SANAULLAH BABAR vs THE STATE and 2 others

IJAZ-UL-HASSAN, J.---The petitioner, a retired Superintending Engineer, C&W Department, Peshawar, has filed instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, for the grant of bail on medical ground.

2. The petitioner was taken into custody on 2-1-20Q2 by the NAB Authorities on the allegation of having, during his service career, accumulated movable/immovable properties and other assets, incompatible with his known legitimate sources of income. Presently, he is facing trial under sections 9/10 of the National Accountability Ordinance, 1999.

2. Appearing on behalf of the petitioner, Syed Zaffar Abbas Zaidi, Advocate contended infer alia, that the petitioner is more than 65 years of age and is old patient of diabetic and the advanced years of age has further contributed to his miseries. The ailment with which the petitioner is suffering, is likely to have hazardous effects on his life because stress and strain may aggravate his disease. The petitioner is sick and needs treatment in conducive conditions free from any kind of pressure. In custody, it cannot be said that the petitioner shall have full peace of mind. His recovery from ailment shall be slow if he remains in detention. The learned counsel reiterated that the petitioner had to undergo surgery thrice because of his bones specially lower parts of his body are getting exposed due to excessive level of sugar. In the process, the petitioner has also been operated twice on hernia, both on his left and right sides. Similarly, his both eyes have been operated and lenses have been inserted. The general physical condition of the petitioner keeps on deteriorating day by day and he needs proper investigation and appropriate treatment. In support of his submissions, our attention has been drawn to the medical report dated 19-2-2003 submitted in compliance with the order of this Court. The report is as follows:-- "The Standing Medical Board is of the opinion that the patient investigations are as follows:-- E.T.T. Positive for Ischemia Negative for angina.

ECHO Left ventricular Hypertrophy (LVH) Aurtic Sclerosis, Mild AR. Blood Sugar Fasting 290 mg and Blood Sugar Random 340 mg/dl, Uric Acid 12.5 mg/dl, S.Chlestrol 240 mg/dl, Trigyceride 1800 mg/dl Serum Electrolytes. NA - 137 mmol/lt: K - 4.5 mmol/It: He is insulin dependent diabetic having backache and above investigation results. He will need management under supervision of qualified medical practitioner. STATION PESHAWAR. DATED 19-2-2003. The learned counsel in order to augment his contentions, placed reliance on an unreported judgment of the august Supreme Court of Pakistan titled Dr. Ali Akbar Khan v. Chairman, NAB, HQ, Islamabad etc. (CA.57/03 in C.P.L.A. No,2517 of 2002).

3. Qazi Rashidul Haq, learned Special Prosecutor for the NAB, on the other hand, opposed the concession of bail and maintained that disease with which the petitioner is suffering, is not of such a nature to provide a ground for release of the petitioner on bail and that trial is in progress and in case the petitioner is admitted to bail it shall adversely affect the case of the prosecution. He relied on the State v. Dr. Usman Farooqi and 2 others PLD 1988 Karachi 148.

4. We have heard at length the arguments and submissions of learned counsel for the parties with reference to the material on file.

5. The petitioner is more than 65-years of age and is at the tail-end of his life. The advanced age coupled with infirmities and number of diseases which require specialized treatment and extreme care and diet cannot be ignored and kept aside while considering the plea of bail on medical ground. A perusal of the record would reveal that the petitioner is a diabetic patient and has recently undergone two operations of hernia both on left and right sides. The petitioner is also patient of high blood pressure and hypertensive. His both eyes have been operated and lenses have been inserted. His recent E.C.G. Has been adjudged to be not satisfactory. His recovery from ailment shall be, surely, slow if he remains in detention. The prescriptions and treatment record of the petitioner clearly tends to suggest that the petitioner's detention in jail or even his stay in hospital may result in petitioner's collapse any time. The petitioner requires immediate treatment, hospitalization and close monitoring by specialist in a well equipped hospital. This object obviously cannot be achieved by detaining the petitioner in jail indefinitely or to refer to him to a hospital for the purpose of treatment for a limited time. The bail on medical ground can be granted if the Court reaches a conclusion on the basis of medical report that the ailment with which the accused is suffering is such that it cannot be properly treated in jail and some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life.

6. Adverting to the other objections raised on behalf of the NAB, regarding commencement of trial, it is true that trial is in progress and 22 prosecution witnesses have already been examined but it is equally true that the remaining P. Ws. Evidence is yet to be concluded whereafter the defence evidence would take equally long time and bulk of documents will have to be taken into account.

There is no likelihood that trial would be concluded in near future. The commencement of trial does not pose an insurmountable obstacle in the way of the petitioner for grant of bail on medical ground. The authority cited on behalf of the NAB is distinguishable and has no bearing on the facts and circumstances of the present case. In the said authority, the disease of the accused person was not found serious in nature and it was pointed that there are apprehension of running away of the accused from the country, in case he was enlarged on bail.

7. Having considered the matter from all angles, we are of the opinion that the petitioner is entitled to the concession of bail on medical ground. The application is allowed and the petitioner is directed to be released on bail on furnishing bail bonds in the sum of Rupees Ten Millions with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court. Above are the detailed reasons for our short order dated 22-4-2003.