ABDUL HAMEED DOGAR, J.---By this common judgment, we propose to dispose of Civil Petition Nos.
703 of 2003 and 704 of 2004 tirising from NAB Reference No,41 of 2002 as common question of law and facts are involved therein.
2. The facts leading to the filing of the above petitions are thatpetitioner Shahbazuddin Chaudhry established Currency Exchange Business at Al-Khobar, Saudi Arabia in the year 1958 under a license granted through Royal Decree in the name of Shahbazuddin Chaudhry Currency Exchange (S.C. Exchange). Petitioner Shahbazuddin Chaudhry was the sole Proprietor of S.C. Exchange whereas Khalid Shahbaz and Tariq Shahbaz his sons used to manage and control the affairs of the Company. According to the case of the prosecution, they lured/induced Pakistani expatriates living there to deliver Saudi Riyal to them, in lieu of cheques in American Dollars which were dishonored by Citibank, London. It was alleged that petitioner committed fraud while running money exchange business with the result that about 400 Pakistani Nationals were defrauded with 80 million Saudi Riyal equivalent to Pak. Rs,7,68,00,000 through fake and false drafts issued to them in US dollars which were dishonored by Citibank, London. Some affected persons whose cheques were dishonored approached the Courts in. Saudi Arabia for settlement of their claims and in some cases decrees were passed in favour of those parties. The persons whose claims were not satisfied came to Pakistan and some of them, namely, Muhammad Ashraf, Iqtidar Haider, Muhammad Yaqoob Niazi and Majid Iqbal lodged F.I.Rs at different police stations, the details of which are as under:--
(i) FIR No,251 of 1999, Police Station Misri Shah, on the complaint of Muhammad Ashraf.
(ii) F.I.R No,190 of 1997, Police Station Garden Town, on the complaint of Iqtidar Haider.
(iii) F.I.R No,272 of 2001, Police Station Ghalib Market on the complaint of Muhammad Yaqoob Niazi,
(iv) F.I.R No,369 of 2002, Police Station, Gulberg, on the complaint of Majid Iqbal.
3. Out of the above-mentioned four cases, the concerned police filed interim challans in FIR-. Nos.
272 of 2001 and 251 of 1999 before Judicial Magistrates concerned while the other cases remained under investigation of NAB Authorities. The cases pending before the concerned Judicial Magistrates were transferred under section 61-A of the NAB Ordinance, 1999 to Accountability Court, Lahore for trial whereas the two other cases remained under investigation by NAB Authorities. On 6-8-2002 the NAB Authorities issued an advertisement in various newspapers asking affected persons to contact them informing that the petitioners had been arrested. In consequence whereof about 20 affectees contacted the NAB Authorities. Resultantly, Reference was filed against petitioners and co-accused, namely, Tariq Shahbaz. Petitioners Shahbazuddin Chaudhry, Khalid Shahbaz and, their co-accused Tariq Shahbaz filed two writ petitions before the learned Lahore High Court. Through Writ Petition No,1246 of 2003, they sought quashment of proceedings against them whereas vide Writ Petition No,1247 of 2003, they applied for grant of bail. Both the writ petitions were rejected by a common judgment dated 10-3-2003. Petitioners Shahbazuddin Chaudhry, Khalid Shahbaz and co-accused Tariq Sha3ihaz in the instant civil petitions, challenged the said judgment before this Court.
4. During the pendency of the petitions the then learned Chief Justice in Chambers allowed bail on medical ground on 27-6-2003 to petitioner Shahbazuddin Chaudhry whereas petitioner Khalid Shahbaz and co-accused Tariq Shahbaz did not press the request for grant of bail and sought withdrawal of the Civil Petition No,703 of 2003 to their extent which was accordingly allowed to be withdrawn.
5. However, Khalid Shahbaz repeated the request for grant of bail through Writ Petition No,17680 of 2003 before the learned Lahore High Court which was dismissed by a learned Division Bench of the High Court on 24-2-2004. In consequence, he approached this Court by filing Civil Petition No,704 of 2004, urging the same plea.
6. We have heard Mr. Wasim Sajjad, learned Sr. ASC for petitioners and. Raja M. Ibrahim Satti, learned Advocate Supreme Court for the respondent and have gone through the record and proceedings of the case in minute particulars.
