ORDERThrough this constitutional petition it has been prayed that the petitioner who is an accused in a N.A.B. Reference pending before the Accountability Court No. V, Lahore be enlarged on bail after arrest.
2. It is contended that the allegations against the petitioner are factually incorrect and in the facts and circumstances no case is made out against the petitioner, it is further contended that the petitioner is suffering from various ailments including backache, hepatitis-C and ulcers which cannot be satisfactorily treated within the Jail premises..
3. As directed by this Court Report and parawise comments have been filed by the respondents, who have taken the plea that the petitioner who was posted as Land Acquisition Collector, Punjab Highway Department, Lahore, criminally misappropriated a sum of Rs. 10,00,000/- by releasing it to a co-accused without following the provisions of Land Acquisition Act, 1894 and such act constitutes corruption and corrupt practices as defined by the N.A.B. Ordinance, 1999. It is further stated in the report that the petitioner has never complained of his illness on the basis whereon bail has been sought.
4. During the course of the proceedings of the present constitutional petition, pursuant to the order of this Court a Special Medical Board of the Services Hospital, Lahore was constituted to examine the petitioner. The said Board has submitted two separate reports which form part of the record.
5. The Learned counsel for the parties have been heard and the record appended with this petition has been perused.
6. It is contended by the learned counsel for the petitioner that in the facts and circumstances of the case the allegations against the petitioner are factually incorrect, it is further contended that the petitioner suffers from chronic ailments which cannot be treated within the Jail premises which fact, it is contended, is borne out by the reports of the Special Medical Board constituted under the orders of the Court and in the circumstances the petitioner is entitled to be enlarged on bail.
Reliance in this respect is placed on unreported order of this Court dated 25.7.2005 passed in Writ Petition No. 10234/2005 titled "Shahbaz-ud-Din Chaudhry vs. N.A.B. Etc."
7. The learned Special Prosecutor for N.A.B. Has seriously controverted the contentions raised on behalf of the petitioner, it is contended that the allegations against the petitioner are of very serious in nature and there is sufficient evidence on record to connect the petitioner with the crime.
Furthermore, trial of the case before the Accountability Court is in progress. Several prosecution witnesses have been examined. The learned Special Prosecutor further adds that it is apparent from the reports of the Special Medical Board that confinement of the petitioner in Jail is not per se hazardous to his life. The petitioner is obviously entitled to proper medical treatment for his ailments and if such treatment is not possible in the Jail Hospital, the respondents would have no objection if the petitioner is shifted to a regular hospital to ensure requisite treatment, In the circumstances the Learned counsel for the respondents contends that the petitioner is not entitled to be released on bail. Reliance in his behalf is placed on the cases reported as The State vs. Haji Kabeer Khan (PLD 2005 Supreme Court 364) and Shahbazuddin Chaudhry and another vs. State (PLJ 2005 SC 60).Muhammad Asad Lali V. NAB (Sardar Muhammad AsIgm, J.)
8. Adverting first to the contentions of the learned counsel for the petitioner on merits, suffice it to say that the said contentions are seriously controverted by the opposite side and. Determination of the veracity of such contentions, would require deeper appreciation of the material and evidence on record which would not be advisable at this stage as it would prejudice the trial where progress has been made and several prosecution witnesses have already been examined,
9. This Court vide order dated 8.7.2005 directed the Superintendent Jail, wherein the petitioner is confined, to get the petitioner medically examined from a Special Medical Board of the Services Hospital, Lahore. Consequently, such a Special Board was constituted and the petitioner was examined and a report dated 20.7.2005 was submitted to this Court. The relevant portion of the said report reads as follows:-"
1. He needs to continue his treatment under care of Orthopedic Surgeon for his chronic backache.
2. According to the investigations available he is found to be a case of Hepatities-C and would need therapy with interferons and ribavirin.
3. He needs to continue the therapy for his gastritis."
10. Subsequently, vide order dated 20.9.2005 the Medical Board was asked to submit a report as to whether the petitioner could be treated for the said ailments within the Jail premises and whether his stay in the Jail is detrimental 'to his life. Pursuant to the aforesaid order a report dated 27.9.2005 has been submitted by the said Medical Board, the opinion whereof reads as follows:-"
The Board is of the opinion that Hepatities-C and backache are chronic ailments. The treatment of Hepatitis-C needs continuous monitoring of blood picture, especially Hemoglobin percentage andplatelet count and liver1 function tests. While on interferon therapy, he is likely to be immune comprised and thus Will be prone to lot many other complications if he stay inside the Jail. For backache, he needs regular physical therapy for long period of time for complete recovery."
11. From the perusal of the opinion of the Board expressed in its report dated 27.9.2005 as reproduced above, it is clear and obvious that it has not been stated that the petitioner's continued confinement in the Jail per se is detrimental to his life. However, it has been stated that for the treatment of Hepatitis-C repeated blood tests would be required so as to monitor Hemoglobin percentage and platelet count. Similarly regular Liver Function Test would be required, italso appears that the treatment and cure for Hepatitis-C is not free from complications and would also require medical monitoring. Similarly for backache periodic and regular physical therapy for long period is also necessary for proper treatment of the petitioner, it appears that such monitoring and treatment may not be available in the Jail premises.
12. The apex Court in Shahbazuddin Chaudhry's case (Supra) while dealing with the issue of grant of bail on medical grounds was pleased to hold as follows:-"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."
13. Examining the reports of the Special Medical Board in the context of law as laid down by the apex Court in Shahbazuddin Chaudhry's case (Supra) reproduced above, we are not inclined to agree with the learned counsel for thepetitioner that the petitioner is entitled to be enlarged on bail at this stage. However, on no account can the petitioner be deprived of requisite and proper medical treatment which must necessarily be ensured and for that purpose the petitioner may be moved to the Services Hospital as an indoor patient, if necessary, so that proper medical care and treatment can be guaranteed.
14. With the above observation, this petition is dismissed.