P L D 1998 Karachi 148 (PLP)

SAIYED SAEED ASHHAD, J.‑‑This bail application has been filed on behalf of accused Dr. Usman Farooqui, who is facing trial in this Court for offences involving corruption and corrupt practices as defined under section 3 and punishable under section 4 of the Ehtesab Ordinance. The brief facts of the case are that F.I.A. had initiated an enquiry against accused Dr. Usman Farooqui, Ex‑Chairman, Pakistan Steel Mills Corporation Limited and the investigation conducted by the F.I.A. revealed investment of a huge amount of Rs.3,95,00,000 by accused Dr. Usman Farooqui in the National Savings Schemes Certificates in the names of his wife and daughter namely, accused Anisa Farooqui and Shermila Farooqui. During the course of investigation the Investigating Agency has also got hold of his wealth declaration statement for the year ending 30th June, 1987, wherein he had disclosed total securities/shares/saving certificates of Rs.1,50,000 for self and his wife accused Anisa Farooqui whereas in the wealth declaration for the year ending 30‑6‑1996 the amount invested in the above securities/shares/saving certificates and deposits had swelled to Rs.47,24,

618. The wealth of accused Usman Farooqui, co‑accused Anisa Faarooqui and Shermila Farooqui further and out of all proportions jumped to Rs.3,95,00,000 within the period of next six months. The investigation conducted by Inspector Jalal Khan of F.I.A., State Bank Circle, Karachi, revealed that accused Usman Farooqui, Ex‑Acting Chairman of Pakistan Steel Mills Corporation, had purchased the Special Savings Certificates from the amount misappropriated and illegally earned by him by abuse of his office and mis‑use of his powers. In turn the same was handed over to co‑accused Anisa Farooqui and Shermila Farooqui and/or was utilised for the benefit of co‑accused Anisa Farooqui and Shermila Farooqui as is evident from the purchase of Special Savings Certificates in their names. The case was referred to the Chief Ehtesab Commissioner's Secretariat, Islamabad, from where the learned Chief Ehtesab Commissioner vide his order dated 11‑3‑1997 referred the case to this Court under section 14(1) of the Ehtesab Ordinance for trial of all the said three accused in accordance with the provisions of the Ehtesab Ordinance.

2. Mr. A.Q. Halepota alongwith Mr. Khursheed A. Hashmi appeared on behalf of all the three accused and advanced arguments on the bail application, moved on behalf of accused Usman Farooqui. At the very outset he stated that the above bail application on behalf of the accused Usman Farooqui was being pressed solely on the ground of his severe illness and the fact that his detention in jail would be detrimental to his life. For the time being other grounds raised in the bail application were not pressed.

3. We have heard the arguments of Mr. A.Q. Halepota and Mr. Raja Sardar Khan, learned Special Prosecutor and have also perused the various medical reports, pertaining to accused Usman Farooqui as well as the case‑law relied upon by Mr. A.Q. Halepota in support of his arguments. Mr. A.Q. Halepota submitted that accused Usman Farooqui has been suffering from serious and severe heart problems for a very long time and the same have aggravated out of all proportion on account of his victimisation, as a result of which he had to rush to have an immediate angiography which revealed that all the three major arteries, supplying blood to his heart, were severely blocked and for which he was advised bypass surgery. Such was undertaken at the Liaquat National Hospital on 23‑3‑1997. Mr. A.Q. Halepota also drew our attention to a photostat copy of the report, of the Medical Board consisting of Professor Aziz Jamal Naqvi, Professor of NICVD, Dr. Khan Shah Zaman, Associate Professor of NICVD and Dr. Zia Yaqoob, Associate Professor of NICVD, who expressed the view that the nature of disease of accused Dr. Usman Farooqui was such that his stay in prison would be detrimental to his life. Mr. A.Q. Halepota further submitted that after undergoing bypass graft surgery accused Usman Farooqui developed certain complications and problems of a very serious nature and drew our attention to the report dated 19‑4‑1997 of the Medical Board consisting of Professor I.H. Bhatti, Professor Mushtaq Hasan and Professor AT Naqvi, according to which he had developed infection in the wound, had not fully recovered and his detention in jail would be detrimental to his life as there was no possibility of getting the requisite and satisfactory treatment in jail. It was suggested that he should not be removed to jail for at least another two weeks from the date of the above report. Mr. A.Q. Halepota finally submitted that the above medical reports, relating to the health of accused Usman Farooqui were sufficient to establish that he was suffering from acute and serious illness or disease which could endanger his life if he was to be detained in jail and submitted that in view of the above a case had been made out for enlarging the accused on bail. Mr. A.Q. Halepota in support of his contention has placed reliance on the following cases:‑‑ (1) Sadiq Ali Shah v. Khalid Umar and others 1982 SCMR 975 (2) Haji Mir Aftab v. The State 1979 SCMR 320. (3) Banaras v. The State 1978 SCMR 191. (4) Misal Muhammad v. The State 1986 SCMR 847. (5) Ismail Shaikh v. The State 1993 SCMR 1460; and (6) Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58.

