DR. MUHAMMAD HASSAN RIZVI Versus THE STATE

ORDER

1. These two bail applications are moved by the applicants, who are facing trial before the IInd Additional Sessions Judge, Hyderabad, for the offences punishable under sections 395, 385, 365 and 364 read with section 109, P.P.C.

2. The facts of the case in brief are, that one Sullaiman Dswood, a leading business‑man of Karachi, while visiting his land in Tando Muhammad Khan, Taluka, was kidnapped by four persons, who were armed with Kalashnikov rifles at 3‑00 p.m. on 15‑5‑1987. Such F.I.R. was lodged by one Abdul Jabbar, an employee of Sullaiman Dawood at Bulri Shah Karim Police Station on the same date at 4‑30 p.m. The present two applicants are alleged to have approached Ahmad Dawood, head of Dawood family, and brother of Sullaiman Dawood, and ransom amount was settled at Rs.25 lacs, out of which 8 lacs was paid to the applicants. Sullaiman Dawood was recovered from the kidnappers, and was escorted from Tando Bula Khan side by the present applicants alongwith others and was restored to his family on 18‑5‑1987. After restoration of Sullaiman Dawood, it is alleged, that the applicant, Dr. Rizvi, asked Ahmed Dawood to pay Rs,50,00,000, but Ahmed Dawood refused to pay the same, saying, that the deal was settled at Rs.25,00,000. It is alleged, that applicant, Dr. Rizvi, was infuriated by this refusal and threatened that the kidnappers themselves would take the money. It is further alleged on the intervention of applicant, Abdul Razak Mania, the ransom amount was settled at Rs.25,00,000; and balance of Rs.17,00,000 were paid to applicant, Dr. Rizvi, at the house of applicant, Razak Mania. In the meantime, this incident got nationwide publicity, and the present two applicants were apprehended by the police under the M.P.O. and the investigation was conducted by C.I.A. and other police agencies. On 14‑6‑1987, applicant, Dr. Rizvi, was arrested by police; on 13‑6‑1987, Abdul Razak Mania was arrested by police in this case and order under MPO was withdrawn. The Police has submitted challan in the. Court, and the case is pending before the Sessions Court, Hyderabad.

3. Both the applicants moved the Sessions Court for grant of bail, which application was rejected by the learned IInd Additional Sessions Judge, Hyderabad, vide his order, dated 6‑7‑1987. Hence these two bail applications, which I propose to dispose of by this single order.

4. I have heard Mr Muhammad Hayat Junejo learned Advocate. for applicant, Dr. Rizvi, Mr. Rustom J.E. Kaikobad Learned Advocate for applicant, Abdul Razak Mania, and Mr. Abdul Rahim Kazi, learned Additional Advocate‑General for the State.

5. Before the learned IInd Additional Sessions Judge, the learned counsel' for applicant, Dr. Rizvi, had made statement, that he did not press the bail application on merits but only pressed the bail on the ground of his sickness. The learned Additional Sessions Judge, therefore, while passing the order, considered only the ground of sickness. Mr. Junejo wanted to argue the bail application on merit also, but in view of the fact, that this ground was not pressed before the Additional Sessions Judge, nor this ground was taken in the bail application, the learned Additional Advocate‑General appearing for the State, opposed this request of Mr. Junejo, which objection was upheld by this Court.

6. Mr. Junejo had relied upon the certificate, issued by the Medical Board, which examined the applicant, Dr.. Rizvi, on 22‑6‑1987. This Board of Doctors was constituted by Director, Health Services, Sind, on the orders issued by a D.B. of this Court before whom applicant, Dr. Sizvi, had moved bail application during proceedings against him under M.P.O. It will be relevant to reproduce the findings of the Board which reads as under: ‑--

7. "Detenu Dr. Muhammad Hassan Rizvi, was examined by the Board today. His blood was examined and his X‑Rays of Chest and Kidney were taken. His E. C. G. was also done. From perusal of these reports and from his physical examination the Board is of the opinion, that he is suffering from uncontrolled diabetes millitus and renal failure. He is known Hypertensive under control on beta blockers. He is treating his diabetes himself without any blood sugar controls. He has .a past history of hypocardial infarction treated in New York. He is complaining of frequent bouts of Angina in spite of adequate beta blockers. His plain abdominal X‑Ray reveals possibility of stone in the Ureter and needs an IVP after controlling his Urea and Angina condition.

