JUDGMENT IJAZ NIZAR, J.- Criminal Misc. No.472, 473 and 474-B of 1996 have been placed before us, pursuant to thee order passed by the Honorables Supreme Court dated 14.4.1996, in constitution petitioner No. 18.20.1996.
The said constitutional petitions had ben filed before the Honorables Supreme Court, by Mian Muhammad Shahbaz Sharif, Petitioner, on the grounds, inter alia, that his bail petitions were being heard by a Full Bench of this Court but the hearing therein could not bee concluded as pursuant to the judgment of the Supreme Court in the Judges case, two members of the said Bench were not available being "affected Judges" i.e. Except for Justice Ijaz Nisar. Consequent upon the direction of the Hounrable Supreme Court, while dismissing the said petition, the present Bench was constituted to decide the bail petitions within three days as stated in the relevant para of the order dated 14.4.1996, reproduced hereunder.
"We are of the considered view that the bail applications could not be disposed of by the High Court for the reason which was beyond their control. It is stated before us that the petitioner is being tried for offences in respect of Banks (Special Courts) Ordinance IX of 1984 and under section 10(2) whereof bail plea is to be heard by a Bench of two or more Judges in the High Court. We refuse leave and direct the learned Acting Chief Justice of the Lahore High Court to constitute a proper Bench as contemplated under the provisions of the law mentioned above so that the bail applications may be disposed of within a period of three days from today. Leave is refused and in thee result thee petitions are dismissed."
2. This order will dispose of (1) Criminal Misc. No.472/1996 moved by Mian Muhammad Shahbaz Sharif, petitioner, in case F.I.R. No. 13/1994 dated 12.11.1994, police station F.I.A (S.I.U.), Islamabad, under sections 419,420,471, 109 B.B.C., section 5(2) of the Prevention of Corruption Act, 1947 and Article 3 of Holder of Representative Officers (Punishment for Misconduct) Order, 1977, registered on the allegations of opening of some fictitious accounts under the political influence of Mian Muhammad Nawaz Sharif, former Prime Minister of Pakistan, on thee basis whereof some loans were advanced in favour of Messrs Hudaibia Paper Mills Ltd against the foreign currency account of fake persons and thereby indulging in money laundering; (2) Criminal Misc. No. 473-B/1996 in case F.I.R. No. 3/1995 dated 22.4.1995 police station F.I.A. (S.I.U), Islamabad under sections 409, 420, 109 B.B.C:, section 5(2) of the Prevention of Corruption Act, 1947 and Article 2 of Holder of Representative Offices (Punishment for Misconduct) Order, 1977, registered on the allegations that Messrs Ittefaq Foundaries (Pvt) Ltd of which Mian Muhammad Shahbaz Sharif, petitioner, was a Director, procured a cash finance facility from Habib Bank Ltd for the procurement of raw material against pledge/hypothecation of sugar mills machinery/stocks by exerting political pressure and later disposed of the same in contravention of the contractual obligations forcing the bank to make payments of their behalf, and (3) Crl. Misc. No. 474-B/1996 in case F.I.R. No.4/1995 dated 22.4.1995 police station F.I.A. (S.I.U), Islamabad, under section 409, 420, 109 B.B.C., section 5(2) of the Prevention of Corruption Act, 1947 and Article 3 of Holder of Representative Officers (Punishment for Misconduct ) Order, 1977, on thee allegations of opening a letter of credit for the import of iron and steel scary, by using political influence on the bank officials while credit liability was already due against Messrs Ittefaq Foundaries (Pvt) Ltd. The petitioner was arrested, in all these cases on 4.11.1995 at the Lahore Airport.
3. Bail for Mian Muhammad Shahbaz Sharif petitioner, inter alia, is urged on the grounds that it is a case of civil nature; civil suit and winding-up petition are pending before the Banking Tribunal and the learned Company Judge respectively. Registration of case against him and his family members is mala fide and politically motivated. Additionally, it is argued by the learned counsel that he is suffering from serious backache since 1988 and had been getting treatment in the United Kingdom for the least about two years before coming to Pakistan.
