Sharjeel Inam Memon (Petitioner) VS The State (NAB) (Respondent)

lo31

IN THE HIGH COURT OF SINDH. I(ARACHI

Before:- Mr. Justice Muhammed Iqbal Kalhoro, J.

Mr. Justice Mohammed Karim Khan Agha, J.

Petltion No. and. nqme of oetttloner o,lofto utlth counseL 1. C.P. No.D-1965 of 2018 Muhammad Hanif (petitioner) V/s. Chairman NAB through Mr. S. M. Iqbal, Advocate

2.C.P. No.D-1963 of 2018 Asim Amir Khan Sikandar (petitioner) V/s. Chairman NAB through Mr. Shahab Sarkil, Advocate 3. C.P. No.D-2604 of 2018 Syed Masood Hashmi (petitioner) V Chairman NAB & another through Mr. Mahmood Alam Rizvi, Advocate

4.C.P. No.D-2891 of 2018 Sharjeel Inam Memon (petitioner) V Chairman NAB & another through M/s. Khalid Javed Khan and Muhammad Ahmer, Advocates

Counsel for the Resno ndents.

Mr. Mohammed Altaf, Special Prosecutor, NAB.

Date of Hearing: 26.04.2018 and 02.O5.2O18

Date of Order: 14.05.2018

ORDER

Mohammed Karim Khan Agha. J. By this common order we propose to dispose of the above mentioned petitions for post arrest bail which have been filed by petitioners Muhammed Hanif, Asim Amir Khan Sikander, Syed Masood Hashmi on merits and Sharjeel Inam Memon on medical grounds. The pre arrest bail petitions of all the petitioners were recalled by this court vide order dated 25.10.2017. The post arrest bail on merits in respect of petitioner Sharjeel Inam Memon was dismissed by this court vide order dated

2.The brief facts of the ease are that following inquiries/investigations conducted against the petitioners and the t other co-accused by the National Accountability Bureau (NAB) in relation to acts of cormption and corrupt practices falling within tJre purview of S.9 of the National Accountability Ordinance 1999 (NAO) NAB filed Reference No.5O/16 State v Sharjeel Inam Memon and others on 28-09-2016 against the petitioners and other co-accused in connection with a scam by oflicials of the Information and Archives Department Government of Sindh (GOS) a

I

l03s and various advertising agencies whereby the advertising agencies were appointed illegally and in violation of the relevant rules through a misuse of authority/failure to exercise authority by the Government officials who malafide, deliberately and in connivance with each other awarded contracts to advertising agencies at exorbitant rates which unduly benefited the advertising agencies who are beneficiaries in this case who acted in connivance with the government officials which led to a colossal loss of approximately { RS 5 Billion to the state exchequer.

3.Petitioner Sharjeel Inam Memon was the Minister for Information and Archives Department (GOS) who along with other official co accused allegedly misused their authority/failed to exercise their authority in order to unduly benefit certain advertising agencies and has approached this court on the ground of medical bail only. Whereas petitioners Muhammed Hanif and Asim Amir Khan Sikander were employees of one of the main beneficiary advertising agency Evernew Concepts Pvt. Ltd which was headed by co-accused Inam Akbar whom we have already found to be the master mind behind this act of cormption in so far as it related to Evernew concepts through our pre arrest bail order recalling his and the other petitioners and co-accused pre arrest bail as referred to earlier in this order. Petitioner Syed Masood Hashmi was the owner of Orient Advertising Agency which was also one of the main beneficiaries of the scam.

