' M. BILAL KHAN, J.--- The petitioner, namely, Ch. Muhammad Aslam Jamil son of Ch. Fateh Muhammad, had been convicted under section 9(vi)(x) and (xii) of the National Accountability Bureau Ordinance, 1999 and sentenced to a term of seven years' R.I. And a fine of Rs,96,00,000 and in default in payment thereof to further undergo two years' R.I. In Accountability Reference No,64 of 2002. He has already challenged his conviction by way of Criminal Appeal No,2/E of 2005, which is pending in this Court. Through this constitutional petition, he has sought suspension of sentence so awarded to him and his admission to bail primarily on medical grounds.
2. The petitioner's earlier plea for grant of bail on merits contained in his Writ Petition No,790 of 2005 had been turned down by this Court vides order, dated 20-6-2005.
3. In support of this constitutional petition for suspension of sentence and grant of bail, it has been argued that the petitioner "has fallen prey to multiple fatal diseases", which are not curable and there is imminent danger of sudden loss of his life; that the petitioner is presently confined to bed in the jail hospital "but the diseases has now attained serious position"; that in view of his precarious condition, the specialist doctors from Rawalpindi General Hospital have confirmed that the petitioner is suffering from serious complications of heart, stomach and intestine and "urinal track"; that there is acute danger of heart failure and cardiac arrest besides peptic burst and renal failure likely to cause his death, if he is not released to enable him to take proper treatment out of jail.
4. We have heard the learned counsel for the petitioner and the learned Additional Deputy Prosecutor-General for NAB at considerable length and have also perused the record.
5. After examining the report of the Jail Medical Officer, wherein he had opined that the petitioner required multiple investigations and tests, .The facilities of which, according to him, were not available in the jail hospital, we had directed Medical Superintendent, District Headquarters Hospital, and Rawalpindi to constitute a Medical Board to examine the petitioner. The Medical Board was required to express its opinion as to the nature of the disease and availability of facilities for its treatment in jail. The report of the said Medical Board dated 24-7-2006 has since been received, according to which the petitioner's Ischemic Heart Disease and his Angina are responding to treatment, whereas he needs treatment for oesphagitis/Gastritis/Duodenitis; his abdominal examination did not reveal any abnormality and liver function test (LFT) and urine tests, were also found to be within normal limits; multiple stones were detected in gallbladder. Insofar as his surgical problems were concerned, the Board opined that he needs operative treatment i,e, Elective Cholecystectomy. Thus, it is clear that the ailments of the petitioner are manageable in jail premises and are not such, which pose any serious threat to his life. However, if he needs any surgical intervention, he can be got , operated while being in custody. In an unreported case titled Haji Nek Muhammad v. The State (Criminal Miscellaneous No,28/L of 2001 in Criminal Petition for Leave to Appeal No,214/L of 2001) decided by the Honourable Supreme Court of Pakistan on 23-5- 2001, bail had been sought by the petitioner, who was involved in Drug Trafficking, from the High Court on the plea that he was a heart patient and required immediate bypass heart surgery. The High Court dismissed his application, however, it directed that he be got operated upon from the hospital/clinic of his own choice. The petitioner challenged the said order before the Honourable apex Court and it was argued on his behalf that once the ailment of the accused is established and his treatment is not possible within the jail premises, he had a right to be released on bail for his treatment. The Honourable apex Court repelled this argument in paragraphs Nos.5 to 7 which read as under:-- "(5) The argument of the learned counsel that once the ailment is established and the treatment/operation thereof is not possible within the jail premises, the under-trial prisoner in every case shall be allowed bail, is devoid of force. Prima facie, as reflected from the record, the petitioner is involved in a case entailing death penalty. This traffic in narcotics has plagued the whole society. Teeming millions are hooked upon it and their families are torn and their children are starving on the road side indulging in nefarious activities.
(6) The petitioner for his own self because of his sound financial position wants a conductive atmosphere without realizing that had his shady act succeeded, it would have shattered the peaceful lives of thousands of homes. We have also noticed and it is in everybody's knowledge that in Lahore, particularly in Punjab Institute of Cardiology and other private clinics, heart surgeries are performed successfully. High dignitaries and persons of fortune now prefer to get themselves operated over here instead of proceeding abroad for their treatment. Enlargement of the petitioner on bail, as already stated, would certainly frustrate the intention of the Act particularly so when other inmates of jail simply because of their pecuniary constraints are not in a position to get themselves treated in foreign countries. Islamic Jurisprudence ordains even handed application of law. There are many under-trial prisoners whose operations are being conducted under the supervision of the Superintendent of Jail concerned. Here we would like to mention a Hadith Mubarka, which has been quoted by Maulana Abu-ul-Alla Maududi in Tafheem-ulQur'an, Vol.III, P.344 in the following terms:- ' Hazrat Ayesha Siddiqa (Razi Allah Ho Taala Anha) has reported that the Holy Prophet (P.B.U.H.) stated as under:-- "previous nations were destroyed because whenever any important person used to commit offence of theft, he would be set free, and whenever a poor/weak person used to commit offence, he would be punished."
(7) The learned Judges of the. Lahore High Court through their impugned order have certainly struck the balance by passing a just and proper order in these circumstances, we are of the considered view that releasing the petitioner on bail, when the authorities are ready to provide him every facility in getting himself operated at a place of his own choice under the supervision of the jail authorities, would frustrate the intention of the Act. We do not find any infirmity in the order passed by the learned Judges of the Division Bench warranting interference by this Court."
6. In view, of what has been stated hereinabove, we see no merit in this petition, which is accordingly dismissed.
7. However, before parting with this order, we direct the Superintendent Jail concerned to get the petitioner admitted to a hospital of his choice, of, course, at the latter's own expense and make arrangements for his surgery, if the same is required at all. Needless to add that according to the opinion of the Medical Board, elective surgery is required, meaning thereby that surgery is neither urgent nor mandatory and can be scheduled well in advance at a time of convenience.