2022 PLP 150 (YLRN)

MUHAMMAD FAISAL KAMAL ALAM, J.

Petitioner is seeking post-arrest bail as his earlier petition along with other petitioners was dismissed vide Order dated 07.03.2017, which was challenged before the Hon'ble Supreme Court, but without any success. The earlier Orders of this Bench and of Apex Court, in number of civil petitions, including the one filed by the present Petitioner, are enclosed with the Statement dated 18.03.2021 produced by the learned counsel for the Petitioner, which is part of the record.

2. The Petitioner has been booked in Reference No. 06 of 2016 sub judice before the learned Accountability Court at Sukkur.

3. As per the contents of above Reference, Investigation Report reveals that above Petitioner/accused No.1 in the said Reference, is involved in the embezzlement / misappropriation of Government funds willfully, dishonestly and misused his authority as Branch Manager of National Bank of Pakistan, and in connivance with other accused persons had caused loss to the national exchequer to the tune of Rs.12,29,15,296/-, as fake invoices and dummy sheets were created and fake pension bills were credited into the accounts of the accused persons. The accused persons including the Petitioner have said to have committed corruption and corrupt practices as envisaged in the National Accountability Ordinance, 1999 [NAB Law].

4. Argument of learned counsel for the Petitioner is that recently health of Petitioner is deteriorating and he is seriously ill. Since present petition seeking bail is on health grounds, hence, earlier Decisions are not an obstacle in seeking such relief. He has relied upon the following case law to augment his arguments: Mian Manzoor Ahmad Watto v. The State (2000 SCMR 107) -Mian Manzoor Ahmad case. Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others (2006 SCMR 1225) -Peer Mukaram-ul-Haq case. Qazi Mushtaq Ahmed v. Chairman, National Accountability Bureau through NAB(K) Sindh (2018 YLR 134) Qazi Mushtaq case.

5. The learned Special Prosecutor NAB has opposed the bail, inter alia, on the basis of earlier Decisions declining the concession of bail and the purported central role of present Petitioner in the above Reference No. 6 of 2016. In support of his arguments, he has cited the case of The State v. Haji Kabeer Khan (PLD 2005 Supreme Court 364).

6. Arguments heard and record perused.

7. Earlier in compliance of the Order dated 14.05.2020, a Medical Board was constituted and Ghulam Muhammad Mahar Medical College Hospital at Sukkur (GMMMC Hospital) has given its opinion. The above order required that a Medical Board has to determine that Petitioner's confinement in jail is detrimental to the life or not. As per the recommendation, confinement of accused / present Petitioner in jail is detrimental to his life. The relevant portion of the Report dated 08.06.2020 is reproduced herein under: "The said accused examined by above named consultant on 02.06.2020 and he is known case of diabetes mellitus 2, IHD, LVF (left ventricular failure (LBBBE) and diabetic foot. All routine investigation carried out such as HbA1 c, Urea, creatinine Rbs, Hbsag, Anthcv, ECG, Urine DR, X-Ray Chest. From diabetic point consultant physician reviewed and blood sugar control and stable on regular medicine. The consultant orthopedic surgeon also examined the above named accused and advised that would healed at the site of amputation but only complain of pain in left foot. The said accused suffering from ischemic heart disease, severe left ventricle LBBB is very low and he is symptomatic and his ejection friction 20-25%. The Chairman and Members of Medical Board Unanimously opined that the confinement of accused Muhammad Arif son of Muhammad Moosa in jail is detrimental to his life."

8. The above Medical Report was objected to by the Prosecution/ Respondents by filing their objections dated 22.07.2020. Main ground of objections is that earlier Medical Report submitted by the Chief Medical Officer, Central Prison, did not form an opinion that ailment of Petitioner is dangerous to his life and hence the subsequent Report (as referred above) of GMMMC Hospital and the one submitted by Chief Medical Officer, Central Prison, are contradictory to each other.

9. However, the Order dated 22.07.2020 has made certain significant observations. While dealing with the above objections of learned Special Prosecutor, it is observed that the latter has submitted that in order to resolve ambiguity/contradiction (in the above two Reports), matter may he referred for a second opinion to the Agha Khan University Hospital at Karachi (AKUH). Consequently, the matter was referred to AKUH with the observation and direction that.... "Under the circumstances, in order to address the objections raised and dispel doubts as to the medical condition of the petitioner, we are of the view that before decision of the matter, the petitioner may firstly be referred to AKUH for examination at his cost by an appropriate panel of medical practitioners having requisite expertise in the relevant fields, and assessment of whether his ailments are life threatening as such as can be treated in jail."

10. Report from the Agha Khan University Hospital, Karachi, has been placed in the record and the same has been examined. AKUH has constituted a Medical Board and has given its opinion with regard to illness of present Petitioner/ accused as well as answered the query of this Court by stating that Petitioner is suffering from life threatening illness which requires further treatment. Relevant portion of the Report is reproduced herein under for reference: "a. Mr Muhammad Arif Musa is suffering from symptoms of heart failure secondary to severely reduced left ventricular systolic function. He is at risk of ventricular arrhythmias (dangerous/life threatening heart rhythm problem) for which he has DR-ICD implanted. He can have ICD shock and he needs further investigation to ascertain the cause of his left ventricular systolic dysfunction. We believe that this may not be possible within the jail premises. b. Mr. Muhammad Arif Musa has significant kidney disease and needs nephrology review regarding this. c. Mr. Muhammad Arif Musa did have life threatening illness as mentioned above and needs further investigations and treatment."

11. Petitioner is in custody for the past almost four years. Investigation has been completed but the trial has not, even though there is a direction in the afore referred Order [dated 07.03.2017] for conclusion of trial within six months. Petitioner is not in a position to either temper with the evidence or influence the witnesses. The decision relied upon by the Respondents --NAB, in the case of Haji Kabeer Khan (ibid) is distinguishable, inter alia, because respondent/accused (of the above reported case) was already convicted in one Reference and was arrested in a subsequent Reference. However, the Apex Court (in the above case) has also held that once a case is made out under the recognized principle, for grant of bail on medical ground, then bail is to be granted, leaving Prosecution at liberty to move the Court for cancellation of bail if health of accused has improved during pendency of proceeding. To the facts of present case, the rule laid down in the reported decisions relied upon by the Petitioner's Advocate is applicable; which is, when sickness and ailment is such that some specialized treatment is needed, which is not available within the premises of jail and his continued detention is hazardous to his life, then the accused is to be granted bail.

12. In view of the above discussion, this Petition is accepted and accused is granted bail upon furnishing solvent surety in the sum of Rs.50,00,000/- (Rupees Five Million only) and P.R. bond in the like amount to the satisfaction of learned Accountability Court at Sukkur.

13. It is expected that trial will be concluded expeditiously. No observation made herein will in any way influence the trial proceeding and the decision. SA/M-13/Sindh Bail granted.