8. Under the circumstances detailed above Board is of the opinion that he should be hospitalized immediately for adequate control of his diabetes, renal failure and Ischaemic Heart Disease, at a place where specialist care is available."

9. At the time of argument, Mr. Junejo produced another certificate, dated 19‑7‑1987, issued by the Resident Medical Officer, Liaquat Medical College Hospital, Hyderabad which is reproduced as under:‑

CERTIFICATE

10. "This is to certify that Dr. Muhammad Hassan Rizvi has been admitted in this hospital under the care of Prof. A.K. Abbasi Sahib and Prof. Irshad Moriani Sahib, since 28th June, 1987. Since his admission his diabetes shown Mellitus and Diabetic Renal Failure have not any improvement and his blood sugar and kidney function remain deranged and his condition is deteriorating. His cardiac condition due to Old Inferior and Septal M.I. remains unchanged. He has, therefore, been advised to seek treatment at the Nephrology Unit at Jinnah Postgraduate Medical Centre, Karachi.

11. (Sd.) Dr. Saifuddin Saif

12. Resident Medical Officer

13. Liaquat Medical College Hospital, Hyderabad."

14. Mr. Junejo contends, that a sick person like applicant, Dr. Rizvi, is entitled to the concession of bail in view of proviso to subsection (1) of section 497, Cr.P.C.

15. Mr. Abdul Rahim Kazi, learned Additional A.‑G. appearing for the State, however argues, that the provisions of first proviso of section 497(1), Cr.P.C. are not mandatory, but are discretionary. He argued, that a sick accused person whose case falls under subsection (1) of section 497, Cr.P.C. is not entitled to bail as a matter of right, but the Court may in exercise of its discretion grant him bail. He argues, that while exercising this discretion the Court has to take into consideration the nature of sickness, the treatment and facility of treatment, that the prisoner is getting while in custody and also whether his detention in prison would be detrimental to his life. It is contended by him, that the applicant, Dr. Rizvi, is a senior and well‑known doctor, and this factor could have weighed with the members of Board, who issued the certificate. He further argues that the second certificate issued by the R.M.O.I of Liaquat Medical Hospital, has not been issued in pursuance of any order of this Court, nor it is issued by the specialists, who in this" certificate are shown to be treating Dr. Rizvi, and therefore, said certificate is of no value. Mr. Junejo was asked, if he would like this Court to call the opinion of the doctors, who are presently treating the applicant. Mr. Junejo, after consulting some persons who apparently appear to be representing applicant, Dr. Rizvi, replies in negative. Mr. Junejo however, contended, that this certificate was the verbatim copy of the notes made on the sheet of the patient, by the specialists, but this contention is not borne out from the certificate itself. In view of the reluctance of the applicant to call for the opinion of doctors, ‑who are presently treating him, I am of the opinion, that the certificate issued by R.M.O. of Liaquat Medical` College Hospital, is of no value while considering the question of bail of Dr. Rizvi.

