1. ' The appellant has been convicted under section 10 of the National Accountability Bureau Ordinance, 1999 and has been awarded sentence of imprisonment for 5 years and to pay fine of Rs,1,85,00.000. In case of default in payment of fine he has to undergo further imprisonment for 2 years. His house situated in France has been forfeited in favor of the Federal Government of Pakistan. He has been further disqualified under section 15(a) of the National Accountability Bureau Ordinance, 1999 for a period of 10 years, from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as member or representative of any public body or any statutory or local authority or in service of Pakistan or of any province. He has been further disqualified from applying or being granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution, owned or controlled by the Government, for a period of 10 years from the date of his conviction. It has been further observed by the trial Court that the Chairman, National Accountability Bureau may request the Government of France to take action to freeze and forfeit the house and to handover its possession to the Embassy of Pakistan, Paris, France.
2. ' By the two applications under consideration, the appellant has prayed as follows:-- "(a) The sentence of imprisonment of 5 years be suspended and the appellant/applicant be released on bail.
(b) Sentence of imprisonment in default of payment of fine be suspended till final disposal of the appeal.
(c) The sentence of the forfeiture of the appellant's property in France is suspended.
(d) The applicant be permitted to proceed out of Pakistan for medical treatment.
(e) Direction be issued to the Special Court (Offences in Banks) Sindh, Karachi, to return the appellant's expired Passport lying with the said Court.
3. ' Heard Mr. Azizullah Shaikh, learned counsel for the appellant/applicant and Mr. Muhammad Anwar Tariq, learned D.P.G.A., N.A.B., for the State.
4. ' Mr. Azizullah Shaikh, learned counsel for the appellant has submitted that, the suspension of the sentence of imprisonment is mainly sought on medical ground. The learned trial Court while awarding the sentence has observed that, "the evidence and circumstances of the case demand that the maximum punishment provided in the said provision of law, for committing such an offence, needs to be awarded against the accused; but he is reported to be of old age and also passing sick and infirm life, therefore, he is hereby sentenced to suffer imprisonment for 5 years".
5. The learned counsel for the appellant has further pointed out that, under the directions of this Court while hearing Criminal Bail Application No,1359 of 2001, during the pendency of case before the trial Court, the appellant was referred to the Medical Board. The Special Medical Board stated as followed:-- "Mr. Hakim Ali Zardari complains of inability to walk due to weakness of the left lower limb and severe pain in the same leg. He gives history of hip surgery by Surgeon Umer at AKUH in 1994 or so and then had replacement of both hip joints in 1995 in Boston. On systemic review, he denies any symptom related to CVS, Resp.. GIT, except for severe pain left lower limb. About 6 months back he fell in the wash room and developed severe pain left shoulder joint and back."
6. ' In continuation of the above report, the Special Medical Board submitted another report on the basis of medical examination dated 2-5-2002 as follows:-- "After reviewing history, physical examination and the investigations, Board is of the view that the applicant needs a redo surgery for his left hip joint. And that cannot be done in sub-jail. Therefore, keeping the applicant in jail would be detrimental to his health..
7. ' Further the applicant has collapsed vertebral bodies due to osteoporosis (TV9. 12, LVI & 3), for which he needs careful mobilization alongwith medial management."
8. ' Mr. Azizullah Shaikh, contended that, the ailment of the appellant is of very serious nature and although his house was declared sub-jail but the complicated and delicate surgery required by the appellant is not possible in sub-jail. In support of his contention, that, in view of admitted serious ailment of the appellant, he is entitled to the suspension of imprisonment and release on bail, he has placed reliance on the case of Malik Muhammad Yousafullah Khan v. The State, PLD 1995 SC 58. The Honourable Supreme Court, has laid down the dictum that, the bail on medical ground can be granted under section 497, Criminal Procedure Code, if the Court reaches the conclusion on the basis of medical report that the ailment with which the accused is suffering is such that, it cannot be properly treated while in custody in jail. Their lordships of the Supreme Court have further observed that, "The correct criteria for grant of bail to an accused in a 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". In the cited case the Medical Board had opined that, there was no possibility of treatment of the appellant's injury even in specialized centres of Peshawar but also in other areas of the country. The Board also recommended immediate treatment of the appellant in a foreign country to avoid disability, therefore, the Honourable Supreme Court admitted the accused/appellant to bail.
