1988 P Cr (PLP)

Dr. Azhar Farooqi and I have reviewed his case and are in agreement with the opinion of his Physician Dr.Stephen M. Beger from Ohio, U.S.A. (Copy attached). He may either need percutaneous translumnial coronary angioplasty with the possibility of emergency coronary bypass surgery which is not being done by us routinely or coronary angiography may reveal lesions requiring collective coronary artery bypass grafting which is likely to be a difficult undertaking in view of the complicated nature of his disease. It is, therefore, recommended that he may proceed abroad for treatment as soon as possible. ??????????? Sd/? (Prof. M.A. Najeeb) Maj. Gen. ??????????? M.B.F.R.C.P. Executive Director." Bail application of Mumtaz Ali Bhutto is also pressed inter alia on the ground that he is a heart patient and his detention in jail is detrimental to his life. In March 1987 the Government had appointed a Medical Board to examine the applicant. The report of the Board dated 18‑3‑1987 is as follows:‑‑ "As per Order No. SOVI(H)9‑13/87, dated 16‑3‑1987 from Secretary to the Government of Sind, Health Department, Karachi, to examine Mr. Mumtaz Ali Bhutto, the Medical Board seas held in the Private Ward, Jinnah Postgraduate Medical Centre, Karachi, on 17‑3‑1987 at 11‑00 a.m. The following attended:‑?

(1) Prof. M. Sharif Choudhry, Prof. of Cardiology, DMC, Civil Hospital, Karachi.

Chairman (2) Prof. Mukhtiar Azim Mirza, Prof. of Medicine, DMC,????????? Civil' Hospital, Karachi.

Member (3) Dr. Sanaullah Qureshi, Medical Superintendent, Services Hospital and Civil Surgeon, Karachi.

Member/ Convener Mr. Mumtaz Ali Bhutto was examined by the Board today on 17‑3‑1987. Mr. Mumtaz Ali Bhutto' has been complaining of Central Chest pain frequently on exertion and he consumes 2‑3 sub‑linguil Isordil tablets every day curing his stay as a patient in National Institute of Cardiovascular Diseases, Karachi, he has been subjected twice for E.T.T. (1st on 16‑12‑1986 and then on 3‑2‑1987) one of those E.T.T. is strongly positive consistent with significant coronary artery disoable. Today on examination, he is in sinus rhythem and B.P: is 110/70 m.a. Hg. There are no cardic congestion signs. His resting E.C.G. shows old healed Anterior myocurdial infaction and a possible old healed inferior infaraction as well. In view of the symptomotolgy and a positive E.T.T., the 'members of the Board are of the opinion that he should be further investigated by coronary Angiography with a view to subsequent surgical treatment as dicted by such investigation preferably abroad." Besides this opthelmic report of Dr. G. V . Catford Consultant Opthalmologist dated 16‑12‑1985, Certificate of Dr. Leslie M. Eber dated 18‑11‑1986, Medical Report of National Institute of Cardiovascular Diseases, Karachi dated 20‑12‑1986, letter of Dr. Roeinton B. Khambatta dated 6‑2‑1987, letter of Dr. Zaki Hasan addressed to Executive Director NICVD dated 21‑2‑1987 and the discharge summary of NICVD dated 26‑2‑1987 have been produced to show the gravity of the ailment of applicant Mumtaz Ali Bhutto. The most alarming certificate is contained in the letter written by Dr. Zaki Hasan dated 21‑2‑1987 on a reference made to him by the Executive Director of NICVD which is as under:‑‑ "This situation is potentially dangerous to life as one does not know what levels of these substances may lead to a intra cerebral hemorrhage due to a rise in blood pressure. As you know there are no facilities for estimation of norepinephrine, he should either go abroad or at least remain under close medical supervision where his blood pressure can be frequently mentioned. These medical reports and certificates were neither controverted nor challenged by the prosecution. A perusal of these certificates would lead to the irreversible conclusion that the above‑named two applicants are sick and infirm to such an extent that their 'further detention in jail would be detrimental to their lives. Mr. Syed Sarfraz Ahmed Assistant Advocate‑General who appeared for the State has submitted that the mere fact that the above‑named two applicants were heart patients and sick and infirm to an extent that their further detention in jail was detrimental to their lives 4.s not enough to release them on bail because according to him section 5(6) of the Suppression of Terrorists Activities (Special Court) Act 1975 provides that: "An accused person shall not be released on bail by a Special Court or by any other Court if there appears reasonable ground for believing that he has been guilty of a scheduled offence ??????????? " The subsection according to the learned Assistant Advocate General imposes restriction on the powers of this Court in the matter of bail when there were reasonable grounds to believe that an accused has been guilty of a scheduled offence. He also referred to subsection (3) of section 7 of the said Act which provided that Chapter 39 of the Code of Criminal Procedure was to apply to the suspension, remission and commutation of the sentences passed by a Special Court and submitted that by necessary implication it excludes the provisions of Chapter 39 for other purposes including the grant of bail during the trial of the cases. He also referred to section 10 of the said Act which laid down that the provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law for the time being in force. He concluded that in view of the above provision of the Suppression of Terrorists Activities (Special Court) the application of the provisions of all other laws including section 497 were excluded and in the Act of 1975, the jurisdiction of a Special Court to grant bail to the accused against whom there were reasonable grounds to believe that they are guilty of a scheduled offence was barred. In this connection he placed reliance on the order of my learned brother Mr. Justice Mamoon Kazi in case No. S.H. 1 of 1987 of the Special Court of Sind where it was observed as follows:‑‑

