' CH. IFTIKHAR HUSSAIN, J.--- Abdul Salam petitioner through the instant petition has sought for post-arrest bail in case F.I.R. No,591, registered under section 408, P.P.C. With Police Station Gulberg, Lahore on 5-6-2008.
2. Precisely the allegation against him as per the F.I.R. Is that he being the ex-President of Deaf Cricket Association had misappropriated an amount of Rs,16,51,000 donated to the said association by the Board of Cricket in Pakistan and House Building Finance Corporation for the promotion of the game of cricket.
3. It has been argued on his behalf that he has been falsely roped in; that the auditor of the Board has reported that no embezzlement as alleged in the F.I.R. Has been made in the accounts of the said Association; that although the internal auditors of the Board have reported that there was some embezzlement of the amount of the Association but the earlier report is not in confirmation to the same; that in any case, if it may be presumed that there is some weight in the latter report of the auditors, it then would be a matter of rendition of accounts and that can only be done at an appropriate forum and not by a court of criminal jurisdiction and until and unless it is so done, it cannot be said that in fact the embezzlement as alleged had taken place; that being a deaf person, his point of view and stance has not been recorded properly and thrashed in that way and this in fact would be ultimately prejudicial to his case in the times to come; that in any case he is behinds the bars since 11-4-2009 and this period is spread over atleast four months; that keeping him behind the bars any more would not serve any useful purpose of the prosecution; that the offence does not attract the prohibition contained in section 497(1), Cr.P.C.; that 1st proviso to section 497, Cr.P.C. Is attracted to his case being an old person of 60 years of age and sick even within the meaning of the word assigned to that proviso; that the report received by the Medical Officer, Central Jail, Lahore regarding his state of health was transmitted to the court vide the Endorsement No,15521, dated 24-6-2002 of the office of Superintendent, Central Jail, Lahore and in that report he has been shown as a patient of heart; that the learned Additional Sessions Judge, Lahore fell in error in observing that such a disease is common one as by no stretch of imagination, it can be said to be a common or normal disease; that it is clear from the said report that he had undergone heart surgery in Doctors Hospital, Lahore on 12-6-2008 and was also referred to the consultant Professor of the Punjab Institute of Cardiology, Lahore for his investigation and opinion with reference to that ailment and after such investigation, he has opined that he needs expert opinion from the consultant/cardiologist in a well-equipped hospital, which certainly is not available in Jail, that it is right of every person to get treatment of his own choice and the same cannot be denied to him on any count; that his disease is serious and the learned Additional Sessions Judge has not properly adverted to the same and rather dealt with the same in a very casual manner resulting into prejudice to him in his matter; and that in any case the evidence of the prosecution in this case consists of documents and the same is with them and hence there is no apparent apprehension or chance of his tampering twith the same or abscondence.
4. Conversely, the learned Additional Prosecutor-General has opposed the petition on the ground that he has committed criminal breach of trust being an Office Bearer of the Deaf Cricket Association by committing the embezzlement of the said huge amount donated to them for the purpose of promotion of the Deaf Cricket in Pakistan; and that no proof has been produced by him to show his clean hands in the matter.
5. I have carefully considered the submissions made on behalf of the parties and perused the record.
6. It has not been denied by the prosecution side that there are two contradictory reports in this case by the two different sets of auditors of the Board. His matter, when seen from that angle, there seems some force in the contention raised on his behalf that the matter in fact relates to the rendition of accounts to form clear view that if he had committed the criminal breach of trust as alleged against him or that there is no such stigma on him in the matter. Hence, this matter, if seen from that angle, the same certainly calls for further inquiry into his guilt and so is covered within subsection (2) of section 497, Cr.P.C.
7. There is also no denying the fact that the alleged offence against him does not attract the prohibition contained in section 497(1), Cr.P.C. In the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34, their lordships in the august Supreme Court of Pakistan have observed that grant of bail in such-like cases is a rule and refusal an exception. I while hardly find any exceptional circumstance to warrant refusal of the relief to him. Mere involvement of huge amount in the matter is not an exceptional circumstance.
8. He is stated to be of the age of 60 years. The same has not been controverted by the other side.
9. He is also stated to be a sick person. In the Report No, 533, dated 23-6-2009, compiled by the Medical Officer, Central Jail, Lahore produced before me, it has been mentioned as under:- "It is submitted that the above said under trial prisoner is admitted in Jail Hospital due to IHD (Ischemic Heat Disease). His CABG (Coronary, Artery, Bypass, Grafting) done before admission in jail on 12-6-2008 in Doctors Hospital Lahore. He was referred to PIC Lahore as an emergency case due to acute chest pain with SOB. The consultant Professor Dr. Muhammad Azhar examined him and advised treatment. And investigations Echocardiography and stress thallium scan test and called for above said investigation on 22-6-2009. Echocardiography done and recalled for thallium scan test and called for above said investigation on 22-6-2009. Echocardiography done and recalled for thallium scan test on 5-7-2009. Advice treatment is being provided from the jail Hospital but his complains are still present. He needs expert opinion from the consultant Cardiologist in well-equipped Hospital. These facilities are not available."
10. The above portion of the report indicates that he is suffering from heart disease and has also undergone heart- bypass. This aspect is also supportive of his such plea.
11. It is also to be mentioned in this regard that he was examined by the Consultant Professor Dr. Muhammad Azhar of the Punjab Institute of Cardiology, Lahore. It was after his certain tests like echocardiogram and others. The said Professor after such investigation has formed an opinion that he needs opinion from the consultant in a well-equipped hospital and such facility is not available in jail. l2. There is also no denying the fact that treatment of choice is always right of a person and the same cannot be denied to him. Hence, his case is also definitely covered within the lst proviso to section 497(1), Cr.P.C, and he on that account also deserves indulgence of the court. I am, therefore, inclined to exercise my discretion in his favour on that count as well the case, thus, for his enlargement on bail has been made out.
13. The petition is, therefore, accepted and he is allowed bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned Illaqa/Duty Magistrate.
14. However, it is made clear here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall be no bearing at all on anybody's case at trial.