4. We have gone through the aforesaid referred cases and we are in respectful agreement with the observations made and views expressed by the Hon'ble Supreme Court in the aforesaid referred cases. However, it seems to us that the above observations and views do not have any application to the facts and circumstances of this case. One of the distinguishing and distinctive feature of this case has been that accused Usman Farooqui in spite of being in detention and custody had throughout been provided every assistance and opportunity of having the facility of medical attendance and treatment by the doctors of his choice as well as in the Hospital/Institute of his choice, and further he is being attended to and looked after by his family members. Mr. Sardar Khan, the. learned Special Prosecutor, submitted that wherever, there had been any aggravation or severity of his disease/sickness, he had continuously been provided with immediate attention and treatment, including admission in the Intensive Coronary Care Unit and he was allowed to stay in such unit until he had recovered and his condition had established. He further submitted that accused Usman Farooqui had undergone heart bypass surgery though NBW for his arrest and detention had been issued by the Chief Ehtesab Commission yet he was allowed to be admitted in Liaquat National Hospital and even at present he is staying in the said hospital, which has been declared as sub jail. In view of the above facts and circumstances. It can thus be said that the best possible facilities available are available, which were not available to the accused persons in the cited cases relied upon by Mr. A.Q. Halepota. We are therefore, of the opinion that the decisions in the above referred cases are distinguishable, being of no help to the accused in seeking bail.

5. It may here be pointed out that on 15-5-1997 we had ourselves constituted a Medical Board consisting of seven top medical practitioners and specialists in the field of cardiovascular diseases for examination 'of the accused and report with particular emphasis as to whether detention of the accused in jail would be detrimental to his life. In pursuance of the above order accused Usman Farooqui was examined by four Doctors namely, Rear Admiral (Retd.) Shaukat Syed, Dr. Surgeon M. Rehman, Dr. Abdul Haq and Dr. Azher Masood A. Farooqui, on 19-5-1997 and it will be appropriate to reproduce the relevant portion of the said report, as under:- "Mr. M. Usman Farooqui admitted to Liaquat National Hospital on 18th March, 1997 for CABG Surgery on 23rd March, 1997, post operatively developed sternal wound infection with culture showing klebsiella pneumonae. However, post-operatively his temperature and blood pressure was in the normal range. The Board examined Mr. Usman Farooqui on 19th May, 1997 at 11-30 a.m. in the CCU-I, Room

100. His major complaint was dizziness and pain in the ribs. His B.P. was 180/100 with clear lungs. His sternal wound showed 3 small wounds with good granulation tissues. His leg wound is healed. He is on antibiotics, pain medication, BP medication and daily dressing of wound. The Medical Board is of the opinion that while his surgery itself appears to be successful, the patient because of his wound infection is not fully rehabilitated, has lost weight and appetite and is in need of continued medical supervision with facilities to provide him rehabilitation. with particular permission to walk 20-30 minutes on daily basis As far as attending Court proceedings is concerned the patient can be allowed to attend Court proceedings for a period not more than 2-3 hours at a time. As to the question of shifting him to jail it is recommended] that the wound be allowed to heal first." 6. a Pursuant to our further directions accused Usman Farooqui was again examined by two members of the above medical team i.c. Professor Mushtaq Hasan and Dr. Ataur Rahman, who vide their report dated 7-6-1997 opined thai the recommendations by the Medical Board to their report dated 19-5-1997 would still apply as there was no reason to change the opinion recorded therein. The opinion expressed in the report dated 19-5-1997 is very clear and self explanatory. The heart surgery has been successful but the accused is not yet fully rehabilitated on account of infection in his wounds. According to the same report, even presence of accused Usman Farooqui in Court cannot be dispensed' with on account of his illness/ sickness as his state of health is such that he can be) allowed to attend the Court proceedings for a period of 2 to 3 hours at a time.

