) with P.R. bond in the like amount to the satisfaction of the trial Court.
7. N.H.Q./S-1066/K ??????
8. Bail granted.