THE STATE vs Haji KABEER KHAN

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---The State through Prosecutor General NAB has sought leave to appeal against the order dated 18th December, 2002 passed by Lahore High Court, Lahore whereby on accepting Writ Petition No,20213 of 2002, relief of bail was extended to respondent No,1 on medical ground. Operative para. From the order reads as under thus:- "After going through the medical report and medical history of the petitioner we are of the view that the detention of the petitioner in jail is hazardous to his life. And the treatment which he needs off and on for his ailment cannot be provided within the jail premises and as per dictum laid down by the Hon'ble Supreme Court in 2000 SCM R 107 titled "Mian Manzoor Ahmed Wattoo v. The State", the object of criminal prosecution was not to punish the accused for the offence alleged against him but to make him face the trial and answer the criminal charge against him, we without dilating upon the merits of the case admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs,10,00,00,000 (ten'crore) with two sureties each in the like amount to the satisfaction of the trial Court."

2. Precisely stating facts of the case are that respondent was convicted/sentenced under Reference No,5 of 2000 in the month of April, 2000 by the Accountability Court No,1 in Peshawar. It seems that at the time of conviction/sentence he was admitted at Ayub Teaching Hospital, Abbottabad for medical treatment. The order of conviction/sentence could not attain finality as in appeal, learned Peshawar High Court on setting aside it, remanded the case to the Accountability Court for its disposal. Against which respondent filed petition for leave to appeal before this Court which was accepted and case was sent back to the Peshawar High Court with the direction to decide the case itself on the basis of the record. Meanwhile on 24th July, 2002 the Chairman, NAB submitted Reference No,16 of 2002 against the respondent and six others. Statedly respondent was formally arrested in this case, therefore, apprehending that he might not be released after disposal of his appeal pending on the file of learned Peshawar High Court, he submitted Writ Petition No,20213 of 2002 for his release on bail.

' Similarly the Chairman NAB also filed another Reference bearing No,38 of 2002 dated 9th August, 2002 in which he was not formally arrested. Thus apprehending his arrest in this case as well he preferred Writ Petition No,20214 of 2002 for bail before arrest which has been allowed vide order dated 18th December, 2002. Operative para. Therefrom for convenience is reproduced hereinbelow,:- "For the reasons recorded in connected petition Writ Petition No,20213 of 2002 the petitioner is also admitted to bail on the ground of ailment in this case as well subject to his furnishing bail bonds in the sum of Rs,10,00,00,000 (ten crore) with two sureties each in the like amount to the satisfaction of the trial Court."

3. Learned Prosecutor-General contended that learned Division Bench of the High Court had fallen in error in granting bail to respondent on medical ground; firstly for the reasons that he has spent most period of his detention in hospital i,e, District Headquarters, Haripur, Ayub Teaching Hospital, Abbottabad and Armed Forces Institute of Cardiology, where he had been receiving the best kind of medical treatment including the facility of angiography which revealed triple vessels coronary Artery disease and ultimately he went under "Coronary Bypass Surgery (CAGB)" and as far as other diseases complained by him i,e, Diabetic de-compensation and Renal Impairment etc. Are concerned, full medical cover has been provided to him in one of the best hospitals of the country, therefore, the High Court granted the bail to the respondent in violation of the law laid down by this Court time and again i,e, the accused shall be released on bail in the non-bailable cases if his detention in Jail is hazardous to his life and is not likely to get the proper treatment in the jail.

4. On the other hand learned counsel for respondent vehemently argued that the respondent had been attempting to bail because he was suffering from such diseases, treatment of which was not possible in Jail, therefore, his detention was hazardous to his life. In this behalf he referred to the report of Medical Board which has been produced in pursuance of order dated 4th February, 2005 to substantiate that after release on bail the respondent remained admitted in Jinnah Hospital, Lahore on 17th January, 2005 where he remained admitted till 27th January, 2005. In support of his arguments he relied upon the judgments in the cases Mian Manzoor Ahmed Wattoo v. The State (2000 SCM R 107), Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546) and Muhammad Saeed Mehdi v.