16. It is contended by Mr. Kazi, that the certificate of the Board is vague. It does not show as to what was the blood reading of the applicant on which the Board formed opinion about his uncontrolled diabetes mellitus and renal failure. Opinion about his hypertension also appears to be based upon their previous knowledge of history given by Dr. Rizvi himself. It is further contended, that the E.C.G. of Dr. Rizvi, was taken but the report does not show whether E.C.G. disclosed any heart ailment but the opinion of the Board is based upon the oral complaint of the applicant. Similarly, it is contended, that the Board is not clear about their opinion of presence of stone in the ureter. It is also contended, that though Dr. Rizvi is said to have got himself treated in New York, but neither such report has been produced, nor is there evidence, that he had recently undergone any treatment for his ailment in New York. Admittedly, when he was arrested at the Karachi Airport, he had come from New York. It is further contended by Mr. Kazi, that Board had only advised, that he should be hospitalized at the place where specialists are available. It is stated by Mr. Kazi, that the applicant is hospitalized in Liaquat Medical College Hospital, where even according to certificate produced by the applicant, he is being treated by specialists namely, Dr. Abdul Karim Abbasi, and Dr. Irshad Moriani. Mr. Kazi further contended, that if the applicant was not satisfied with their treatment, the Government was prepared to get him treated in the National Cardio‑Vescular Institute, Karachi. He further argued, that applicant being an eminent doctor was naturally getting full and proper attention from doctors, who are treating him.

17. Mr. Junejo has relied upon some case‑law in support of his contention, that a sick man is entitled to be released on bail. In 1986 S C M It 847 their Lordships of Supreme Court granted bail to the accused persons when at their directions, he was examined by Heart Specialist who found, that the petitioner was suffering from serious ailment, which rendered his confinement in jail hazardous to his life. In 1982 S C M R 975 bail was granted to the accused person aged 55 years, where medical certificate showed, that he was suffering from heart ailment and that detention would seriously affect his health. Their Lordships of Supreme Court refused to interfere in the case reported in 1978 S C M R 191, when bail was granted to the accused by High Court who was suffering from idiopethic apilepsy, a serious disease and who was not likely to have treatment of his choice in jail hospital and besides fits were occurring and it was difficult for the jail authorities to look after him.

18. Mr. Abdul Rahim Kazi, learned Additional A.‑G. has relied upon the case of Zarin Khan v. State 1980 S C M R 308. In that case the petitioner was found suffering from asthmatic bronchitis of a chronic type with left pulmonary T. B. Bail was refused to the petitioner as according to the Medical Board all that petitioner needed was only proper treatment whether inside or out side jail. In the instant case, we have seen that the medical board has recommended proper hospitalization and medical treatment of applicant by some specialist which treatment is being carried out by the Government as pointed out above. The report of the medical board does not show that the detention of the applicant in the jail hospital would be hazardous or detrimental to his health or life. The certificate produced by the applicant of the R.M.O. of Liaquat Medical Hospital is of no value for the reasons already mentioned above. In these circumstances, the cases relied upon by the learned counsel for the applicant are distinguishable from the facts of the instant case.

19. In the case of Izhar Haider v. Zahid Hussain and others 1981 S C M R 847 it was held that the second proviso to subsection (1) of section 497, Cr.P.C. does not entitle an infirm person to bail. It merely confers discretion on the Court to grant bail in appropriate cases.

20. Mr. Kazi has also relied on the case reported as State v. Zubair and 4 others P L D 1986 SC 17 3. It was held therein by the Honourable Judges that if a ground was available to the accused at the time when the first bail application was filed, and was not taken or was not pressed, it cannot be considered as a fresh ground and be made the basis of any subsequent bail application. In the instant case the application on merits was not pressed before the learned Sessions Judge and as such it cannot be pressed in this Court also.

21. Now I proceed to discuss the case of applicant Abdul Razak Mania, who has pressed his bail application on merits. As already pointed out, that the part assigned to this applicant by the prosecution is that after the kidnapping, the present applicant alongwith applicant Dr. Rizvi approached Seth Ahmed Dawood and ransom price was fixed at Rs.25,00,000 and after getting a part of ransom price, both the applicants were instrumental in the release of Sullaiman Dawood from the kidnappers and they escorted him from Thana Bula Khan to his house. It is further alleged, that the balance of the ransom amount Rs.17,00,000 was paid to Dr. Rizvi at the house of Abdul Razak Mania. These facts for the purpose of this bail application are not disputed by the learned counsel for the present applicants, but he argued, that the applicant Abdul Razak Mania did not take money but helped the Dawood family in the recovery of Sullaiman Dawood as a family friend. The learned counsel has further argued that the part assigned to Abdul Razak Mania is same as part assigned to the other members of Dawood family and as such the applicant cannot be said to have committed any offence.

