1. ' Through this Criminal Miscellaneous Application under section 561-A, Criminal Procedure Code the applicant has prayed for the following reliefs:--
(a) Direct the respondents to produce the applicant on each and every date of hearing in cases before the Courts at Karachi mentioned in para. (4)(i) to
(v) hereinabove.
(b) Direct the respondents to allow him to avail facilities granted to him by the various Courts of (Sindh) as mentioned in para.13 hereinabove.
(c) Any other relief(s) deem fit and proper in the circumstances of this case by this Honourable Court.
2. ' The applicant is facing trial in five criminal cases, which are pending in different Courts. The details of such cases are as under:-
(1) F.I.R. No,443 of 1996 under section 302 of Q&D, Ordinance Ex officio Additional Sessions Judge, Karachi. Trial takes place twice a week under the orders of Sindh High Court.
(2) F.I.R. No, 2 of 1997 under sections 409, 420 and 109, P.P.C. Read with section 5(2), Prevention of Corruption Act, 1947 before Special Judge Central-I, Karachi.
(3) F . I. R. No,357 of 1996, under sections 302/34/109/120, P.P.C. Before Special Court Suppression of Terrorist Activities Act (STA Court) Central-I.
(4) F.I.R. No,65 of 1999 under section 325 of Q&D Ordinance before Vth Judicial Magistrate (South)
3. Karachi.
(5) F.I.R. No,66 of 1999 under section 325 of Q&D Ordinance before Vth Judicial Magistrate (South)
4. Karachi.
5. ' In spite of the above criminal case the applicant is also facing references, which are being heard against the appellant outside Karachi:--
(1) Accountability Reference No,27 of 2000 before Accountability Court No,1 under section 15(1) of the Ehtesab Act, 1997 at Rawalpindi.
(2) Accountability Reference No,6 of 2000 before Accountability Court under section 18(g) read with section 24 of the National Accountability Bureau Ordinance, 1999 at Attock Fort, Attock.
6. ' It is contended by the learned counsel for the applicant that during his confinement in jail, on account of the life threatening ailment from which the applicant is suffering which includes heart probable hypertension, peptic ulcer, acute spondolytic of cervical and lumber region with sciatic pain both the lower limbs of the applicant started weakening; which caused trouble in walking.
7. Furthermore, the applicant is also suffering from ailment of the eyes, ear and kidney due to high blood pressure as well as problem in the brain for which MRI has to be carried out.
8. ' It is urged that in view of his ailment, the applicant moved an application for admission in a medical institution having all the facilities for the treatment to be carried out with respect to his ailments ultimately the Honourable Supreme Court vide order, dated 11-8-2000 directed the admission of the applicant in Dr. Ziauddin Medical University Hospital Clifton, Karachi and the Provincial Government was directed not to create any abstacles in the shifting and lodging of the applicant. The applicant was admitted as per direction in the said hospital and he remained there under treatment and applicant was produced before the trial Court as per directions.
9. ' That on 6th February, 2001 the applicant was discharged from the hospital and thereafter he was produced before the Accountability Court at Attock Fort, Attock. The applicant was lodged in Pakistan Institute of Medical Science (P.I.M.S.), Islamabad by the respondents Nos.1 and 2. He further stated that the room of the P.I.M.S. Wherein applicant has been lodged has been declared as sub- jail by the competent authorities and the applicant is now in the custody of the respondents Nos.1 and 2. The applicant was produced before the Accountability Court at Attock Fort, Attock on 10-2- 2001, then on 28-2-2001. Now the next date of hearing is 17-3-2001.
10. ' The applicant was also produced before the Accountability Court at Rawalpindi on different dates and he was lastly produced before the said Court on 9-3-2001. Now the next date of hearing is 16- 3-2001. The production orders in the five criminal cases, which are pending trial at Karachi hereinabove are being issued by the concerned Courts for every date of hearing for the production of the applicant, but however, he is not being produced before the said Courts by the respondents.
11. Learned counsel has further contended that the applicant has been granted, inter alia, facilities mentioned herein below by the various Courts of Karachi:--
(a) "A" class facility.
(b) Permission of the counsel and family members to meet the applicant.
(c) Television alongwith SPTV Antenna.
(d) Electrict heating system.
(e) Fridge.
(f) Air-conditioner.
(g) Computer with all necessary appliances/attachment.
(h) Electric Heater.
(i) Sitting in police van next to the driver.
12. ' That despite the said facilities having been granted to the applicant by the said Courts, the applicant is being denied the said facilities by the respondents Nos.1 and 2 with mala fides intention and ulterior motives to victimize and torture the applicant.
13. ' Learned counsel for the applicant during the arguments has placed on record photostat copy of an order, dated 17-3-2001 passed by the Accountability Court-I, Attock Fort. It indicates that the reference has been adjourned sine die and case would be again fixed for hearing. Therefore, the applicant may be produced at Karachi in the abovementioned cases.
14. ' Learned counsel for the applicant has relied upon the famous case of Benazir Bhutto v. State reported in 1999 SCM R 759 (766) and another photo copy (unreported case) of Writ Petition No,13311 of 1997 from Lahore jurisdiction Muhammad Nawaz Tiwana v. Federation of Pakistan and others.