4.Learned counsel for petitioner Muhammad Hanif submitted that he was not subject to the NAO as he was an employee of a private company and in this respect he was covered by the companies Ordinance for any wrong doing. In support of his contentions he placed reliance on numerous sections of the company Ordinance 1984 and the case of Chalrman NAB V Fehmida Begum (2015 SCMR 172); that his role was confined to operating the accounts of Evernew Concepts which authority had been given to him through a Board resolution and as such he operated the accounts on the instructions of the directors in good faith; that he had no idea that the funds which he transferred were I the proceeds of crime; that he had not made any personal benefit and for all the above reasons he should be granted post arrest bail. Learned counsel for petitioner Asim Amir Khan Sikander conceded that the NAO was applicable to him however like petitioner

V

to31 Muhammad Hanif mentioned above he submitted that he was an employee of Inam Akbar who was the owner of the company, the key player and main beneficiary and he like petitioner Hanif operated the accounts on his instructions; that he had no idea that the monies which he had transferred were proceeds of crime and he had made no personal gain and thus for all the above reasons he was also entitled to post arrest bail.

5.Learned counsel for Syed Masood Hashmi mainly contended that the petitioner was prepared to deposit the amount which NAB claimed was his liability with the NAB and on this basis he should be granted post arrest bail. In this respect he referred to various authorities including, and on similar lines, to Shamraiz Khan V State (20O0 SCMR 157), Nisar Ahmed Dina v. The State (2005 SCMR 1875), Mohammad Rashid Umar v. The State through Chalrman NAB (SBLR 2012 SC 78) Syed Muzaffar AJi V Chairman NAB (2016 P.Cr.LJ 1183) and Ehsanullah Shah V NAB unreported Supreme Court case dated 24.O4.2OL8 .He also submitted that his case was on a better footing than the other advertising agencies who were co-accused in the reference as at least he had provided some documents in support of his claims when he invoiced the GOS whilst none of the other co-accused advertising agencies had done so. Thus, for the above reasons he was entitled to be granted post arrest bail.

6.Learned counsel for petitioner Sharjeel Inam Memon who had approached this court only for the grant of bail on medical grounds in this respect relied on the reports of various medical boards which showed that he satisfied the legal requirements for the grant of bail on medical grounds.

7.Learned Special Prosecutor NAB submitted that with regard to merits there was more than sufficient material on record to connect all the petitioners to the commission of the offenses for which they had been charged and in this respect took the court through various documents in support of his contentions. He also relied on the finding on merit in the-consolidated pre arrest bail order whereby the pre arrest bail of all the petitioners had been recalled by this court and thus for all the above reasons submitted that the post arrest bail petitions of all of the petitioners should be dismissed.

tl

J

tolro

8.With regard to medical bail in respect of petitioner Sharjeel Inam Memon he submitted that the medical reports did not show that he met the legal requirements for grant of bail on medical grounds and as such his petition for bail on medical grounds should also be dismissed or in the alternative he may be confined to hospital and not released on medical bail. In this respect he placed reliance on Muhammad Arshad v. The State and another (1997 SCMR 1275) and The State v. Hqii Kabeer Khan (PLD 2005 s.c. s64),

9.We have heard the parties and have carefully gone through the documents on record and considered the medical reports and other medically related material placed on record and the various authorities relied upon by the parties in the light of the particular facts and circumstances of this case,

10.We would also like to make it clear that the findings in this order are only based on a tentative assessment of the material available on record and not a deep appreciation of the same and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court.

1 1. We regard to tJle argument of petitioner Muhammad Hanif that since he was only a humble employee of the company under the NAO he could not be liable we completely reject this contention. This is because in the case of Abdul Aziz Memon V State (PLD 2013 SC 594) it was explicitly held by the Hon'ble Supreme Court that the word, "person" as defined in the NAO applied to all persons including private persons. Persons who commit white collar crime are generally cunning and crafty in their modus operandi not withstanding the fact that it is difficult enough to gather evidence in white collar crimes. If employees of companies were excluded from the purview of the NAO this would enable persons who committed corruption and were liable to be proceeded against under the NAO to be by design deliberately placed on junior positions within the company or as humble employees so that their acts of cormption in league with others would not fall under the NAO which may defeat the legislative intent and judicial interpretation of the NAO. Such novel, clever and devious tactics cannot be allowed to flourish. S.4 NAO also needs to be kept in mind which applies to all citizens in Pakistan. t2