9. ' The second case relied upon by Mr. Azizullah Shaikh, is Zakhim Khan Masood v. Special Judge Central, Rawalpindi, 1998 SCM R 1065. In this case the Honourable Supreme Court allowed bail in the sum of Rs,5,00,00,000 (Rupees fifty million), on the ground that the ailment with which the petitioner was suffering was likely to have hazardous effect on his life becauseof the stress and strain in the jail.
10. ' The third case referred to by Mr. Azizullah Shaikh, is Mian Manzoor Ahmad Wattoo v. The State, 2000 SCM R 107. The Honourable Supreme Court while referring to the two earlier cases referred to above, reiterated the criteria for granting bail on the medical ground as propounded in the case of Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58.
11. ' The last ruling on which Mr. Azizullah Shaikh, has placed reliance is in the case of Muhammad Saeed Medhi v. The State, 2002 SCM R 282. The appellant was facing trial before a National Accountability Bureau Court with co-accused Asif Ali Zardari and Shafi M. Sehwani. In this case a prayer was made for releasing the appellant on bail on various grounds including the serious ailment. A Full Bench of Honourable Supreme Court, reiterate the principles laid down in the case of Mian Manzoor Ahmad Wattoo v. The State (supra) and granted bail to the appellant.
12. ' Mr. Azizullah Shaikh, has submitted, that, in view of the admitted serious ailment of the appellant/applicant and in the light of criteria laid down by the Honourable Supreme Court in the cases cited by him, the appellant is entitled to be released on bail. The arguments of Mr. Azizullah Shaikh, are mainly directed in respect of the prayer for suspension of sentence of imprisonment and release of the appellant/applicant on tail. The other prayers have been pressed but in a lukewarm manner.
13. ' On the other hand, Mr. M. Anwar Tariq, learned D.P.G.A. Opposed the bail application. He placed reliance on a Full Bench judgment of this Court in the case of State v. Dr. Usman Farooqui PLD 1998 Kar.
148. In this case the bail plea on account of ailment was refused. Mr. M. Anwar Tariq, has further submitted that if the appellant/applicant is released on bail and he leaves the country for medical treatment, there is no surety that he will return back to Pakistan.
14. ' In reply to this apprehension, Mr. Azizullah Shaikh, submitted that the properties owned by the appellant and the forfeited property is sufficient guarantee for the return of appellant to Pakistan and additionally he shall be released on furnishing of suitable surety amount fixed by this Court.
15. ' We have carefully considered the contentions raised by the learned Advocates for the parties and have perused the material available on record.
16. ' The learned Deputy Prosecutor-General National Accountability Bureau, has opposed the bail application, but he is not able to deny the serious ailment of the appellant/applicant. From the medical reports, we find, that, the appellant/applicant is at present almost crippled person who is not able to perform his ordinary per suits of life on his own. He requires re-do surgery of his left hip joint. The Medical Board has certified categorically that the re-do surgery is not possible in sub-jail and his keeping in jail would be detrimental to his health. Keeping this fact in view and applying the criteria laid down by the Honourable Supreme Court in the cases relied upon by Mr. Azizullah Shaikh, we are, of the opinion that, the appellant/applicant is entitled to be released on bail.
17. ' In view of the above conclusion, the sentences of imprisonment awarded to the appellant by the trial Court are hereby suspended, till final disposal of the appeal and looking to the conviction and sentence awarded, we direct that the appellant/applicant be released on bail on furnishing surety in the sum of Rs,2,00,00,000 (Rupees two crores) by furnishing two sureties in the sum of Rs,1,00,00,000 (Rupees one crore) each, to the satisfaction of Nazir of this Court.
18. ' As regards, the forfeiture of the appellant's property in France, it is directed with the consent of learned Advocates for the parties that, it shall remain forfeited but no third party interest shall be created in the property till the disposal of appeal. So far, the return of applicant's expired passport is concerned we find that, it is lying with the Special Court (Offences in Banks) Sindh, Karachi, and the present appeal has no connection with the proceedings before the Special Court (Offences in Banks) Sindh, Karachi. Consequently, no such direction can be given in any proceeding arising out of the conviction and sentence awarded by Accountability Court. The pray in this behalf is.
19. Therefore, rejected. As far as, the permission sought for proceeding out of Pakistan for medical treatment is concerned, the appellant/applicant may approach the concerned authorities in this behalf, after release on bail. Since the trial Court has not placed any embargo on proceeding of appellant outside the Pakistan, therefore, the prayer made is outside the scope of the provisions contained in section 426, Criminal Procedure Code. This prayer is also refused with the observation that it will not debar the appellant/applicant from approaching the concerned authorities in this behalf.
