2002 PLP 2199 (YLR)

2. Bail is claimed primarily on the medical ground. It is submitted by the petitioner's learned counsel that the petitioner is suffering from uncontrolled diabetes, hypertension and could not be properly treated in the jail hospital and on the advice of the Medical Board was admitted in the B.V.H, Bahawalpur; that he was recently examined by the Medical Board on 13‑6‑2002, which has confirmed his ailment; that the petitioner is a sick and infirm person and deserves concession of bail and that the Court need not quantify the ailment as held in the case of Haji Mir Aftab v. The State (1979 SCMR 320). Lastly, he submits that since this Court as an appellate Court has the power to acquit the petitioner, it enjoys the power to grant interim relief of suspension of sentence and grant of bail and the bar contained in section 9(b) of the NAB Ordinance is not applicable to the High Court because the word "Court" used in the said provision of law is relatable only to the Accountability Court as defined under section 5(g) of the Ordinance.

3. On the other hand, the learned Deputy Prosecutor General, NAB submits that he does not question the correctness of the medical report but adds that the petitioner is being taken care of in the hospital properly and has to remain there even after grant of bail, therefore, bail be not granted to the petitioner and the present state of affairs be allowed to continue.

4. There is considerable force in the arguments raised by the petitioner's learned counsel. Once it is found that a convict is a sick and infirm person his sentence can be suspended without quantifying the ailment or recording a finding to the effect that his life is in danger in jail. In the case of Haji Mir Aftab, (supra), the Hon'ble Supreme Court of Pakistan was pleased to hold that once a person was found to be sick and infirm then his case would be covered by the first proviso to section 497(1) of the Cr.P.C. and it would to be open to the Court to quantify his sickness and infirmity. The power to grant bail under section 426 of the Cr.P.C. is not wider than that under sections 496, 497 and A 498 of the Cr.P.C. However, the principles contained therein will have to be borne in mind while granting or refusing bail. In this connection, reliance is placed on the judgments in the cases of Bahar Khan v. The State (1969 SCMR 81), Maqsood v. Ali Muhammad and another (1971 SCMR 657) and Bashir Ahmad v. Zulfiqar and another (PLD 1992 SC 463).

5. The NAB Ordinance contains a bar to grant of bail and suspension of sentence under section 9(b) of the Ordinance which reads as under:‑‑‑ "All offences under this Ordinance shall be non‑bailable and notwithstanding anything contained in sections 426, 491, 497, 498 and 561‑A or any other provision of the Code, or any other law for the time being in force no Court (xxxx) shall have jurisdiction to grant bail to any person accused of any offence under this Order." Originally, the words "including the High Court" had occurred after the words "no Court." This provision of law in its un amended form, came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of Mrs. Shahida Faisal and others v. Federation of Pakistan and others (2001 SCMR 294), and it was ruled as under:‑-- "From the bare reading of this section, it is manifest that the Courts other than the Supreme Court' are covered under the said section, for it has been expressly mentioned in this section that the Courts including the High Court shall have no jurisdiction to grant bail:" It was further held as under:‑‑ "The omission of the words "Supreme Court" is significant, therefore, the jurisdiction of this Court under this section is not barred to grant bail to such persons." A similar view was expressed by the Hon'ble Supreme Court of Pakistan in the case of Anwar Saifullah Khan v. The State and 3 others (2000 SCMR 1040). It was held that the jurisdiction of the Supreme Court to grant bail to an accused was not ousted by section 9(b) of the NAB Ordinance, 1999.

6. Subsequently section 9(b) of the Ordinance was amended through amending Ordinance No.XXXV of 2001 published on 10‑8‑2001 and the words "including the High Court" were omitted thereform. This conscious omission of the words "including the High Court" made the intention of the law makers clear that henceforth the ouster clause would not affect the jurisdiction of the High Court. This interpretation is in accord with the rule enunicated in the case of Mrs. Shahida Faisal, in which omission of the words "Supreme Court" from section 9(b) was construed to mean that jurisdiction of the Supreme Court was not barred to grant bail. The case of Mrs. Shahida Faisal, was decided by the Supreme Court of Pakistan on 10‑7‑2000 and that of Anwar Saifullah Khan, on 2I‑2‑2001. much before the introduction of Ordinance No. XXXV of 2001 which, as mentioned above, was enforced on 10‑8‑2001. The view expressed therein relates to interpretation of section 9(b) of the Ordinance as it stood prior to its amendment. In the amended form, section 9(b) of the Ordinance merely excludes the jurisdiction of the Accountability Courts because the word "Court" occurring therein is defined under section 5(g) of the Ordinance, which means an Accountability Court and not any other Court. We are fortified in our view by the judgment of the Hon'ble Supreme Court of Pakistan in the case of Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546) in which it was held, "As far as the contention of the learned counsel for the respondent that no Court has jurisdiction to grant bail in NAB cases, the same has no substance as the word 'Court' has been defined in section 5(g) of the Ordinance which means the Accountability Court, as such, only the jurisdiction of Accountability Court has been ousted from granting bail to the accused. " The Supreme Court made, a reference to its earlier judgment in the case of Anwar Saifullah. Khan in which the un‑amended section 9 (b) had come up for consideration and it was held, "In the above provision of law, the words ' no Court', before the words including the High Court' indicate that earlier mentioned Court is a Court subordinate to the High Court..." After the amendment as mentioned above, the jurisdiction of High Court to grant bail under sections 497, 498 and 426 of the Cr.P.C. remains intact. At the same time in a Constitutional petition filed by a person to challenge registration of a criminal case, his detention or arrest or intended arrest or making of a reference against him under the NAB Ordinance, a High Court has jurisdiction to grant him any appropriate interim relief including grant of bail in exercise of jurisdiction under Article 199 of the Constitution of Pakistan. As the ouster clause is limited to an Accountability Court as defined under section 5(g) of the Ordinance, there seems no justification to retain sections 426 and 561‑A of the Cr.P.C. therein as both the sections pertain to an appellant Court and High Court respectively. It is for the law makers to consider this aspect of the matter and amend the law suitably so as to make it harmonious.