He pressed for bail exclusively on the medical ground and in support thereof produced a number of medical certificates and prescriptions/recommended treatment by Medical Experts of Cromwell Hospital and Royal Free Hospital, London. He was also subjected to MRI test by the Medical Experts of U.K. All the specialists who had examined him had arrived at a unanimous conclusion that he was suffering from 'Prolapse disc' and the symptoms were to the effect that his condition was progressively deteriorating. They had further reported that he was unable to fully extend/make use of his limbs expecially his legs as a normal and healthy person can, and that he was having a constant backache and leg pain.
The learned trial Court had got the petitioner medically examined from professor Dr. Iqbal Bhutta, Orthopaedic Surgeon, Rawalpindi General Hospital on 15.1.1996. The said doctor reported that Mr. Shahbaz Sharif was suffering from acute exacerbation of discogenic paid with paraesthesia in Sl- defmotome and that his back muscles were stowing increased spasm. The copy of the said report and copies of the reports of the U.K. Specialists, referred to above, are available on the record.
This Court also got him medically examined' by Orthopaedic and Neuro Surgeons of Pakistan Institute of .Medical Sciences, Islamabad. Pursuant to the medical examination, the report whereof is on the file, Professor Muhammad Aslam Piracha, Consultant Orthopaedic Surgeon and Dr. Khaleeq-uz-Zaman, Neuro Surgeon made the following observation Sic Petitioner: "Patient has marked paraspinal spasm and spinal movements are restricted to 10 in flexion and lateral flexion. His straight leg raising is 60 on the right and 45 on the left. There is diminished , pin prick sensation over the left L5 and SI areas. Left ankle jerk is also reduced. There is diminished power on left planter and dorsiflexion.
PROVISIONAL DIAGNOSIS.
Intervertebral Disc Prolapse L5/SI - PLAN Patient's previous MRI Scan needs to be studied and will need a fresh MRI to compare it with the previous one. If Disc Prolapse is shown to be exaggerated then surgery will be considered.
ADMINISTRATION
1. Bed Rest alternating with walk.
2. Regular swimming and physiotherapy.
3. Avoid Cold surrounding.
4. Avoid prolong sitting.
5. Avoid jerky movements.
6. Avoid long and bumpy journey while sitting.
7. Capsule Lodine, 3000 mg, 1 three times a day after meal.
8. Tablet Diagesic, -2 tablet 4 times a day after meal.
9. Tablet Valium, 2 mg -1 a.m. 1 p.m,. & 2 at night."
5. One Court's direction and in accordance with the wishes of the learned counsel for the petitioner, the said Specialist Doctors had conducted further medical examination of the petitioner. Their reviewed medical report dated 16.3.1996 showed that they could foresee no chance of his improvement in jail, copy whereof is on the file.
6. Mr. Faruq H. Naik learned Deputy Attorney General while opposing the present bail application chose to press that the disease with which the petitioner was reportedly suffering from was not "fatal to his life" and further emphasized upon the gravity of the offence alleged to have been committed by him. It may, therefore, be taken into consideration that the petitioner was accused of having misappropriated a huge sum of money amounting to millions of rupees as stated in the F.I.R, and that he is thus not entitled to the grant of bail on medical grounds alone and in this respect he laid stress on the relevant provisions of law stating that the word 'May there in is of significance.
7. We have given our anxious consideration to the contentions raised by the learned counsel for the parties and after having perused the medical reports, certificates, prescriptions etc. And the recommended treatment of the petitioner, are of the view that he is suffering from a prolapse disc of serious nature requiring specialised treatment not available in jail. Once again we would like to refer to the reports of the above mentioned Medical Experts i.e. Professor Muhammad Salaam Piracy, Consultant Orthopaedic Surgeon and Dr. Khaleeq-uz-Zaman Neuro Surgeon of PIMS, Islamabad which categorically show that he condition of the petitioner/patient was likely to deteriorate further if not^ properly attended to and subjected to essential treatment required as recommended by them and that may even lead to paralysis. Admittedly the facility of the recommended treatment, as stated in the two medical reports referred to above, is not possible in jail.