20. ' The two applications are disposed of as above.
21. Sentence suspended.
22. 2005 P Cr. L J 159 [Lahore] Before M.A. Shahid Siddiqui, J MUKHTARAN BIBI alias KALO BIBI---Petitioner versus S.H.O., POLICE STATION PHOOL NAGAR DISTRICT KASUR and 2 others---Respondents Writ Petition No,14742 and Civil Miscellaneous Application No,3 of 2002, decided on 28th August, 2002.
23. Constitution of Pakistan (1973)--- ----Art. 199---Constitutional petition---Recovery of minor---Petitioner had sought recovery of her suckling daughter aged 1-1/4 years from the custody of her ex-husband and it was not possible to determine the exact age of the alleged abductee but she was not more than 2 years of age as admitted by the respondent's father himself---Minor, should not be deprived of the natural love and affection of her real mother---Right of the minor to be in the custody of her mother even if it was assumed that the petitioner herself had relinquished the custody of her minor daughter for obtaining divorce---Minor's right to remain in the custody of her mother does not terminate unless she is held disentitled to retain the custody of the minor---High Court, in circumstances, ordered the minor to be given in the custody of the petitioner immediately and allowed the petition. [p. 161] A Sheikh Hamad Danish for Petitioner. Kashif Nawaz for Respondent No,3.
24. ' Mst. Mukhtaran Bibi alias Kalo Bibi filed a petition under section 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking recovery of her suckling daughter Allah Rakhi aged 1-1/4 years from the custody of Muhammad Yousuf, her ex-husband. According to the averments made in the petition, Younas (respondent No,2) and his son Muhammad Yousaf (respondent No,3) on 8-7-2002 entered the house of the petitioner and took away the alleged abductee, who was lying on a cot in the courtyard. The mother of the petitioner got a case registered under section 363, Pakistan Penal Code but no action was taken. The petitioner after having failed in her efforts to get back her daughter through the police moved the instant petition stating that Allah Rakhi is breast-suckling baby. She apprehended that she would die of hunger without breast-feeding. On 13-8-2002, keeping in view the contents of the petition, a direction was passed to the S.H.O., Police Station, Phool Nagar, District Kasur to recover the infant and produce her before this Court on 19-7-2002.
25. Haji Qasim, S.-I./S.H.O., Police Station Phool Nagar failed to produce the alleged detenue on the last date of hearing. The instant petition was to be taken up on 2-9-2002 but on an urgent petition filed on behalf of the learned counsel for the petitioner, the office has put up this case today after obtaining necessary permission from the Honourable Chief Justice. Haji Qasim, S.-I./S.H.O., Police Station Phool Nagar has produced the alleged detenue. According to respondent No,3, who happens to be the father of the child, the facts stated in this petition are false and as a matter of fact the custody of the alleged detenue was handed over to him by the petitioner herself in lieu of divorce and since then the baby has been putting up with him. He produced an agreement, which shows that the petitioner herself relinquished the custody of the minor at the time when she obtained Talaq.
2. Learned counsel for the respondents submitted that the custody of the minor with his father is not illegal in any manner. He further submitted that the petitioner suppressed certain material facts from this Court as such she is not entitled to take the custody of the minor by invoking the Constitutional jurisdiction. He submitted that the petitioner may be directed to approach the proper forum for obtaining the custody of the minor.
3. I have considered the arguments. According to the petitioner, the alleged victim is one year and three months old, who cannot live without breast-feeding as such it would be in the interest of the minor that she should be given in the custody of the petitioner. At this stage, it is not possible to determine the exact age of the alleged abductee but in any case, she is not more than two years of age as admitted by respondent No,3, himself. The minor girl is hardly two years of age. She should not be deprived of the natural love and affection of her real mother. It was in fact the right of the minor to be in the custody of her mother. Even if it is assumed that the petitioner herself had relinquished the custody of her minor girl for obtaining divorce, the minor's right to remain in the custody of her mother does not terminate unless she is held disentitled to retain the custody of the minor; therefore, the minor is ordered to be given in the custody of the petitioner immediately. The respondent/father may approach the Court under the Guardians and Wards Act, if so advised. This petition stands accepted.