The State 2 others (2002 SCM R 282).

5. We have heard parties counsel at length and have also examined thoroughly the precedent law on the subject. At the very outset it is necessary to point out that the respondent had obtained post-arrest bail in Reference No,16 of 2002 dated 24th July, 2002 by invoking Constitutional jurisdiction of the High Court in view of the observation in the case Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division and others (PLD 2001 SC 607). Whereas in Reference No, 38 of 2002 he succeeded in getting pre-arrest bail by filing Writ Petition No,20214 of 2002 despite of the fact that in Khan Asfandar Wali (ibid) case, no observation for grant of pre- arrest bail has been made by this Court. Be that as it may this aspect of the case would be attended later on but at this stage there is yet another important aspect of the case which requires to be highlighted namely that according to reports, which have been relied upon by learned High Court, the respondent remained in the hospital as indoor patient during which he also gone through the CABG etc. Up to 11th April, 2002 and thereafter he was stable and was on medications.

These facts are being noted to point out that it is not the case of respondent that he was not getting proper treatment during his detention. Undoubtedly had he remained in custody in Jail without above classic treatment then he,could have made out a case for bail on medical ground because the law laid down by this Court is that if the ailment with which the accused is suffering is not being properly treated while in custody in Jail, then his case on medical ground can be examined. In the instant case admittedly as it has been pointed out hereinabove the respondent had been receiving proper treatment in the renowned hospitals of the country, therefore, it was incumbent upon the High Court to have applied its independent mind before exercising discretionary jurisdiction in his favour while noting the facts, narrated hereinbefore, particularly that, at the time of his surgery etc. When he was admitted in the hospital, he had never requested for grant of bail because he was quite satisfied with the treatment being offered to him. In this behalf it can conveniently be said that if an accused is suffering from ailments but is already in hospital where he is getting the treatment according to his own choice, his case will not fall within the exceptions of the provisions of section 497(1), proviso Cr.P.C. Reference in this behalf may be made to the cases of Haji Rahimullah v. The State and another 1970 SCM R 514 and Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58. Relevant para. Therefrom is reproduced hereinbelow:-- "From the above discussed position it is clear to us that the bail on medical ground can be granted under section 497, Cr.P.C. If the Court reaches the conclusion on the basis of medical report that the ailment with which the accused is suffering is such that it cannot be properly treated while in custody in Jail. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be a ground either to refuse or grant the bail on medical ground. 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. In the case before us not only there is a categorical statement by the Members of the Board, constituted to examine the condition of the appellant, that there was no possibility of treatment of the appellant's injury even in specialized centres of Peshawar but also in other areas of the country, the Board also recommended immediate treatment of the appellant in a foreign country to avoid disability. We have also on record a letter from Dr. Salim Mahmud of 'The Medical Centre, 80 Fortune Green Road, London' addressed to Visa Section British High Commission, Islamabad Pakistan, in which the said doctor after discussing the case of appellant with a specialist had advised the patient (appellant) to reach London for his extensive reconstruction surgery, and fixed his appointment for 25-7-1994. The estimated expenses were as Pounds 7,000 to Pounds 8,000. We are, therefore, of the view that in view of this categorical statement made in the report of the Medical Board constituted by the Court for examining the condition of the accused, there is no necessity for calling for any further medical opinion in the case. Keeping in view of the nature of treatment required for the injury suffered by the accused, the trial Court rightly granted bail to the accused. We, accordingly, admit the accused appellant to bail in the sum of Rs,10 lacs with two sureties in the like amount to the satisfaction of the trial Court."

' The above principle has been reiterated in the case of Muhammad Arshad v. The State 1997 SCM R 1275, Muhammad Aslam Bajwa v. The State PLD 2004 SC 780 and Shahabzuddin Chaudhry and another v. The State PLD 2004 SC 785.

6. Learned counsel for respondent contended that learned High Court had decided the case of respondent in view of the observation in the case of Mian Manzoor Ahmad Wattoo (ibid). In this behalf it is to be noted that in criminal administration of justice each case has to be examined on its own fact and circumstances and Courts are required to exercise jurisdiction independently.

