' The F.I.R. In this case was registered on 18-8-1997 at 20-30 hours for offences under sections 409/109, P.P.C. Read with section 5(2) of Act II of 1947. The date and time of occurrence is shown to be during the year 1994-95. The complainant Inspector Mushtaq Ahmed Sahito of F.I.A. State Bank Circle Karachi in his complaint mentioned as under:-- ' "Consequent upon material received from Ehtsab Cell, Islamabad and verbal directions to the effect that necessary legal action is to be taken on this material, it has been revealed that during the year 1994-95 K.E.S.C. Board of Directors recommended in its meeting on 25-1-1995 that before the submission of recommendations to the Asian Development Bank for the rehiring of Messrs Lahmayers Consultants for the undertaking of the Contract of US $84 Millions Consultancy services for the 6th Power (Sector Loan) Project, it was decided that in order to reach an assessment of the correct rates, other Leading International Consultants should also be invited, so that the proper base could be established. It also transpired that the decision to this effect took place in the Directors Project Committee held on 18-2-1995. This was communicated as the decision by the Corporate Secretary of the Board of Directors Mrs. Oswald Pearl vide his letter of 19-2-1995. The Chief Engineer of K.E.S.C. Mr. Burney did not implement the said decision. However, the K.E.S.C.
Signed the contract with Lahmayers without a competitive process just to favour them with ulterior motive, so that commission of Kick Back could be obtained. Mirza Ikhtiar Baig and Fazal-ur- Rehman both then Directors of K.E.S.C. Board pointed out gross irregularities in the award of contract to Messrs Lahmayers, but their view point was not given any weightage.
' The material further discloses that accused Bureney the then Chief Engineer, K.E.S.C. And Mr. Asif Ali Zardari the then M.N.A. Being Public Servants abused their official position and committed the criminal breach of trust as such a Public Servant on being abetted by co-accused Javed Ali, Ghani Ansari, Majid Bashir and others for awarding unwarranted Consultancy contract to Messrs Lahmayers in defiance of established rules and practices, thereby causing pecuniary advantage, either to themselves or to their representatives to the tune of US $10 to 15 millions and a corresponding loss to the public ex-chequer.
' The above act of the accused persons has been substantiated by documentary as well as oral evidence which constitutes commission of cognizable offence punishable under sections 409/109, P.P.C. Read with section 5(2) Act II of 1947. Hence the registration of case and investigation is taken up."
2. Learned Special Judge, Central Karachi in his order, dated 6-3-1998 disposed of the bail application mentioning as under:-- ' "I have carefully considered the arguments advanced by the learned counsel and also perused the medical reports. Admittedly there is no where mention in the medical report/certificate that remaining of the accused in jail is detrimental to his life. However, looking to the disease of the accused I feel necessary to direct the jail authorities to provide all the best medical facilities to which the accused is entitled and which are necessary for his disease. However, if any time the condition of the accused is so desire the jail authorities are strictly directed to take all the measures regarding health of the accused as per advise of the doctors/medical experts. With this observation the bail applications is disposed of accordingly."
3. Learned Advocate for the applicant submitted that the applicant/accused is innocent and has been implicated in this case due to political reasons. He is a sick person and is suffering from various ailments including Peptic Ulcer, Acute Spondalitis, Lumber and Schiatic pain. It was further submitted that the applicant/accused was ordered to be examined by a Medical Board by Sessions Judge, Karachi South but the Government of Sindh failed to submit the medical report of the Medical Board on the pretext that the accused had influenced the members of the Board but, however, under the orders of the Honourable Supreme Court of Pakistan the Medical Report was produced and opened before the Sessions Judge, Karachi South on 7-7-1997. The Board had concluded that:-- ' "Under the circumstances the right approach always conservative and in case six weeks of intensive therapy fails to bring relief surgical intervention is contemplated. The Board opined that conservative therapy received so far by the accused has been inadequate in terms of physiotherapy and pain management. Thus, the Board suggested that further period of intensive management should be instituted in a properly equipped institution for six weeks. At the end of this period the accused should be re-examined by the Board with a view of reassessment vis-a-vis surgical intervention."