7. The accused, it may be mention here, on both occasions was examined in the CCU-1 Room No. 100 of Liaquat National Hospital, which clearly establishes that the directions issued by us, that he should be taken to hospital and got admitted there if there is any sign or indication of aggravation of his illness or any problem is detected pertaining to his post-operation care or any other ailment, is being adhered to by the Investigating Agency and prison Authorities. Thus even while in custody he is getting the best possible medical facilities and treatment, which any patient, suffering from such an ailment, from which accused Usman Farooqui is suffering, is likely to get in this country.

8. These considerations apart, we are also not inclined to grant bail to accused Usman Farooqui on the ground that there is every possibility of his running away from the country or making himself unavailable by going into hiding either in some part of this country or in another country. In this connection we would like to make a reference to the case of Syed Abdullah Shah, Ex-Chief Minister; Sindh, referred by the Chief Ehtesab Commissioner to this Court, against whom non-bailable warrant was issued but the same could not be executed against him as he was said to be suffering from a very serious and acute sickness on account of a dreadful disease, and subsequently it was revealed that in spite of having been allegedly suffering from such acute and severe sickness he made good his escape from the country. Possibility of a repeat performance of the above act of Syed Abdullah Shah by accused Usman Farooqui cannot altogether be ruled out, moreso, when it had been brought to our notice by Mr. Bashir Ahmad Siddiqui, Special Prosecutor in Ehtesab References Nos. 24, 25, 26 and 27 of 1997 that a well organised and planned illegal launch service/operation is being conducted by several parties for the purpose of taking out of Pakistan persons illegally, pointing out that several important personalities, who otherwise could not have succeeded in leaving the country through legal and normal exit points and routes, on account of their names appearing in the Exit Control List, had managed to escape from Pakistan because of the above clandestine launch service/operation. Mr. Bashir Ahmed Siddiqui had made special mention of the above facts in the written arguments, submitted by him, whereby he had opposed the bail applications filed on behalf of the accused in the cited four References and it may be appropriate to reproduce the relevant portion from his written arguments, which is as under:- "It is further mentioned that instances of absconding from country have . taken place recently, namely, Syed Abdullah Shah, Nayar Bari, Dr. Zulfiqar Mirza. Even in the present case accused No.4 Jahangir Ansari has absconded and is reported to have gone for Haj from where he is planning to go to U.K. to seek asylum. The possibility of the present accused who are highly connected and .having very powerful political associations and have lot.of financial resources may abscond and seeks political asylum abroad. Specially when illegal launches ply from Marine Club in Defence Society to Dubai and it is reported that a number of wanted officers and politicians have used these means to abscond." Another ground which has weighed with us in not allowing bail to accused Usman Farooqui is the possibility of his tampering with the evidence available against him. Though, the case against accused Usman Farooqui and co- accused Anisa Farooqui and Shermila Farooqui is supported basically by documentary and circumstantial evidence, yet the fact remains that such documentary evidence will be required to be produced in Court through the witnesses, who in addition to the production of the relevant documents will also depose verbally regarding his participation and indulgence in acts of omission and commission, corruption and corrupt practices, misappropriating and embezzling huge amounts of moneys with mala fide intentions for himself and his family members, which ultimately appear to have been invested in the above Government Securities, and if he is enlarged on bail he may succeed in winning over the prosecution witnesses either by pressurizing or influencing them or by purchasing them with the enormous resources available at his disposal.

9. Upon the above discussion we find that no case is made out for enlarging accused Usman Farooqui on bail and his bail application stands dismissed. M.A. No.22 of 1997:

10. By this application accused Anisa Farooqui and Shermila Farooqui have requested for reduction of the amounts of bonds to be executed by the two sureties, which each one of them had been directed to furnish on her behalf. Both Anisa Farooqui and Shermila Farooqui had appeared before this Court for the first time on 2-4-1997 in pursuance of the notices issued by the Court and each one of them was directed to execute a personal bond in the sum of Rs.15 million and two surety bonds, each in the sum of Rs.5 million. On 3-4-1997 an application was moved on their behalf praying for extension of time by two weeks for production of the sureties which was allowed and time for execution of surety bonds was extended by two weeks. On 15-4-1997, at the request of the learned counsel for the above two accused ladies the period for execution/furnishing of sureties was further extended till 30-4-1997. Subsequently on 30-4-1997 abovementioned Miscellaneous Application was filed for reduction. of the amount of sureties to he furnished by accused Anisa Farooqui and Shermila Farooqui. Arguments of Mr. Raja Sardar Khan, learned Special Prosecutor as well as Mr. A.Q. Halepota, learned counsel for accused Anisa Farooqui and Shermiat Farooqui were heard. Mr. Raja Sardar Khan prayed for the reduction of the amount of surety bonds to be executed by the aforesaid two alleged accused. He further submitted that both the accused Anisa Farooqui and Shermila Farooqui, should be ordered to be arrested by the concerned prosecution agency and should. be remanded to judicial custody inasmuch as the offence for which they have been sent up for trial to this Court is a non-bailable offence in view of the provisions of subsection (2) of section 3 of the Ehtesab Ordinance, which specifically makes all offences under the Ehtesab Ordinance to be non-bailable, and Schedule II (Tabular Statement of Offences) to the Code of Criminal Procedure provides an offence punishable for imprisonment for three years and upwards but not exceeding seven years to be a non-bailable offence as per column 5 of Schedule II and furthermore as per column 4 a warrant of arrest is to be issued for procuring the attendance of an accused person tried for such an offence. Mr. A.Q. Halepota in relation to the above argument, advanced by the learned Special Prosecutor, submitted that the power of arrest of an accused person under the Ehtesab Ordinance vests solely with the Chief Ehtesab Commissioner and this Court cannot order the arrest of a person facing trial before it under the Ehtesab Ordinance and in support of his above contention he drew our attention to section 16(3) of the Ehtesab Ordinance. A bare perusal of subsection (3) of section 16 of the Ehtesab Ordinance is sufficient to repel the above argument of Mr. A.Q. Halepota, inasmuch as the arrest of accused as contemplated in subsection (3) of section 16 of the Ehtesab Ordinance is relative to the proceedings pending in the office of the Chief Ehtesab Commissioner after a case had been referred to him under section 14(2)(i) of the Ehtesab Ordinance. Once a case or reference is forwarded to the Court for trial of an accused person, there can be no limitation or bar placed on the powers of such Court to grant bail to any accused person, who has been produced in custody in pursuance of the warrant of arrest issued by the Chief Ehtesab Commissioner or remand an accused person to judicial custody who has appeared before the Court in pursuance of a notices/summons.

11. Our attention has been drawn to the provisions of section 3(4) of the Ehtesab Ordinance by Mr.A.Q. Halepota and he contended that amounts of surety bonds in such huge amounts as were required to be furnished on behalf of accused Anisa Farooqui and Shermila Farooqui could be asked for only from an accused person who' was a holder of a public office and had committed the offence of corruption and corrupt practices during the period for which he held a public office. Thus 'the provisions could not apply to public or private individuals/citizens and they could not be called upon to furnish such heavy sureties relating to the amount allegedly misappropriated or illegally earned not on account of any act attributable to them but of someone else. The amounts warranted to be considerably reduced. Mr. Raja Sardar Khan, the learned Special Prosecutor opposing the above contention submitted that the bail surety amounts would be required to be fixed having regard to the gravity of the offence committed by the accused and the provisions that the bail amount should not be less than twice the amount misappropriated or unlawfully earned by the accused. Here, we would like to state that the arguments of the learned Special Prosecutor would be applicable only to an accused, who was holder of a Public Office and not to private or ordinary individuals and that the amounts of surety bonds fixed in respect of accused Anisa Farooqui and Shermila Farooqui had been fixed after taking into consideration the provisions of section 3(4) of the Ordinance which specifically deal with the holder of a Public Office and it is for this reason that we had called upon the above two accused to furnish two sureties each in the sum of Rupees 15 million as against the illegal earnings and misappropriation of Rs.39.5 millions. We are, therefore, unable to agree with the contention of Mr. A.Q. Halepota that the amounts of surety bonds which were fixed at Rs.15 million each with two sureties in respect of accused Anisa Farooqui and Shermila Farooqui were either excessive or contrary to the provisions of the Ehtesab Ordinance.

12. With regard to the contention that accused Anisa Farooqui and Shermila Farooqui cannot be tried under the above Ehtesab Ordinance as they do not come within the definition of holder of Public Office, it is to be observed that subsection (2) of section 4 provides that any person giving illegal gratification or abetting, assisting aiding a holder of a public office or benefitting and gaining through corruption or corrupt practices shall be liable to the same punishment as is to be awarded to a holder of public office Both accused Anisa Farooqui and Shermila Farooqut, from the material on record, would prima facie, he deemed to have instigated, and aided main accused Usman Farooqui in indulging in corruption and corrupt practices for fulfilment of their illegal and unlawful demands and desire for enormous wealth and consequently made illegal benefits and gains for themselves, `therefore, the contention of Mr A.Q. Halepota with regard to the validity of the prosecution case against Anisa Farooqui and Shermila Farooqiii does not have any force and we hold that both accused Anisa Farooqui and Shermila Farooqui have been rightly indicted before us to face trial alongwith main accused Usman Farooqui