7. Even if it is admitted for the sake of arguments that section 426 of the Cr.P.C. is not available to this Court, being an appellate Court competent to allow the relief prayed for in the appeal, it possesses inherent jurisdiction to grant interim relief in the shape of suspension of sentence and grant of bail to secure the ends of justice.

8. The petitioner had attached two medical reports, alongwith his application for suspension of sentence. The first report No.414 of 2001, dated 20‑10‑2001 was made by the Medical Officer, New Central Jail, Bahawalpur. Its relevant part is reproduced below for ready reference: "So, in this consideration he is patient of Hypertensive Heart disease, Angina Diabetes Mellitus, retinopathy. He is under treatment in ,jail hospital according to advice of SMB, Cardiologist/Medical Specialist B.V.H. Bahawalpur, but in spite of taking drugs for Hypertension Angina and high doses of Insulin, these diseases, Hypertension DM are not controlled. Thus, he needs repeated investigation mentioned above and treated under the supervision of Cardiologist and Medical Specialist, which is only possible at B.V.H. Bahawalpur continuous stress and strain are aggravating factors of these diseases. If not controlled, can lead to serious/life threatening complica tion. " Thereafter the petitioner was shifted to B.V.H, Bahawalpur and was examined by the Standing Medical Board on 7‑11‑2001 and again on 8‑11‑2001. The opinion of the Board is as under:‑‑‑ "A case of uncontrolled diabetes and Hypertension. His BP is 190/110. His S. Sugar‑R is

326. His creatinine is 1.8. He may be admitted in B. V. Hospital, Bahawalpur for control of Diabetes and Hypertension." Recently, he was examined by the Standing Medical Board on 13‑6‑2002. Its opinion is as under: "He is a case of brittle, poorly controlled diabetes with complications. He has got Hypertension, nephropathy and Retinopathy and Neuropathy. His ECG shows non‑specific changes. He is also very tense, which makes his diabetes brittle. Needs constant medical treatment and supervision."

9. The above‑referred reports consistently show that the petitioner is a patient of uncontrolled diabetes and hypertension with complications. He needs constant medical treatment and supervision. Needless to mention that disceases like hypertension and diabetes are aggravated when a patient is constantly in a state of anxiety and tension. It is true that he is getting treatment in B. V. Hospital, Bahawalpur but if he is allowed bail, he will be in a better state of mind and would be releived of the constant worry and anxiety of being in confinement. He will be free to get treatment from a hospital or a physician of his choice. Law of bail leans in favour of an under‑trial prisoner or a convict and does not intend to keep him in confinement, if he is a sick or infirm person. That is why Courts are given power and discretion to allow bail to a sick and an infirm person without quantifying his ailment or holding that it is a serious nature and likely to cause death. The learned law officer who appeared for NAB admitted the correctness of the medical reports. These reports leave no manner of doubt that the petitioner is genuinely a sick person whose f condition is deteriorating and who needs constant medical treatment and supervision. In the case of Ch. Zulfiqar Ali, bail was allowed by the Hon'ble Supreme Court on the consideration that there was sufficient documentary evidence to show that the petitioner was suffering from different diseases as he remained under Specialists' treatment in various hospitals from time to time. It was observed that heart disease coupled with unstable hypertension, might endanger his life in jail.

10. For the foregoing reasons, the petition is accepted, the petitioner's sentence of imprisonment and fine is suspended and he is allowed bail, subject to his furnishing bail gonds in the sum of Rs.5 millions (Rupees fifty lacs) with two sureties each in the like amount to the satisfaction of the D.R. (Judl.) of this Court. N.H.Q./F‑121/L Sentence suspended.