7. While insisting for confirmation of bail granted to petitioner Shahbazuddin Chaudhry on medical grounds, Mr. Wasim Sajjad, learned Senior Advocate Supreme Court vehemently contended that he being an old, man of 70/75 years of age was in fact suffering from Spinal (Cervical & lumber) spondylosis leading to Stenosis. According to him, in compliance with order dated 8-5-2003 of this Court, a special MedicalBoard consisting of four senior doctors was constituted which examined petitioner Shahbazuddin Chaudhry on 27-5-2003 and opined that he was suffering from Spinal (Cervical & Lumber) spondylosis, thus being an old infirm and sick person, his bail be confirmed. He has also placed on record the certificate dated 27-4-2004 which according to him, also shows that the petitioner is suffering from severe backache and his condition is deteriorating.
8. Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court for respondent, on the other hand, vehemently opposed the contentions raised by learned counsel for petitioner and contended that petitioner Shahbazuddin Chaudhry is not entitled to be enlarged on bail on medical ground as his condition is stable and no convincing ground for grant of bail on medical ground has been shown.
9. At the very out set petitioner Khalid Shahbaz and his co-accused Tariq Shahbaz withdrew their bail application which was dismissed as withdrawn to their extent vide order dated 8-5-2003.
However, petitioner Shahbazuddin Chaudhry urged for release on bail on medical ground. In order to ascertain the degree of ailment, a Full Bench of this Court referred the matter of petitioner to a Medical Board consisting of some senior Specialists. However, after receipt of medical report, petitioner Shahbazuddin Chaudhry was allowed bail after arrest on medical ground by the then Chief Justice in Chambers vide order dated 27-6-2003, observing that:- "Be that as it may, these petitions are to be heard by a Bench of this Court in detail and presently no Bench is functioning, therefore,. I direct that petitioner Shahbazuddin Chaudhry shall be released on bail, subject to his furnishing bail bonds in the sum of Rs,One crore with surety in the like amount to the satisfaction of the Accountability Court."
10. Admittedly, petitioner Shahbazuddin Chaudhry has taken the plea for grant of bail on medical ground for the first time before this Court though the same was available to him even before learned High Court, to which Mr. Wasim Sajjad, learned Senior Advocate Supreme Court frankly conceded. Though it is well -settled principle of law that a plea which was not raised before lower forum cannot be agitated before higher forum for the first time, yet in the interest of justice, learned counsel for petitioner has been heard at length.
11. On bare perusal of the above-referred medical certificate, it transpires that condition of petitioner is stable since more than one year.
It has not been opined that his detention in jail would be hazardous to his life, which is a requisite condition for grant of bail on medical ground. Grant of bail under first proviso to section 497(1)
Cr.P.0 is discretionary in nature. Every, ailment does not attract invocation of discretion contained in the proviso. There must exist strong reasons to believe that despite the availability of modern medical technology, life saving drugs, advance medical treatment and care, accused still requires treatment which is not generally available. Irrespective of above, medical opinion should be so explicit in nature that further detention of accused in jail would be hazardous to his life.
12. Considering the case of petitioner on the above touchstone, we are of the considered opinion that he has not been able to bring his case within the ambit of above conditions. Even otherwise according to nature of ailment shown in the opinion of the Medical Board, the petitioner is suffering from common and old diseases, which do not appear to be life threatening. For the last more than one year, his condition is stable. In such like circumstance, this Court in the case of Muhammad Arshad v. The State and another (1997 SCM R 1275) has maintained order of cancellation of bail passed by learned High Court, which was granted by trial Court on medical ground.
13. Accordingly, order dated 27-6-2003 whereby petitioner was allowed bail is recalled and Civil Petition No, 703 of 2003 being devoid of force is dismissed and leave to appeal refused.
14. As regards petitioner Khalid Shahbaz, it is worth mentioning that he had himself withdrawn his bail application on 8-5-2003 which was dismissed as withdrawn by this Court. Thereafter he repeated the bail application before learned High Court on the ground that progress has been made in the case and more than eight witnesses have been examined, who are said to have exonerated him from the commission of offence. This contention is devoid of force. On perusal, it is found that P.Ws. Namely, Fida Muhammad P.W.1 Javed Iqbal Butt P.W.4 and Majid Iqbal (5) so far examined have implicated petitioner in the commission of offence. Thus prima facie no case for grant of bail is made out.
15. Resultantly, finding no merit, Civil Petition No,704 of 2004 filed by petitioner Khalid Shahbaz is dismissed and leave to appeal refused.