4. According to learned counsel for applicant/accused the Government failed to comply with the recommendation of Medical Board but one Physiothreapist was, however, deputed to give treatment to the applicant inside the jail which was ineffective and inadequate. The disease has further aggravated and needs medical treatment in a special institution to protect his life. In view of these facts the continued confinement of the applicant/accused in jail is liable to prove fatal to his life. Learned counsel requests that the applicant may be released on bail so that he may get treatment by the doctors of his choice as the recommended treatment is not available in jail. The applicant/accused was also suffering from teeth ailments and he was produced before Dr. Mushtaq Memon, Head of the Department of Dental Surgery of J.P.M.C. Karachi on 3-6-1997 under order of Special Judge Central-H, Karachi. The applicant/accused was not produced before Dental Surgeon as recommended by him in spite of repeated orders of Special Judge Central-II, Karachi.
The dental disease has, therefore, been aggravated. The applicant/accused was referred to J.P.M.C. By Special Judge-I Central, Karachi and Professor of Neauro Surgery J.P.M.C., Professor Rashid Jumma examined him on 1-1-1998 and submitted his report on 5-1-1998 to the Court.
According to the said report:- ' "Senator Asif Ali Zardari is a case of acute spinal distress. The history and examination suggest that his spinal condition is mechanical in origin and most likely due to degenerative change in the spine. The erythema abigne over the patient's back has been caused by poor technique in application of infra-red thermotherapy and suggest that the physiotherapy he is having at present is technically inadequate and rather than providing benefit may be deleterious."
' In view of this the doctor recommended:-- ' "that further evaluation of Senator Asif Ali Zardari acute spinal distress will require felxionextension radiography of his lumber spine alongwith a CT scan of the same and that these studies be conducted at Jinnah Postgraduate Medical Centre and the results be submitted to him for final recommendation."
5. Thereafter, applicant/accused was again examined by Professor Rashid Jumma and in his report, dated 24-1-1998 he opined as under:-- ' "Further to my examination conducted on January 1, 1998 the radiographic and CT scan studies of Mr. Zardari performed at this centre on January 21 have been reviewed by me for issuance of a final report. This should be read in conjunction with the earlier report of 5-1-1998.
' The X-ray and scan confirm the clinical impression of premature degenerative changes in joints of the lumber spine and this clearly is the cause of his intractable low back pain. It is recommended that in the first instance he be provided with complete and comprehensive physiotherapy including hydrotherapy to strengthen the lumber extension muscles. If a 10 to 12 week course of physiotherapy is ineffective in relieving his pain he would be advised to undergo lumber spine instrumentation and fusion. Though this is a major surgery, it may represent his only chance of avoiding becoming incapacitated by spinal distress."
6. Learned counsel for the applicant, therefore, submitted that the reports of the Medical Board dated 25-3-1997, two reports dated 5-1-1998 and 24-1-1998 explicitly show that Senator Asif Ali Zardari, the applicant requires immediate medical treatment of his own choice. The treatment recommended by Prof. Rashid Jumma relating to physiotherapy and hydrotherapy were not available in jail vicinity. The physiotherapy treatment given by the Sindh Government had caused erythema abigne. From these reports it can be seen that the applicant is suffering serious diseases and if he is not treated properly it will lead to cancer as well as paralysis, therefore, he may be granted bail so that may get treatment of his choice. Learned Advocate for applicant has placed reliance on decisions reported in (1) PLD 1966 SC 658, (2) PU 1978 SC 366, (3) 1978 SCM R 191, (4) 1981 SCM R 686, (5) 1986 SCM R 847, (6) 1995 PCr.LJ 1613, (7) PLD 1995 SC 58 and (8) KLR 1996 Crl.
300.
7. Learned Standing Counsel opposes the grant of bail to the applicant and submitted that all necessary treatment is being provided to him in jail.
8. The medical reports produced by learned counsel for the applicant are as under:--
(i) the relevant portion of the report of Professor Rashid Jumma is as under:-- ' "If a 10 to 12 week course of physiotherapy is ineffective in relieving his pain he would be advised to undergo lumber-spine instrumentation and fusion. Though this is major surgery, it may represent as only chance of avoiding becoming incapacitated by spinal distress."
(ii) The report of Dr. Najam Shaikh of Agha Khan University Hospital Karachi, dated 11th January, 1997 is as under:- ' "The M.R.I. Report of Mr. Asif Ali Zardari were seen by me and the symptoms as told by the attendant of pain in the neck radiating down both arms, weakness of both lower limbs, difficulty in urination and sensory loss in the right leg, with the M.R.I. Finding of a disc at C.5, C.6 and L.4, L.5 clinically correlated with the diagnostic finding. If not evaluated and treated properly could be life threatening and the patient could become paralyzed."