13. Coming to the contention of Mr. Raja Sardar Khan for issuing nonbailable warrants of arrest of both the abovenamed accused and remanding them to judicial custody, it is to be observed that in accordance with the provisions of columns 4 and 5 of Table 2 to the Code of Criminal Procedure, ordinarily nonbailable warrants of arrest would be required to be issued for procuring the attendance of Anisa Farooqui and Shermila Farooqui in view of the general practice followed during the course of the Sessions trials to the effect that nonbailable warrants are issued to an accused person who is facing trial for an offence which is non-bailable, but the attendance of accused Antsa Farooqui and Shermila Farooqui was procured by way of summons/notices. However, on their appearance in Court they were directed to exec te personal bonds and two surer bonds each in view of the provisions of section 91, Cr.P.C. We are in agreement with Mr. Raja Sardar Khan that warrants of arrest should have been ordered to be issued for summoning accused Anisa Farooqui and Shermila Farooqui in Court but since at the relevant time we had normally been issuing summons/notices to those accused persons, whose warrants of arrest were not issued by the Chief Ehtesab Commissioner, for procuring their attendance in Court, as such we directed issuance of notices/summons for summoning accused Anisa Farooqui and Shermila Farooqui instead of directing issuance of warrant of arrest. However, in order to comply with the requirements of law relating to summoning and procuring the attendance of accused persons in Court and to lay down a uniform policy relating to summoning and procuring the attendance of the accused persons in Court, we order issuance of bailable warrants of arrest of accused Anisa Farooqui and Shermila Farooqui. They shall not be arrested if each one of them furnishes two sureties in the sum of Rs.20 million each and P.R. Bonds in like amounts to the satisfaction of the Nazir of this Court. Such sureties are to be furnished within two weeks.

14. This procedure of issuance of warrants in relation to accused whose warrants of arrest, initially, were not ordered by the learned Ehtesab Commissioner, shall now onwards be followed in Ehtesab Cases. Where, however, the Court, to start with issued summons or notices the procedure may be regularised in the foregoing terms.

15. Mr. A.Q. Halepota. learned counsel for accused Anisa Farooqui and Shermila Farooqui, has drawn our attention to the order of the hon'ble Supreme Court dated 9-4-1997 in Criminal Petition No.33 of 1997 (M/s. Ziarate through its Partners v. The State and another), wherein their lordships of the Supreme Court expressed the view that fixation of the amount of surety/bail bond in the sum of Rs.5 milion of holder of public office and Rs.20 million for private individuals/beneficiaries did not appear to be proper and consistent. Their lordships desired that in the light of above observation, the application filed by the petitioners before the Ehtesab Court/Tribunal for modification of the bail bonds 'be considered as pending requiring decision afresh after hearing the necessary parties. Mr. A.Q. Halepota submitted that the amount of the surety bonds required from accused Anisa Farooqui and Shermfa Farooqui were to be fixed in accordance with the views expressed by their lordships of the Supreme Court in the above-referred order. We have gone through the said order of the hon'ble Supreme Court. The order had emanated from art Ehtesab Reference wherein a loss of Rs.80 million was caused to the State Exchequer and the amount of bail/surety bonds was fixed at Rs.0.5 million for holder of public office and Rs.20 million for private individuals/beneficiaries, which the Hon'ble Supreme Court found to be inconsistent with the provisions of the Ehtesab Ordinance relating to furnishing of surety/bail bonds. Accused Anisa Farooqui and Shermila Farooqui are beneficiaries and have been required to furnish bail bonds in respect of the amount misappropriated/embezzled by accused Usman Farooqui on the instigation and assistance by the above two lady accused which is around Rs.40 million. Fixation of the amount of surety bonds at Rs.20 million for each of the above two accused, which when required to be fixed for Usman Farooqui would be Rs.80 million, would not, in the circumstances, appear to be excessive or inconsistent either with the provisions of the Ehtesab Ordinance or with the observations of the hon'ble Supreme Court in the above-referred order.

16. Before concluding, we may observe that we have ordered issuance of bailable warrants of arrest of accused Anisa Farooqui and Shermila Farooqui purely on their being ladies, one of them studying in college while the other is her mother and wife of accused Usman Farooqui, who is required to look after her ailing husband.

17. Both the above applications stand disposed of in terms of the above discussions and observations. A.A./S-109/K Order accordingly.