ABDUL HAMEED DOGAR, J.---Petitioner through this petition seeks leave to appeal against the judgment dated 21-7-2003 of Lahore High Court, Lahore whereby Writ Petition No,5583 of 2003 filed by petitioner was dismissed.
2. The relevant facts for the disposal of the instant petition are thatpetitioner and his co-accused, namely, Nisar Ahmed, Muhammad Irfan Iqbal, Mian Qurban Ali, Mian Abdul Razzaq, Tahir Nisar Mirza, Muhammad Siddique Dhillon, Shaukat Ali Bhatti, Khalifa Abdul Qayyum, Rashid Ahmed Khan, Qazi Naseer Ahmed and Nazir Ahmed vide reference No,08 of 2003 were sent up to face trial on 8- 4-2003 before National Accountability Court, Lahore by National Accountability Bureau under section 18(g) read with section 24 of National Accountability Ordinance, 1999 (hereinafter referred to as 'the Ordinance'). The case of prosecution in the above referred Reference briefly, stated is that co-accused Nisar Ahmad floated a company in the name of M/s Irfan Seamless Pipe Industries (Pvt.) Limited, Salamatpura, Lahore (hereinafter referred to as the Company') showing himself as its Chief Executive. On 6-6-1992, the Company requested Secretary Survey & Rebate C.B.R., Islamabad for issuance of Provisional Certificates under SRO No,510(I)/91 dated 30-5-1991 for import of raw material to manufacture special precision shafting of iron and alloy steel. In the said application, the Company did not claim to be the manufacturer of seamless pipes and instead claimed to be the manufacturer of special precision shafting only. On 9-6-1991, the Collector, Central Excise and Tax through Telex sent to co-accused Shaukat Ali Bhatti required to provide the list of machinery installed in the premises of the Company who on 10-6-1992 directed Syed Tanvir Ahmed, the then Assistant Director to do needful. On the same day, a list of machinery verified by deceased accused Khurshid Hassan, Superintendent, co-accused Qazi Naseer Ahmed, Deputy Superintendent and petitioner Aslam Bajwa wrongly confirmed that the Company had sufficient in-house facilities to manufacture special precision shafting of iron and alloy steel. On the receipt of information on 25-6-1992, Secretary again wrote letter to co-accused Shaukat Ali Bhatti asking for verification of the list of. Machinery provided and installed who confirmed the same on 10-6- 1992 about in-house facilities mentioned above. In addition, also further wrongly verified the existence/availability of 31 machines of the Company. As such, a Provisional Certificate was issued under SRO, which in fact was not warranted, and was a favour shown to accused Nisar Ahmad and the Company. It was on 22-8-1992, a complaint was received from M/s. Hafiz Seamless Pipe Industries (Pvt.)
Limited, Industrial/Estate Nooriabad, District Dadu, that the company was not the manufacturer of seamless pipes, hence was not eligible for any concession under above mentioned SRO. However, the above mentioned Provisional Certificate was further amended on 27-7-1992 whereby the Company was permitted the import of round billets as raw material without payment of duties. On 26-8-1993 another complaint was received by C.B.R., Islamabad, upon which co-accused Shaukat Ali Bhatti was required to provide a sample product and physical inspection by an officer not less than a Deputy Collector. In -response whereof, in February, 1993, a false report was prepared by Khalid Naseem, the then Deputy Director that the Factory was under construction and the machinery was in the process of installation. This fact indicated that false survey report regarding availability of machinery and in-house facilities was prepared by petitioner and his co-accused, namely, Shaukat Ali Bhatti, Khalifa Abdul Qayyum, Rashid Ahrnad Khan, Qazi Naseer Ahmad and Nazir Ahmad in order to favour the Company. To further favouring SRO No,146(1)/93 was notified in suppression of earlier SRO No,510/(1)/91, and in doing so, the area of its applicability was widened in such a manner as to extend its benefits to even those companies which were not manufacturing seamless pipes. As a result of this, accused Nisar Ahmad was able to import raw material without payment of duties/taxes etc. Thereafter on 21-7-1993 a survey of the premises of the Company was undertaken and a false and fake report was prepared which was signed by all the above mentioned accused including petitioner except accused Khalifa Qayyum, the then Technical Officer, Survey and Rebate. Even a false report regarding consumption of raw material at the site by the company in respect of import made by the company in April-May, 1993 was prepared by the official accused. After investigation, it was found that accused No,7 to 12 in collusion with the accused No,1 to 6 obtained illegal favour of Rs,1,43,80,23,112 and caused corresponding loss to Government Exchequer and thus committed offence of corruption and corrupt practices as defined in clauses (iv), (vi) and (vii) of section 9(a) punishable under section 10 of the Ordinance.