t0ql

12.Otherwise with regard the cases of Muhammad Hanif and Asim Amir Khan Sikander although there is material on record to show that they operated the bank accounts of Evernew concepts and even transferred funds to Inam Akbar's private bank accounts and other companies owned by him we have taken into account the fact that they were relatively minor players in the scam which was orchestrated by Inam Akbar who was the de jure and later de facto head of Evernew Concepts and the main beneficiary of the scam; tJ.at they were acting on instructions of the Directors of the company; that they appear to have made no hnancial WsonaL gain; the fact that they have already spent i approx 6 months in jail would also tilt the balance in favour of the grant of bail and as such they are granted post arrest bail subject to them each furnishing solvent surety in the sum of 1.5M (fifteen lacs each) and PR bond in the like amount to the satisfaction of the Nazir of this court. The names of both-the petitioners shall also be placed on the ECL

13.With regard to the case of Syed Masood Hashmi he has submitted that he is prepared to pay the amount of the alleged loss to the Chairman NAB pending the out come of the tria-l. This is not a new ground and was rejected by this court through its aforesaid consolidated order recalling the petitioners pre arrest bail at Para 93. With regard to Shamraiz's Khans case (Supra) which is the foundational case, which the petitioner relies on, this case is distinguishable based on the particular facts and circumstances of that case. In Shamralz's case (Supra) the petitioner had deposlted virtually the whole amount of misappropriated funds to the Food Department who he had allegedly embezzled it from. i.e. he had returned the money. Whereas ln thls case the petitioner wants NAB to hold the amount ln trust for him until concluslon of the trial and then if he is acquitted return the amount to him. This is a major difference and makes the cases and even the principle relied on in Shamraiz Khan's case (Supra) distinguishable. Even otherwise in Shamraiz Khau's case (Supra) 17 other co-accused had already been granted bail which is not the case in this reference. In our view if the amount is relatively minor in nature there may be some scope for such an approach to be adopted provided that NAB has no objections. For example, in Muzaffar Ali'a case (Supra) NAB had no objections. Otherwise we are of the considered view that by allowing such lr/

laq2 deposits to effect be held in trust by NAB or the Nazeer of this Court until the outcome of the trial would to a certain extent amount to circumventing the provisions of voluntary return and plea bargain as provided in S.25 NAO and thereby defeat the Iegislative intent as other accused and particularly beneficiaries are likely to adopt such an approach. In the recent case of Flda Hussaln Shah V NAB and other (CP.No.D-19O4 unreported dated 19-06-2017) tJlis court rejected a similar proposal (and although Fida Hussain Shah was later granted bail in the aforesaid case by the Hon'ble Supreme Court it was not on account of him depositing any funds with the court but on other considerations) and thus we need to be consistent in our approach. It is also significant that in this case four other accused beneficiaries entered into VR with NAB prior to the filing of the reference. If those illegal beneficiaries would have known that they could pay their illegal gain into a deposit account pending finalization of the trial this would have most probably been tl:e route which tJley would have taken. Thus, this is a precedent which we would not like to set. Furthermore the petitioner in this case was a major beneficiary who was directly involved in the scam. Ehsanullah'g case (Supra) is distinguishable because in that case the petitioner had already spent almost 3 years in jail and the conclusion of the trial was not within sight which is not the position in the petitioner's case. As such his request to deposit the amount of his liability is declined. He may, if so advised, apply for plea bargain under S.25 NAO.

14.In this reference we found in our consolidated pre arrest bail order that there was deliberate and malafide misuse of authority/failure to exercise authority in violation of the relevant rules and regulations by the Government officials in connivance with the beneficiaries which caused a inassive financial gain to the beneficiaries and a huge loss to the government exchequer.