8. Learned counsel for the petitioner and the learned Deputy Attomey General have placed reliance upon a number of cases to support their respective contentions. However, we may cite, with advantage, the case of Haji Meer Aftab Vs. The State (1979 SCM R 320) where it was observed that once a person was found sick and infirm he gets his case covered by 1st Proviso to section 497 Cr.
P.C. And it was not open to the Court to quantify the sickness and infirmity of such person. This authority answers the contention Sic the petitioner is not entitled to bail on the ground of sickness as the disease he is suffering from is not "fatal to life" as he chose to put it. Banaras Vs. State (PL1 1985 S.C. 366) may also be cited where bail was granted to an accused suffering | from a serious disease and treatment of his choice was not possible in jail vicinity. There is yet another case Misaal Muhammad Vs. The State (1986 S.C.M R.
847) wherein an accused charged with murder was granted bail by the Supreme Court on the ground of sickness.
9. Learned Deputy Attomey General appearing on behalf of the State did not call in question the genuineness of the medical reports referred to above nor could he express any disagreement with the findings arrived at by them in respect of the sickness/infirmity of the petitioner. In fact the learned Deputy Attomey General conceded that the facility of swimming and physiotherapy were not available in jail. He, however, offered to arrange the facility of swimming twice a day for the petitioner at some place outside the jail in Islamabad, by the State.
10. Pursuant to the above discussion we are of the opinion that the petitioner has been able to make out a good case for the grant of bail on the ground of sickness under 1st proviso subsection
(1) hoof Section 497 CrP. C. We, therefore, and direct that Mian Muhammad Shahbaz Sharif petitioner be released on bail in thee sum of Rs. 50,00,000/- (Rupees Fifty lac) with two sureties in the like amount, to the satisfaction of Deputy Registrar (Judicial) of this Court in each of the cases mentioned above.
11. Before parting, the Court wants to record its strongest disapproval, in most unequivocal terms, of the unpleasantness created in the Court during the proceedings of the instant case by one of the learned counsel for the petitioner namely, Ch. Muhammad Faruq, Advocate, by attempting to disrupt the proceedings of the Court uncalled for interference therewith the further defying thee direction of the Court to desist therefrom and to resume his seat, and instead misbehaving in most objectionable and unprofessional manner by taking recourse to totally irrelevant, extremely rude and condemnable defiant expressions being hurled at the Court. In this respect, special notice has been taken of the fact that the said learned counsel, Ch. Muhammad Faruq, Advocate, refused to get up from his chair along with other learned counsel present in the Court Room when the Court had re-assembled after a short break and had further adopted "the same professionally unbecoming attitude with the Court when the Senior Judge of the present Division Bench i.e. Ijaz Nisar, J. Had made observations to the effect that such conduct and behaviour on the part of any counsel is deplorable, but specially ,by someone who claims and is a senior counsel and who had held the office of Deputy Attomey General and Attomey General of Pakistan respectively: and had misbehaved on previous occasions as well during the proceedings in the instant case. However, the Court reserves its option to initiate necessary legal action against Ch. Muhammad Farooq, Advocate, for the stated reasons in accordance with the relevant provisions of the law. It may further be observed that the said counsel is already facing proceedings of contempt of Court before a Full Bench of this Court.
12. The Court, nevertheless, hereby records its appreciation of the conduct of the other learned counsel for the petitioner and members of the Bar, present before the Court, who had tried to through unsuccessfully, to prevail upon the said counsel, Ch. Muhammad Faruq, advocate, to maintain the decorum of the Court and to behave in accordance with professional ethics, and had otherwise apologised on his behalf without reservations.