22. Both the learned counsel for the applicants as well as for the State, have taken me through the evidence against the applicant. In case of Khalid Jawaid Gilani v. State P L D 1978 SC 256 the Honourable Judges have held, that section 497, Cr.P.C. does not in terms contain any restrictions on Court's power to assess evidentiary value of material placed before it but the Courts have to refrain, directly or indirectly from giving any conclusive finding of guilt or innocence of the accused.

23. Keeping the above principle in view, I now proceed to examine the prosecution case against the applicant. P.W. Ahmed Dawood who is the head of Dawood family and who paid the ransom amount has stated, that on the same day in the evening present two applicants has approached him and told not to worry and then they brought some other persons. He has further stated, that Dr. Rizvi demanded Rs.25,00,000 from him and that Dr. Rizvi and Abdul Razak Mania came to his house and demanded the amount. He stated, that he paid 18 lacs to Dr. Rizvi after which both Dr. Rizvi and Abdul Razak Mania left. He further stated, that on the next day Dr. Rizvi demanded Rs.50,00,000 and when he called Abdul Razak Mania, he also stated, that they made settlement at Rs.50,00,000. He further stated, that he sent for Rs.17,00,000 and paid to Dr. Rizvi in the house of Abdul Razak Mania.

24. The evidence of Abu Dawood, brother of Sullaiman Dawood is also more or less on the same lines and so is the evidence of Muhammad Hussain Dawood.

25. The evidence of Sullaiman Dawood also shows, that applicants Abdul Razak Mania was in the jeep which came to escort him after release from the kidnappers from Thana Bula Khan to Karachi. Sullaiman Dawood further states, that applicant Abdul Razak Mania told him L that he should state in his statement that the accused had dropped him at Al‑Karam Square.

26. Other evidence is of Muhammad Afroze, driver of Dr. Rizvi.

27. His evidence shows, that present applicant Abdul Razak Mania associated all along with Dr. Rizvi during all these transactions.,

28. Mr. Kazi, learned Additional A.‑G. has argued, that the case has been challaned and is now fixed for hearing, therefore, the release of the applicants at this stage on bail would not be proper. When asked how much time it will take to complete the case, Mr. Kazi was of the opinion, that it would take about three to six months to complete the case. He further stated, that the medical report of Dr. Rizvi did not disclose that he was unable to attend the Court and even if he is medically advised not to attend the Court, still the Court can exempt him from appearance as he is represented by an advocate and the case can proceed in his absence. He relied upon the case of Muhammad, Sadiq and others v . State 1980 S C M R 203. In this case the Honourable Judges declined to go into the merits of the case in the form of bail application, holding that trial was to commence shortly and a date had already been fixed by the Court, therefore, the case was not fit for grant of special leave to appeal.

29. Considering all the facts and law discussed above, I do not consider, that the applicants have been able to make out the case for grant of bail at this stage. Their bail applications were, therefore, dismissed. However, if the doctors who are presently treating Dr. Rizvi form an opinion, that he cannot get treatment for his ailments in Pakistan or that his stay in jail or hospital would be detrimental or hazardous to his health or life, he may move fresh bail application. Similarly, if prosecution fails to produce witnesses or to proceed with the case within reasonable time without reasonable cause, the applicants will be at liberty to move afresh bail application. The applications were dismissed by a short order, dated 21‑7‑1987. The above are the reasons in support of the said order.

30. S.A./M‑394/K Bail refused.