15.There is both a general allegation in the reference against all the advertising agencies (including the petitioner) as well as a specific one. The general one which is found at Para 4 of the + Reference reads as under:

"Para 4. That the investigation also reveals that advertising agencies suppressed the invoices issued by the media channels which had showed the actual amounts, with ulterior motives and malaflde lntentloa in connlvance with the ofllclals

V)

toq3

of Stndh Informatloa Department and claimed much higher amounts as compared to the amounts invoices issued by the media channels. Illhereas, as per well settled practice, advertislng agencies are entitled to get only l5olo agency commission agalnst the total bill / lnvolce received from the media channel. (bold added)

16.At the outset it ls both pertiaent and relevant to obserye that 4 other Media/advertising companies (M/s Connect Marketing Pvt Ltd, M/S Value Added Marketing Services Pvt Ltd, M/S Xnine Pvt Ltd and M/s Sync Advertisement Pvt Ltd) all of whom had altegedly been illegally awarded advertising contracts in violation of the Rules by the Ministry of Information and who had all over charged the Ministry of Information and were faced with the same allegations as the petitioner in the reference by using the same modus operandi all admitted their guilt and entered into voluntary returns with the NAEI whereby they repaid their ill gotten gains.

17.Apart from his general role of suppressing invoices the petitioner has also been given a specilic role at Para 12 of the reference which reads as under;

"12. The investigation further reveals that Accused No.13 Syed Masood Hashml is CEO/Director/ overall owner of the advertising agency of M/s. Orient

I

Communication Pvt. Ltd (Orient). which received Rs.320 Million from Sindh Information Department against release of advertisement campaigns on Electronic Media (FM/TV). He obtained invoices on the exorbitant rates from the media and same amount was claimed from the Sindh Information Department, but he got special discounts / credit notes in addition to 15% agency commission from the media and as such was major beneficiary of exorbitant rates which resulted into loss to the national exchequer to the tune of Rs.75,830,568/-

18.The petitioner's main defense was that he did not charge exorbitant rates and that he was fully entitled to charge the rates which he did. This was because according to him this was an unregulated industry. In this respect he placed reliance on The Pakistan Broadcasting Association Rules and Regulations Governing Conduct of Advertising Agencies / MBHS. .f

19.Thus, according to the rules the petitioner through his proprietorship Orient was entitled to keep (a) 15% commission as of right (b) any other form of bulk discount or (c) credit note availed by them. W

rcqq

20.In this respect Orient referred- to numerous transmission certificates, bulk discounts credit notes which they had received and were entitled to keep.

2l . Modus Operandi: In effect by way of an example of what was the happening was that the advertising agency for example would be given an invoice by the T.V company for the advert of RS 100 out of which the advertising agency kept 15% as commission, then kept another amount as bulk discount say 157o, then kept another amount by way of credit note say another 15%o, so the advertising agency would only pay RS 55. Howeve-r when the adverting agency invoiced the Information Department GOS for the advert run by the T.V company the advertising agency gave a different involce which would only show RS 100 less 157o commission so that the cost of the advert to the GOS was RS 85 which allowed the advertising agency in this example to pocket an extra RS 30 on top of its allowed commission (with the GOS allegedly having no idea about this practice when for all practical purposes this extra RS 30 was most probably split between the advertising agency which had been favoured and the Government officials who are also co- accused in this reference and favored them by violating the Rules). As such the true amount paid to the T.V company by the advertising agency has been dishonestly suppressed by the advertising agency in its invoices to the GOS.

22.Even if we accept that the advertising agency was allowed 15o/o commission as per Para 7 of the amended Pakistan Broadcasting Association Rules and Regulations Governing Conduct of Advertising Agencies / MBHS only an extra 15%o was available making a total of 30% if the bills were paid within a specified period. However as is apparent from the documents on record the petitioner (Orient) was claiming far more than this as indicated by the table in the reference (which is reproduced below) which has not been disputed by Orient which in the various columns shows the amount received by Orient from GOS, amount * actually paid to the TV Channel by Orient and the resultant loss to the exchequer. In nearly all cases the discount was well over 3oolo reaching as hlgh as 7Oo/o in some casea.