15. Another photo copy of order in case of State v. Ch. Mukhtiar and others.
16. ' Mr. Raja Qureshi, Advocate-General, Sit dh has placed on record a letter, dated 16th March, 2001 which is reproduced as under:-- "Chief Executive's Secretariat H National Accountability Bureau, Islamabad No,1(50) Prose/NAB/2000 Dated 16th March, 2001.
17. To Mr. M. Anwar Tariq, ' Deputy Prosecutor General Accountability, ' Regional Accountability Bureau, Karachi Subject: Criminal Miscellaneous Application No,89 of 2001 Asif Ali Zardari v. Government of Pakistan through Ministry of Interior Pakistan. Secretariat Islamabad and 3 others.
(1) We have received the copy of the letter which Raja Qureshi, learned Advocate-General, Sindh addressed to the Secretary Government of Sindh, Home Department and copy addressed to the NAB.
(2) Kindly assist the learned Advocate- General in the above matter. Please inform him that presently there are two references pending against Mr. Asif Ali Zardari, one in the Accountability Court at Rawalpindi and the other in Accountability Court at Attock. Fbrt. The case in the Accountability Court at Rawalpindi is to come up on 20-3-2001 on which date statement of Asif Ali Zardari under section 342, Cr.P.C. Shall be recorded. Other case against Asif Ali Zardari in the Accountability Court at Attock Fort is fixed for 17-3-2001, it must be emphasised before the Court that the reference against Asif Ali Zardari has been delayed extraordinary because Zardari employed all means not to be removed from the jurisdiction of Sindh High Court. However, if he is allowed to remain in Islamabad the reference in Accountability Court at Rawalpindi is likely to be concluded in a couple of weeks.
(3) It may also be submitted before the Court that Zardari is admitted in P.I.M.S. Hospital, Islamabad which is one of the best hospitals in the country. He is receiving all the necessary treatment. The doctors have certified him to be fit to attend trial in Rawalpindi and Attock Fort. In so far as the amenities which he enjoyed in Karachi are concerned, it may be submitted that it is for the Court at Rawalpindi and Attock Fort to order those amenities and the prosecution has never objected to any lawful amenities being granted to him.
18. (Sd.) Raja Muhammad Bashir, Prosecutor General Accountability ' Copy with compliments to Raja Qureshi, the learned Advocate-General, Sindh."
19. ' I have gone through the case-law relied upon by the learned counsel for the applicant, which has no relevance in the present case.
20. ' At the very outset learned Advocate-General, Sindh has raised the following objections:--
(1) The trial Court in Karachi had possessed the machinery to enforce his attendance.
(2) This Court is not the appellate authority of the Accountability Court-I, Attock and Accountability Court, Islamabad, which are functioning in Punjab.
(3) Object of section 561-A, Cr.P.C.
(4) Accused has no recourse available to chose forum of his choice to attach priority of trial amongst the different cases in Sindh and Punjab.
(5) Prosecution undertakes not to proceed with the cases pending at Karachi till the references are finally decided by the Accountability Courts.
(6) Inherent jurisdiction under section 561-A, Cr. P.0 . Cannot be exercised by this Court by directing the Accountability Court not to proceed with the trial at Rawalpindi and Attock Fort and this Bench has limited jurisdiction to the territory of Sindh.
(7) The correspondence made by the authorities suggests that the references will be concluded in a couple of weeks.
(8) Mr. Zardari is admitted in P.I.M.S. Which is one of the best Hospitals in the country and all medical facilities are being received and all facilities/ amenities, which he enjoyed in Karachi, may be prayed and it is for the Courts at Rawalpindi and Attock Fort to order/extend such facilities to the applicant and prosecution has never objected to any lawful amenities being granted to him.
(9) Present application is not maintainable and not warranted and liable to be dismissed.
21. ' Messrs Muhammad Zaki, learned Dy. A.-G. And Mr. Anwer Tariq, Deputy Prosecutor-General, have adopted the same arguments advanced by the learned A.-G., Sindh.
22. I have considered the pleas raised by the learned counsel for the respective parties and examined the material placed on record. It is admitted position that this Court is not Appellate Authority in Reference cases which are being tried by the Accountability Courts at Attock and Rawalpindi, therefore, this Court cannot direct the Accountability Court not to proceed with the said trials, which are at the conclusion stage and there is possibility to conclude it in a couple of weeks. The applicant is admitted in P.I.M.S. Hospital, Islamabad, which is one of the best hospitals in the country and he is receiving all the necessary treatment. The doctors have certified him to be fit to attend the trial in Rawalpindi and Attock Fort.
23. So far as the object of section 561-A, Cr.P.C. Is concerned, it is advantageous to reproduce the section 56I-A, Cr.P.C. As under:-- "561-A Saving of inherent power of High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
24. ' In view of the above, the inherent jurisdiction under section 561-A, can be invoked and exercised against the revisional order of the subordinate Courts, or to quash any proceedings initiated as an abuse of Court to warrant interference or any order passed by Investigating Officer or by any Court subordinate to such High Court.
25. In view of the circumstances, stated above, I am of the view that the present application under section 561-A, Cr.P.C. Is not maintainable and Accountability Courts at Rawalpindi and Attock Fort cannot be directed not to proceed with such trials against the applicant. .
26. ' Resultantly, finding no merits in the instant application, the same is dismissed. After conclusion of such references the applicant may be produced before such Courts at Karachi, where five cases are pending for trials.
27. ' On 27-3-2001 by a short order, this Criminal Miscellaneous Application was dismissed and the above are the reasons for the same.