"Therefore, at this stage it cannot be said that there are no reasonable grounds to believe that the applicants have committed the offences alleged against them. Even the last contention raised by Mr. Shaikh Mir Muhammad on behalf of applicant Mumtaz Ali Bhutto that he is a heart patient and as such entitled to bail cannot be considered in view of the provisions of section 5(6) of the Act as the provisions of section 497, Cr.P.C. are clearly subject to the provisions of the Act and the latter provide a clear bar against grant of bail to the accused in the circumstances referred to in section 5(6).

12. For the aforesaid reasons bail cannot be granted to the applicants and their bail application stand rejected." From the defence side submissions were made by applicant Abdul Hafeez Pirzada for himself and by M/s. Mir Muhammad Shaikh and M.I. Memon Advocates on behalf of the applicant Mumtaz Ali Bhutto. The contention of the applicants was that the provisions of Suppression Terrorists Activities (Special Courts) Act, 1975 generally and subsection (6) of section 5, subsection (3) of section 7 and section 10 thereof particularly do not exclude application of section 497, Cr.P.C. or for that matter Chapter XXXIX of Criminal Procedure Code to a trial conducted by this Court. While hearing a bail application a Special Court was bound by the provisions of section 497, Cr.P.C. and could grant bail to the sick and infirm persons in accordance with the first proviso to section 497, Cr.P.C. even if there were reasonable grounds to believe that the accused were guilty of a scheduled offence. A number of rulings were cited from the side of the applicants as well as by the learned A.A.‑G. who appeared for the prosecution which will be discussed by me hereafter. Reference was made to the case of Abdul Majeed v. Judge Special Court (Offences in Bank) reported in 1985 P Cr. L J