Besides it petitioner-Mian Manzoor Ahmed. Wattoo remained in jail where specialized treatment was impossible, therefore, when his case came up for hearing he was directed to be examined by the experts of AFIC. Simultaneously by passing an interim order he_was directed to be shifted AFIC within a day or two till disposal of the petition. Whereas in instant case the respondent had never gone to Jail and had been receiving treatment either in Ayub Teaching Hospital, Abbottabad or in FICUNIHD Rawalpindi, therefore, this judgment has no bearing on this case.

' In addition to it we may observe that when it has been established as a matter of fact that the respondent has been getting proper treatment in the hospital or in Jail he would not be entitled for grant of bail as it has been held in the case of Zarin Khan v. The State 1980 SCM R 305.

7. As far as the case of Ch. Zulfiqar Ali (ibid) is concerned it needs no discussion because no principle of law has been pronounced therein. Inasmuch as the judgment in the case of Malik Muhammad Yousafullah Khan (ibid), wherein the principle of law for releasing a person has been discussed, was not brought in the notice of the Court. As far as the judgment in the case of Muhamamd Saeed Mehdi (ibid) is concerned it is also not attracted in view of the facts of the case because the petitioner in that case was not in hospital but was in Jail, therefore, he was held entitled for bail as it was not possible to provide him a specialized treatment in Jail.

8. At this juncture it is to be noted that a report was called for from the Medical Board constituted by the "Commandant AFIC, Rawalpindi in pursuance of order dated 4th February, 2005 to assess the present status of health of respondent because we have to examine the impugned order of the learned High Court in view of the material available on record but nevertheless in the interest of justice during the pendency of application for grant or for cancellation of bail such report can be called for from an institute having specialization in the diseases with which respondent is allegedly suffering. The report indicates that the health of the respondent is improving.

' We may note here that the Courts are not required to qualify or quantify the nature of disease and once a case is made out under the recognized principle, laid down by this Court in this behalf, bail is to be granted on medical ground leaving prosecution at liberty to move the Court for cancellation of bail if health of accused has improved during pendency of proceedings, because on the ground of sickness or infirmity, on exceptional term law has offered an opportunity to an accused to J enjoy the concession of bail subject to satisfying the Court about the nature of his ailment as well as on the ground of non-getting of proper treatment in jail, but no sooner the accused has improved his health the prosecution can come forward with the request to withdraw the concession of bail.

9. Now turning towards the case arising out of Writ Petition No,20214 of 2002 wherein respondent had sought bail before arrest in Reference No,38 of 2002. It is to be noted that under the NAB Ordinance there is no provision for-grant of bail before arrest, therefore, this Court while examining the vires of 9(b) of the NAB Ordinance in the case of Khan Asfandyar Wali (ibid) took view that High Court shall exercise this power sparingly in rare and exceptional circumstances for valid reasons to be recorded in writing. In this behalf reference can also be made to the case of Meeran Bux v. The State PLJ 1986 (sic) 526 and Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82. As such we are of the opinion that the powers for grant of bail conferred by this Court has to be exercised strictly keeping in view the observations made therein but it seems that the learned High Court had not recorded reasons indicating the exceptional circumstances for exercising extraordinary Constitutional jurisdiction in favour of respondent particularly in the case in which the accused had not been arrested and no ground of mala fide for bail before arrest has been attributed to the prosecution in the memo. Of petition.

' Besides it respondent had failed to bring his case within the said principles, as such he was not entitled for bail before arrest as it has been held in the case of Malik Zafar Abbas v. Agha Raza Abbas Qazilbash and another PLD 2002 SC 529. Therefore, for this added reason, impugned order dated 18th December, 2002 in Writ Petition No,20214 of 2002 is not sustainable in law.

' Thus for the foregoing reasons Civil Petition Nos. 99-L and 100-L of 2003 are converted into appeals and allowed as a result whereof order dated 18th December, 2002 in both the petitions is set aside. Before parting with the judgment we may observe that the Accountability Court may dispose of the reference pending against the respondent expeditiously in the interest of justice.