Petitioner Aslam Bajwa and other co-accused preferred respective writ petitions for grant of bail before the learned Lahore High Court which were dismissed by a learned Division Bench of the Lahore High Court vide impugned judgment.
4. We have heard Dr. Khalid Ranjha, learned Senior Advocate Supreme Court for petitioner and Mr. Muhammad Jaffar Hashmi, learned Advocate Supreme Court for the NAB at length and have gone through the record and proceedings of the case in minute particulars.
5. Learned counsel for petitioner stated that he seeks grant of post arrest bail of petitioner on medical grounds only In that context, he argued that petitioner is an old man of about 65 years of age with poor health on account of his being diabetic and an old case of Islamic heart disease, serious case of Coronary Arters Bypass Grafting and has already undergone prostate surgery and his detention in jail is life threatening. In view of the above condition of petitioner, his case falls within the ambit of first proviso of section 497; Cr.P.C., as such is entitled to the concession of bail.
6. Learned counsel for the respondent, on the other hand, vehemently controverted the above contentions and argued that treatment of the petitioner is being made in the hospital and as per final medical report, he is still hospitalized and is not confined in jail. According to him, even as per medical report, the condition of petitioner is stable for last more than one year as such does not deserve for concession of bail.
7. Dr. Khalid Ranjha, learned Sr. ASC when confronted with the impugned order conceded that petitioner has taken the plea for grant of bail on medical grounds for the first time before this Court though the same was available to him even before learned High Court. He, however, stated that as per contents of writ petition of the petitioner, the said ground was taken but the learned High Court while dismissing the same has not adverted to in the impugned order. It is well-settled principle of law that plea, which was not raised before lower forum cannot be agitated before higher forum for the first time, yet in the interest of justice, learned counsel for petitioner, has been heard at length.
8. Since learned counsel for petitioner mainly relied upon medical report dated 15-6-2004 of Special Medical Board of Mayo Hospital, Lahore, as such, for its proper appreciation, we feel it appropriate to reproduce the same: "The Special Medical Board assembled in the office of the Medical Superintendent, Mayo Hospital, Lahore, on 28-5-2004 to discuss the recent health status of Mr. Muhammad Aslam Bajwa in the light of recent investigations and the current medical condition of the patient. After having reviewed the -investigations (Coronary Angiography/Thalim Scan) a consensus has been reached that he does not require any cardiac surgical intervention at present because two of the three grafts (SVG to OM and LIMA to LAD) are patent. His vein graft to Right Coronary Artery has a tight proximal lesion. In the presence of ongoing symptoms of Angina despite of maximal medical therapy, Percutaneous Coronary Intervention is indicated. Till the recommended treatment has accomplished he needs hospitalization.
9. In view of the report of Medical Board, the condition of petitioner is stable. Special Medical Board with consensus had only recommended the hospitalization of petitioner for his treatment, which according to the learned counsel for the petitioner, is available, to him till this time and he is hospitalized. Grant of bail under first proviso to section 497(1), Cr.P.C. Is discretionary in nature.
Every ailment does not attract invocation of discretion contained in the proviso. There must exist strong reasons to believe that despite the availability of modern medical technology, life saving drugs, advance medical treatment and care, accused still requires treatment which is not generally available.
10. Accordingly, we are of the considered opinion that the petitioner has failed to bring his case within the ambit of first proviso of section 497 Cr.P.C. Entitling him for the concession of bail. Even otherwise nature of ailment shown in the opinion of the Medical Board petitioner is suffering from common and old disease, which does not appear to be life threatening. In similar circumstances, this Court in the case of Muhammad Arshad v. The State and another (1997 SCM R 1275) has maintained order of cancellation of bail passed by learned High Court, which was granted by trial Court on medical ground.
11. Resultantly, finding no merit in the petition, the same is dismissed and leave to appeal refused.