890. This case related to the question of bail of accused in as many as 11 cases who were being tried under the Offences in Respect of Banks (Special Court) Ordinance 1984 which contains provisions similar to the Suppression of Terrorists Activities (Special Courts) Act 1975. The similarity is so close that even the number of section 5(6) of the two statutes is same. A D.B. of Lahore High Court consisting of Gulbaz Khan and Gul Zareen Kiyani, JJ. held that all the provisions of section 497, Cr.P.C. were applicable to the cases before the Special Court and section 5(6) of the Ordinance is not a complete substitution of section 497(1), Cr.P.C. nor a complete Code for grant of bail to persons accused of the scheduled offences. In a ruling of our own Court in the case of Muhammad Moosa v. The State reported in 1986 P Cr. L J 578 a D.B. consisting of Abdul Qadeer Choudhry, J. (as he then was) and Mamoon Kazi, J. came to the conclusion that the High Court has inherent powers under section 498, Cr.P.C. to admit a person to bail keeping in view the merits of the case. It held that sections 497 and 498, Cr.P.C. have not been excluded in subsection (6) of section 5 of the Offences in Respect of Banks (Special Courts) Ordinance 1984. In the Thori Railway Crossing case reported in 1987 PCr.LJ 737 (Gul Muhammad v. The State) a D.B. of this Court in a case under Suppression of Terrorists Activities (Special Courts) Act, 1975 came to the conclusion that powers of High Court under section 497 , Cr.P.C. to grant bail to an under‑trial prisoner, facing trial before a Special Court constituted under the Act of 1975 remained unaffected and High Court could grant bail on any grounds available under section 497 , Cr. P . C . After giving a resume of the case‑law relevant to the point Nasir Aslam Zahid, J. held as follows:‑‑-- "(c) We may now deal with the objection raised by the learned Additional Advocate‑General that in any case bail can only be granted on merits to accused in cases being tried by Special Courts that is if there does not appear to be any reasonable ground for believing that the accused has been guilty of a Scheduled offence and not on the ground of delay. We are unable to accept this argument. It has already been held by this Court and in several judgments of the Lahore High Court referred to earlier that the powers of the High Court under section 497, Cr.P.C. remain unaffected by the provisions of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 and as the relevant provisions of the Ordinance, 1984 are identical to corresponding provisions in the Suppression of Terrorists Activities (Special Courts) Act, 1975, following the view taken by the Lahore High Court and by this Court, we may observe that the powers of the High Court under ???? section 497, Cr.P.C. to grant bail to an under‑trial prisoner facing trial before a Special Court constituted under the Act of 1975, remain unaffected and for any of the grounds available under section 497, Cr.P.C. the High Court can grant bail to such an under‑trial prisoner. In such cases, therefore, the High Court can grant bail to an under‑trial prisoner if his case attracts the third proviso to section 497(1). Cr.P.C." In the famous case of Zahur Ilahi v. The State reported in PLD 1977 S C 273 it was held that sections 497 and 498, Cr.P.C. occupy the position of a supplementary provision which confers, inter alia, upon the High Court independent or concurrent jurisdiction to grant bail. Reference is also made to the following observations in the judgment of Salahuddin, J. who was one of the Judges who shared the majority view: "Custody' is never meant to be a punishment. It is designed to facilitate investigation or trial by making the accused available for either whenever required for these purposes. In case of a grave offence, for example, one under section 302 of the Pakistan Penal Code which is punishable with death or life imprisonment, bail is ordinarily refused to prevent the likelihood of the accused absconding or skipping the bail. Therefore, except in case of a grave offence refusal to admit him to bail unreasonably may amount to punishment without trial. It will, indeed, result in keeping an accused in jail without trial for an indefinite period, if due to excessive number of cases awaiting trial before a single Special Tribunal of exclusive jurisdiction it is physically unable to quickly try or dispose of a case, and yet the accused is unreasonably refused bail although there is no likelihood of his absconding or skipping the bail. Keeping such a situation in mind, we must give a reasonable interpretation, consistent with the scheme of the Ordinance and justice, to the requirement of rule 210 of the Rules that no person accused or convicted of a contravention of the Rules etc. if in custody, be released on bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. The Ordinance and the Rules not only invested the Special Tribunal with exclusive jurisdiction to try contravention of the Rules but have also clothed it with powers to try a case quickly without avoidable loss of time. They further invest the Tribunal with powers to try the accused in his absence, and to refuse to adjourn a case. If, however due to the lack of foresight on the part of the Legislature or the authority concerned, the Scheme of the Ordinance and the Rules in regard to a vital part fails, the sanctity of the other part must of necessity be affected and what appeared to be rigid must give way to flexibility. " It was contended by Mr. Syed Sarfaraz Ahmed Assistant Advocate‑General that the Special. Court is a Court inferior to the High Court and, therefore, could not grant bail in exercise of inherent powers vested in the High Court under the provisions of sections 497 and 498, Cr.P.C. as has been held in the rulings referred to above. According to him a Special Court was to be guided exclusively by the provisions of section 5(6) of Suppression of Terrorists Activities (Special Courts) Act, 1975. In this connection he has relied upon P L D 1985 Lah. 48 Muhammad Yaqub Ali v. The State where a D.B. consisting of Ghulam Mujadid Mirza (as he then was) and Qurban Sadiq Ikram, JJ. held that Special Court even if presided by a sitting Judge of High Court would be inferior to High Court having appellate jurisdiction against judgments of Special Court. The contention of the learned Assistant Advocate‑Genera: does not appear to be sound. In this very ruling at page 56 it has been clearly held as follows:‑‑

