2007 PLP 2962 (YLR)

This order will dispose of Writ Petition No.-10676 of 2005, Writ Petition No.10677 of 2005 and Criminal Appeal No.1678 of 2005 pertaining to the .same person, named Haji Kabeer Khan.

2. Writ Petition Nos.10676 and 10677 of 2005 are filed under Article 199 of the Constitution asking for his release on bail while Criminal Appeal No.1678 of 2005 arisen because of an order passed by the NAB .Court, dated 31-8-2005 rejecting the personal exemption of the petitioner from appearance in the Court. Whereafter proceedings were initiated against him under the provisions of section 31-A of National Accountability Ordinance, 1999. The order of this Court reads as follows:-- "This order intends to dispose of an application for- exemption of presence of accused Haji Kabir. Khan on the ground of ailment. Arguments heard. Record perused. As the bail granted to accused Haji Kabir Khan by the Honorable Lahore High. Court, Lahore was cancelled by the august Supreme Court of Pakistan and as after cancellation of his bail, the accused has not appeared before this Court to seek exemption from presence in this .reference, therefore, his application is dismissed."

3. It is followed by the order dated 7-10-2005 of this Court, which is in fact,' is the order impugned in appeal and it reads as follows:-- "The accused Shaukat Ali was proclaimed and proceeded against under section 512, Cr.P.C. pursuant to which accused Kabir Khan and Amir Nawaz Khan were charged and -the prosecution produced 13 P.Ws. and a number of documents. As pointed out above the accused Haji Kabir Khan has been proceeded against under section 87, Cr.P.C., which indicates that the accused is absconding from the trial and to submit himself to the process of law, therefore, he has committed the offence as defined in section 31-A of the National , Accountability Ordinance, 1999. He is sentenced to three years' R.I. His perpetual non-bailable warrants be also issued and his regular trial will commence as and when he is arrested and" produced before this Court for trial. The proceedings against him at present are filed."

4. In this connection, reference is made to the orders dated 13-7-2005 and 21-7-2005 passed in Writ. Petition No.10676 of 2005. The order dated 13-7-2005 reads as follows:-- "The petitioner has not appeared before this Court. It is said that he is bed-ridden in a hospital in a precarious condition and; .therefore, he cannot appear.

2. Notice to the NAB for a date in the next week. Warrants have been issued for arrest of the petitioner by the Accountability Courts for tomorrow and another for 22-7-2005. It is said that because he is bed-ridden .and on health ground operation of the warrants be withheld. The best thing would be for the petitioner in making an application seeking exemption from his appearance and offering substituted appearance on this ground before the trial Court. Until the petition is decided on these grounds the Court below shall not execute the warrants either for tomorrow or for 22-7-2005. " Whereas the order dated 21-7-2005 reads as follows:-- "In case the petitioner has approached the learned trial Court then it would be proper for the learned trial Court not to execute the warrants until he is heard and his application is decided. Refix in the next week."

5. While referring to the afore-mentioned orders of this Bench, it was stated -that the order of conviction and sentence under section 31-A was offence and was not sustainable because the learned Court below had not complied with the condition set in those orders, particularly the direction to the trial Court to decide the application of the petitioner/appellant seeking exemption from appearance on the health ground and not to execute the warrants until after taking such a decision. It is said that the trial Court order of 31-8-2005 nowhere makes reference to the disposal of the petition on the grounds which were given to him by this Bench. It is also stated that the conviction order which is a sequel to the order dated 31-8-2005 also offends the basic order passed by this Bench and, therefore, would be of no consequence.

6. Learned counsel explaining further stated that in the order dated 31-8-2005, no presence is reflected, whereas learned counsel for the petitioner was always present there and some of the others orders passed then by the trial Court are indicative of the -fact. He refers to another order passed on 31-8-2005 by the same learned trial Judge which is placed at page 32 of the file.

7. He went on to say that the petitioner was not wilfully absconding, rather he was bed-ridden in the hospital in a condition which was precarious and hazardous to his life .and that it made impossible for him to appear in the trial Court. He further went on to say that in the exemption application annexures were attached and these were medical reports reflecting the bad health of the petitioner/appellant on the basis of which the exemption was being sought and all this was totally overlooked by the learned trial Court.

8. While further proceeding with his arguments learned counsel stated that in Reference No. 16 the learned Judge of the said Court has proceeded cautiously and carefully and has not infringed the order of this Bench in any manner and has allowed an opportunity to the petitioner to appear before the said Court on 21-10-2005. It is also stated by the learned counsel for the appellant that the provisions of section 31-A were draconian and in this connection a reference has been made to the following case -laws:-- Noor Muhammad Khatti and others v. The State (2005 PCr.LJ 1889). Muhammad Arif Saigol v. Federation of Pakistan through Ministry of Interior, Pak Secretariat, Islamabad and another (PLD 2003 Lahore 733).

9. The appellant, of course, has surrendered and is now in NAB custody.

10. Learned counsel appearing on behalf of NAB was mainly arguing his case on the basis of that the petitioner was trying to avoid appearance before the Courts below and has adopted several methods one way or other in achieving this. But when pointed out as to why the direction of this Bench was followed by the said Court, he had no cogent answer.

11. Which, of course, means that the learned trial Court decided his exemption application and later on, issued warrants against him and decided the case under section 31-A of the NAB Ordinance 1999 in absentia inflicting maximum sentence through sheer haste. Even if the learned trial Court was obsessed of the fact that the petitioner was a clever and an influential person, who may be avoiding his p appearance before the trial Court, the judicial requirement was there and the trial Court was to follow the direction and what we had said and to have proceeded to decide the matter by following the due process of law and not in such a haste. We, therefore, find that there are no merits in order to conviction and sentence and, therefore, we accept this appeal and set aside the same and direct the trial Court to proceed with the trial. We would also like to bring on the record the categorical assurance given by the learned counsel appearing on behalf of the petitioner that he shall not avoid trial and will appear either personally or will always be represented by the counsel if allowed.