(iii) The Medical Board held at Central Prison, Karachi on 16-2-1998 has mentioned as under:-- ' "Painful lump attached to flexor tendon right hand ring finger render needs excision under general anesthesia and tourniquet. This deeds day hospitalization."
(iv) The report of Professor Kamaluddin Khan, dated 15-6-1998 is also available and relevant is as under:-- ' "Mr. Asif Ali Zardari was examined by me on 11th June, 1998 on his request at the Central Prison, Karachi. He complained of deafness in both ears for the past one year, there were no associated symptoms of tinnitus and vertigo. He also complained of headache associated with Intermittent Nasal obstruction without any discharge. He has week eyesight for which he wears glasses but recently he has been troubled with his left eye which needs to be tested. He also suffers from recurrent sore-throats accompanied by mild temperature and bodyache which usually revolves with daily gragling and analgesics."
(v) The report of Dr. Amina Merchant of Agha Khan University Hospital, dated September 15, 1998 is as under:-- ' "On 12-9-1998 Mr. Zardari a 44 years old gentleman was referred to the Opthalmology Clinic at the Agha Khan University Hospital for evaluation of headaches and dizziness. Mr. Zardari complained of bilateral headache and vertigo. The headaches are occasionally relieved by taking different tablets and sleep.
' His past ocular history is significant for moderate degrees of Myopia with stigmatism for which he has worn hard contact lenses in the past and was currently a soft contact lenses wearer. He has also undergone an examiner laser photokerootomy 2-1/2 years ago in his left eye for correction of myopia. The surgery was performed in England. Since his time in prison Mr. Zardari has avoided wearing contact lenses because of problems with hygiene and risk of infection."
' The Doctor has, therefore, opined that Mr. Zardari will require distinctive treatment and will require an Examiner myopic correction which was not available and the surgery in his right eye should also be performed by the surgeon who performed the surgery in his left eye using the same laser that was used previously in order to obtain more predictable results.
(vi) There is letter of Mr. David Gaily M.D., F.R.C.S. Consultant Ophthalmic Surgeon, 149 Harley Street, London, WIN 2DE, dated September 15, 1998 wherein he has mentioned as under:-- ' "Unfortunately, due to circumstances of which I am sure you are aware, he has not been able to return to the United Kingdom for further assessment and management and I understand that he is now having considerable difficulties with the operated eye. It is quite likely that this is because of large imbalance between the two eyes the right eye still being moderately short sighted and it is most important that I am able to examine him, assess the situation and offer whatever treatment might be necessary in order to improve his vision."
9. Learned counsel for applicant has argued that some of ailments of applicant are such that it is not possible to provide treatment while in custody. He has relied on decision reported in Mian Muhammad Shahbaz Sharif v.. The State KLR 1996 Criminal Cases p.300 wherein Lahore High Court was pleased to grant bail to accused suffering from similar ailment. Incidentally Mr. Farooq H. Naik who is appearing for applicant had appeared for State in the cited case as Dy.A.-G. And has opposed the grant of bail. Learned counsel for applicant has relied on order of Supreme Court reported in Banaras v. The State 1978 SCM R 191 where bail was granted because the appellant was suffering from serious disease and he could not have treatment of his choice in the jail hospital.
Reliance has also been placed on judgment of Supreme Court reported in Malik Muhammad Yousufullah Khan v. The State and another PLD 1995 SC 58 and the relevant portion on page 65 is as under:- ' "From the above discussed position it is clear to us that the bail on medical ground can be granted under section 497, Cr.P.C. If the Court reaches the conclusion on the basis of medical report that the ailment which the accused is suffering is such that it cannot be properly treated while in custody in jail. The fact that appellant is not suffering from any particular type of injury as observed by learned Judge that there was no fracture of bone in that case), would not be ground either to refuse or grant the bail on medical grounds. The correct criteria for grant of bail to an accused in non-bailable case, on medical ground, in our view would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life."
10. In this case the applicant is not suffering from single ailment but he is suffering from a number of ailments and the relevant medical opinions have been mentioned above. These opinions are sufficient to lead to the conclusion that the nature of ailments are such that these can affect the capacity of the prisoner and are likely to be hazardous to his life. Some of the ailments are such that they require specialized treatment which cannot be, provided in jail. The accused/applicant cannot have a treatment of his choice in the jail hospital and it will be difficult for the jail authorities to look after him. I, therefore, grant him bail subject to furnishing of one surety in the sum of Rs,10,00,000 (Rupees ten lacs only) and P.R. Bond in the like amount to the satisfaction of Nazir of this Court.