"A Special Court can allow bail to an accused charged with a scheduled offence even if there are reasonable grounds to believe that he is guilty of the charged offence, inter alia, on grounds of old age, sickness or infirmity, delay in completion of the trial, if it is found to be a case of further inquiry, if there is no likelihood of tampering with the evidence by the accused or that the continued detention of the accused may hamper his defence. Thus, the conclusion of the learned Judge presiding the Special Court and the arguments of the learned counsel for the State that section 5(6) of the Ordinance imposes absolute bar on grant of bail cannot be accepted. A perusal of the relevant provisions would indicate that the Ordinance envisages the allowing of bail to an accused during the trial after giving notice to the State. Subsection (7) of section 5 provides for the amount of bail bonds and sureties, in case the accused is allowed bail. These provisions are indicative of the fact that section 5(6) is an enabling section placing no? bar on the powers of Court to allow bail under section 497, Cr.P.C." The attention of the learned Assistant Advocate‑General was drawn by the Court to the above observations made by the D.B. in the ruling referred by him. He tried to explain these observations by submitting that the same were obiter dicta and were therefore not to be treated as an authority. He relied upon A I R 1954 Hyd. 56, K. Jayarama Iyer v. The State of Hyderabad where a D.B. consisting of Deshpande and Jaganmohan Reddy, JJ. defined as to what was an obiter dictum. It was explained that an obiter dictum is an observation which is either not necessary for the decision of the case or does not relate to the material facts in issue. To say the least this ruling does not support the contention of the learned Assistant Advocate?-General. The point as to whether a Special Court had power to release an accused on bail on the ground of, inter alia, infirmity and sickness was not only a material fact in issue but was necessary for the decision of the case. The prosecution had urged to the Court to give a decision on the point and it cannot be said that it was not a material fact in issue. In this connection reference may be made to the following observations at page 54 of P L D 1985 Lah. 48. "The last point urged by the learned counsel for the State that the prohibition to allow bail under section 5(6) of the Ordinance is absolute, in our view, is also without any substance." Reference was also made to the case of Muhammad Gul v. The State reported in 1985 P Cr. L J

205. This is also a case under the Suppression of Terrorists Activities (Special Courts) Act 1975. In this case reference was made to Zahur Ilahi's case as well as certain other cases relating to the point and it was held that the High Court has independent or concurrent jurisdiction to grant bail under section 498, Cr.P.C. Reference was also made to the well‑known case of Mirza Javvad Beg v. The State reported in P L D 1975 Kar. 628 where it was held that provisions of section 7 of Suppression of Terrorists activities (Special Courts) Act 1975 had not taken away powers of the Division Bench of the High Court to grant bail to an appellant in an appropriate case even if power of a Division Bench under section 426, Cr.P.C. be considered to have been curtailed by section 7, the Division Bench as appellate authority automatically as it may in a fit case to grant interlocutory relief. The Division Bench consisting of Dorab Patel and Jamaluddin H. Ahmed, JJ. after tracing the history of the legislation on the subject overruled the legal objections as to the maintainability of the bail application and directed that the same should be decided on merits. Pakistan is an Islamic democratic State. Here it is inhuman and anamolous to contend that a person who is sick and infirm to such an extent that his further detention in jail is detrimental to his life, should not be released on bail in a case punishable with imprisonment for 10 years and fine or with imprisonment for life or three years and fine or imprisonment for seven years although such a person can be lawfully granted bail in an offence punishable with death, as the proviso to section 497(1), Cr.P.C. provides. Such an intention can never be imputed to the legislature when it enacted section 5(6) of the Suppression of Terrorists Activities (Special Courts) Act, 1975. In view of the above discussion I am of the clear view that section 5(6) of Suppression of Terrorists Activities (Special Courts) Act 1975 does not place an absolute bar against allowing bail to persons charged with the scheduled offences thereunder. By now it is a settled law that the grant of bail is rule and the bail is not withheld by way of punishment. It is pointed out that section 5(6) of the Suppression of Terrorists Activities (Special Courts) Act 1975 is an enabling section and it provides for allowing bail to an accused person by a Special Court. Neither this subsection nor any other provision of the Suppression of Terrorists Activities (Special Courts) Act 1975 indicates that the powers of a Court to grant bail to an accused person under section 497, Cr.P.C. have been taken away. Even in a case in which there are reasonable grounds to believe that the accused is guilty of a scheduled offence, a Special Court can allow bail to him on the ground of old age, sickness or infirmity. I, therefore, direct that the applicants Abdul Hafeez Pirzada and Mumtaz Ali Bhutto be released on bail on furnishing surety and P.R. bond in the sum of Rs.5,00,000 each in each of the above 4 cases to the satisfaction of the Registrar of the Special Court to enable them to get themselves treated of the above diseases. It was submitted by the learned A.A.‑G. that there was apprehension that the applicants after being released on bail would repeat similar offences in the country or even outside the country if they are permitted by the Central Government to go out of Pakistan for their treatment and, therefore, they should not be granted bail. The apprehension of the learned A.A.‑G. is brought to the notice of the applicants and they are advised in their own interest to desist from indulging in such activities as could incriminate them. It is needless to mention that the law can take its own course if the applicants do not follow the above advice. M.Y.H./A‑212/K???????????????????????????????????????????????????????????????????????????????? Bail granted.