2006 PLP 1225 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment dated 11-10-2005 whereby the constitutional petition seeking suspension of conviction and sentence awarded by means of order dated 4-6-2005 by the Judge, Accountability Court No.II, Rawalpindi/Islamabad whereby the petitioner was convicted under section 9 of the National Accountability Ordinance, 1999 and sentenced to undergo R.I. for a period of four years and fine of rupees ten lacs and in case of default to further undergo R.I. for one year with benefit of section 382-B, Cr.P.C., has been rejected.

2. Sardar Muhammad Ishaq Khan, learned senior Advocate Supreme Court entered appearance on behalf of petitioner and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective and besides that the provisions as contained in section 426, Cr.P.C. have been misconstrued and misinterpreted. It is also argued that no reasoning whatsoever has been assigned by the learned High Court while rejecting the petition. It is urged with vehemence that the petitioner was arrested on 21-6-2003 and since then he is in jail while a major portion of sentence has already been exhausted as benefit enumerated in section 382-B, Cr.P.C. was awarded to the petitioner and as such there will be no legal justification to keep him behind the bars. It is also pointed out that in view of the heavy backlog in the learned High Court, Rawalpindi Bench, Rawalpindi there is no possibility and likelihood of expeditious disposal of the appeal preferred on behalf of the petitioner. It is also urged that the factum of ailment has not been taken into consideration and the medical opinion to substantiate the factum of ailment has not been examined with care and caution.

3. Mr. Naveed Saeed, learned Deputy Prosecutor-General has appeared on behalf of NAB and strenuously controverted the viewpoint as canvassed at bar on behalf of petitioner with the submission that the discretion as exercised by the learned High Court cannot be reversed without any lawful justification which is badly. lacking in this case. It is pointed out that the petitioner has also been convicted in Reference No.85 of 2003. It is argued that the petitioner is not suffering from any serious disease as there is no apprehension to his life and treatment can be made available in D.H.Q. Hospital, Mianwali. It is further argued that the learned High Court may be directed to dispose of the appeal expeditiously.

4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. There is no denying the fact that the petitioner has undergone a substantive portion of sentence and the medical certificates are indicative of the ailment which appears to be somewhat serious. In this regard the medical opinion furnished by Dr. Tariq Niazi can be referred who had recommended shifting of petitioner to some care health facility where a team of diabetologist, neuro-physician and cardiologist are available. The above Specialists are not available in D.H.Q. Hospital, Mianwali. It is also not disputed that during the recent past the petitioner was hospitalized and remained under treatment in the Department of Urology. We have no hesitation in our mind to hold that requisite medical facilities, modern techniques, up to date operation skill and know-how are not available in the D.H.Q. Hospital, Mianwali which aspect of the matter has been ignored by the learned High Court. We are conscious of the fact that the grant of bail and suspension of sentence is a discretionary matter but such discretion should have been exercised in accordance with the substantive provisions of law and the principles settled by this Court. The suspension of sentence may be refused but in such an eventuality it would be mandatory for the learned High Court to assign reasoning which could not be done by disposing of the constitutional petition preferred on behalf of petitioner and therefore, the order impugned cannot be equated to that of `firm' or `well-reasoned' order. In this regard we are fortified for the dictum laid down in the following authorities:-- Muhammad Din v. State 1986 SCMR 1970; Muhammad Yaqoob v. State 1991 SCMR 1459; Altai. Hussain Shah v. State 1994 SCMR 480; Barkat Hussain v. State 1995 SCMR 1109; Criminal Petitions Nos.38-4-L of 1993, 84-L of 1995, Criminal Petition No.172-L of 1995, Zulfiqar Muhammad Tufail v. State 1981 SCMR 727; Manzoor Hussain v. State 1982 SCMR 357; Abdur Rashid v. State 1988 SCMR 149 and Muhammad Akram v. State 1994 SCMR 277.

5. As mentioned hereinabove the learned High Court has not assigned any reasoning and therefore, the order cannot be termed as `speaking one and is also not in consonance with the law laid down by this Court in the above-mentioned authorities. While dealing with a similar proposition it was observed by this Court in case of Muhammad Ashiq v. State 1996 SCMR 1559 as under:-- "

8. In the instant case the High Court indeed has not given any reason. The order thus, suffers from infirmity. It cannot be sustained. The ratio enunciated in case Criminal Petition No.172-L of 1995 dated 7-6-1995 by this Court covers the case of the petitioners which entitles them to concession of bail."

6. We are conscious of the fact that in heinous offence where sentence of life imprisonment or 14 years R.I. has been awarded the question of suspension of sentence does not arise subject to certain exceptions but it must not be lost sight of that in proper case even the bail can be granted where the sentence of death or life imprisonment has been awarded. If any reference is needed the following authorities can be referred:-- The State v. Shehswar 1969 SCMR 151; Bahar Khan v. The State 1969 SCMR 81; Abdullah Khan v. Karamdad Khan 1968 SCMR 1064; Maqsood v. Ali Muhammad 1971 SCMR 657; Abdul Ghafoor v. Anwarul Hassan 1978 SCMR 149; Faqir Muhammad v. Akbar 1979 SCMR 270; Haji Mir Aftab v. The State 1979 SCMR 320; Muhammad Ashraf v. State 1971 SCMR 183; Noor Abdullah v. State 1981 SCMR 859; Jamshed Azam v. State 1990 SCMR 1393; Khalid Saigol v. State PLD 1962 SC 495; Abdur Rashid v. The State 1988 SCMR 149; Muhammad Khurshid v. Wazirzada 1986 SCMR 181 and Nawab Khan v. State 1987 SCMR 274.

7. It is also to be kept in view that this Court being at the apex has constitutional duty to impart complete justice and therefore, it cannot be inhibited by any restrain or restriction and has abiding duty to consider all the pros and cons of the matter and to take an overall view of the case while dispensing justice. It may not be out of place to mention here that pursuant to the provisions as contained in section 497(1), Cr.P.C. "a? sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment. It is now well-settled that where a statute itself lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court". Maqsood v. Ali Muhammad 1972 SCMR

657. It is well-entrenched legal proposition that powers conferred upon section 426, Cr.P.C. are not controlled by the provisions of sections 496 and 497, Cr.P.C. but the principles enunciated therein can be taken into consideration while granting or refusing bail. If any authority is required reference can be made to Bashir Ahmad v. Zulfiqar PLD 1992 SC 463.

8. Keeping in view the nature of ailment, medical opinion furnished by Dr. Tariq Niazi, non-availability of necessary facilities in D.H.Q. Hospital, Mianwali, expiry of substantive portion of the awarded sentence, we are inclined to convert this petition into appeal which is accepted. These are the reasons for our short order, dated 13-3-2006 which is reproduced hereinbelow for ready reference: "For the reasons to be recorded separately, this petition is converted into appeal and accepted. The judgment impugned is set aside and the appellant is directed to be released on bail on furnishing surety in the sum of Rs.20,00,000 (Rupees twenty lacs only) and P.R. of the same amount to the satisfaction of the Registrar of this Court. The appellant shall surrender his Passport in the office of the Registrar of this Court and his name shall be placed in exit list till disposal of his appeal pending before the High Court." M.B.A./M-82/SC??????????????????????????????????????????????????????????????????????????????????????????? Bail granted.