12. Now we come to Writ Petition No.10676 of 2005 pertaining to Reference No.38 of 2002 and Writ Petition No.10677 pertaining to Reference No. 16 of 2002, wherein the petitioner is asking for his bail. It may be mentioned that these References are sub judice before different NAB Courts. The ground taken by the learned counsel for the petitioner in both these cases asking for bail is the health ground simpliciter and there is no other ground.

13. This case has a history and it is not for the first time that the petitioner- is asking for bail. In Writ Petition No.20213 of 2002, another learned Division Bench on 18-12-2002 allowed bail to the petitioner on the health ground. The last paragraph of the order is reproduced below:-- "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 Honorable Supreme Court on 2000 SCMR 107 titled "Mian Manzoor Ahmad Watto v. The State", the object of the 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. "

14. When the order dated 18-12-2002 was challenged before the Honorable the apex Court, initially this order was upturned: But on the review petition filed by .the petitioner, the following order was passed:-- "Learned counsel for the petitioner states that he has been instructed not to press the review petitions and seek observations that if petitioner in .view of his deteriorated health status will approach the High Court .for his release on bail, the same may be decided without being influenced in any manner from the earlier observations made by this Court in the judgment under review. Dismissed as not pressed. Needless to observe that .the High Court shall dispose of the bail application if moved independently without being influenced in any manner from 'the observations already made. "

15. According to Mr. Abid Hassan Minto and Sheikh Zia Ullah, learned Senior Counsel appearing on behalf of the petitioner, there is no impediment in the way in hearing afresh these petitions for bail on the ground of health.

16. We are consequently hearing these petitions for bail.

17. Besides the material on which the previous learned Division Bench of this Court relied for allowing bail to the petitioner, learned counsel also referred to a report from Army Hospital Rawalpindi which report is Annexure-H at the file and the relevant excerpt from which is as follows:-- "

10. He again remained admitted in AFIC-NIHD Rwp from 17th January, 2003: to 8th February, 2003 with complaints of .cough and fever.

10. As per medical record available with the patient he was admitted in Jinnah Hospital Lahore on 17th January, 2005, later shifted to Doctor's Hospital and Medical Centre, Lahore under care of Dr. Shahyar A. Sheikh where he remained admitted till 27th January; 2005. There along with other supportive therapy he was transfused one pint of the blood also. Investigation done in Lahore reveal raised cardiac enzymes with variable ST Sag in Serial ECG's.

11. Detailed Clinical examination and relevant investigation carried out now at AFIC reveal the following:-- (i) He looks place and gets dyspnoeic on mild exertion. (ii) Pulse=74/min regular (iii) Blood pressure=110/70 mm Hg. (iv) No added heart sound. (v) Chest is clinically clear. (vi) Resting ECG shows. T. inversion in I. Avl. V4-V6. (vii) CXR PA dated 7th February, 2005 shows cardiomegaly and left pleural effusions/Thickening. (viii)2-D Echo dated 7th February, 2005 reveals dilated LV with reduced LV function. Ejection fraction is around 40 % with grade IMR. (ix) USG Abdomen dated 7th February, 2005 reveals renal size on lower side bil with chronic pyslone phrities (left mild changes), lowgrade chronic renal pancnchyamal disease, minimal fatty changes in liver and cholelithias. Ref Values Blood glucose Random (8-2-2005) = 331 mg/dl (60-200) Blood H B (8-2-2005) = 8.6 g/dl (13-18) Blood glucose fasting (9-2-2005) = 176 mg/dl (60-100) Blood Uric Acid (9-2-2005) = 8.7 mg/dl (3-7) Blood Urea (16-2-2005) = 150 mg/dl (10-50) Serum creatinine (16-2-2005) = 2.30 mg/dl (0.6-1.1) Creatinine clearance (16-2-2005)+21.3 ml/min (95-140)"

18. We are inclined to accept the reasons which have been given by the previous learned Division Bench of this Court granting bail to the petitioner with some modifications which we are proposing hereinafter. Learned counsel appearing on .behalf of the NAB was also not able to point out any infirmity in the order of the previous learned Division Bench admitting the petitioner to bail on the medical ground simpliciter.

19. The real concern of the prosecution ought to be that the petitioner faces a just trial and the prosecution has to afford all opportunities to him for this purpose.

20. The next thing is to safeguard the interest of the prosecution in ensuring that the petitioner faithfully participates in the trial proceedings and the trial proceeds and if he has genuine health problem to allow him respite in accordance with law for meeting the ends of justice and while ensuring the trial proceeds with expedient dispatch.

21. We have been assured by the learned counsel for the petitioner that the petitioner wily be appearing faithfully before the trial Court and will not create any hindrance in the way of trial. We only direct him not to break this commitment during his trial.

22. The best way to safeguard the interest of the prosecution and the petitioner will be to accept the plea of the petitioner .for bail in both these Writ. Petition and allow him ad interim post-arrest bail provided he furnishes bail bounds in the sum of Rs.10,00,00,000 (Rupees Ten Crore) in each case with one respectable surety in each case having the worth accordingly to the satisfaction of the learned trial Courts until the next date which is fixed as 21st of November, 2005 with a clear direction to him to appear in person, or through a counsel when on a particular date he is unable to appear and his counsel has a medical certificate to that effect and regularly on each date of trial, otherwise, this itself will be a ground for recalling of the order. Any future extension in this bail will also subject to the above condition and his faithful adherence to what has been stated' above. Order accordingly. N.H.Q. /K-22/L Interim post arrest bail granted.