t04r M/s Orient Communications Pvt Ltd. s. Channel Amount Difference / Actual pald or No (Tv/FM) received loss to natioual payable by the from Govt. ageocy to the excheguer by the whlch also channel after Agency deductlon oflncludes agency amount of commisslon & credit Note / special Special discounts discount obtained by the agency 1 Dunya 7,382,667 4,773,884 1,5()1,383 News TV Channel 2 Geo TV 30,792,784 23,482,O85 3,166,2O2 Network J Metro 16,551,5O0 6,060,37L 9,7o41259 One TV Channel 4 Samma 3,647,OOO 2,306,919 793,031

TV

Channel 5 ARY g,Lo2,g76 7,501,958 682,763 News TV Channel 6 AwazTY 23,173,8OO 8,190,1 13 L6,679,73+ Channel 7 Health L,79O,248 1,253,174 228,257

TV

Channel

8 Sindh TV 15,901,999 2,767,9L9 11,s82,671 Network 9 Mehran 16,517,001 LO,234,254 6,431,854

TV

Channel 10 Dawn 17,oLo,663 11,175,9 15 3,283,15() News TV Channel 11 News 5,285,000 2,676,O11 1,934,364 One TV Channel 12 Solo 2t,67r,5OO 5,oo0,ooo L3,42O,775 Media Group 13 Digi 4,306,500 2,5oO,0Oo 1,431,5OO Media t4 FM 1OO Fake TC & Invoice 5,99O,625 Total L73,132,978 87,922,50.2 75,83O,558

23.The above modus operandi of dual invoices and the above chart in our view comprehensively shows that Orient was deliberately and with malafide intention suppressing invoices from the GOS which enabled it to illegally benefit greatly and caused a colossal loss to the GOS. This was the modus operandl adopted

lcq

by all the advertlslng agencies who are co-accused except that the other ageacies conduct was far more illegal as they had no sredit notes or bulk billing discouut to show precisely why they had deducted what amouut. Thus, it may be true that the case of the petitioner is on a better footing than the other advertising agency co-accused such as Evernew Concepts, Adarts etc as the petitioner at least provided some documents in support of his claim. We have already dismissed the post arrest bail petitions in respect of Adarts advertising agency which was another illegal beneficiary, on merits which was appealed before the Hon'ble Supreme court and was withdrawn by Adarts with the direction that they may again if so advised approach this court for post arrest bail.

24.With regard to over billing by the petltloaer (Orientf and Evernew reference can be made to S.161 statements of Mohammed Harris Hussain and associated documents (lR P.2LS to 2231 Ghulam Hussain and associated documents (lR P.225 to 23ll Kaleem Ahmed and associated documents (IR P.239 to 245, 251, 253), Mohammed Ali Saeed and associated documents (lR P.255- 267\ Kaneel Iqpat (lR P.269 to 2731and Qazi Ahmed Mateen (IR P.27s)

t

25.Ultimately however there is no getting away from the fact that the material on record shows that the petitioner through his illegal conduct and connivance with the ofhcial accused from the Ministry of Interior in this case caused a massive loss to the GOS and there is more than sufficient materia-l on record to connect him to the commission of the offense for which he has been charged and as such his petition for post arrest bail is dismissed.

26.With regard to the case of SharJeel Inam Memoa who has applied for bail on medical grounds we first need to consider the relevant law on what amounts to bail on medical grounds and then consider his medical reports to see if they meet these legal requirements.

The law on ball on medical grounds.

27.The statutory basis for the grant of bail on medical grounds can be found in the hrst proviso to 5.497 Cr.PC which provides as under:

Yr4

l0

t6 q1

"497. When bail may be taken in case of non-bailable offence. (1) When any person accused of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or inllrm persou accused of such an offence be released oa bail.' (bold added)

28.After a detailed study of the law on medical bail as enunciated by tJ-e superior judiciary in the case of Kiliayatullah V Federation of Pakistan (2017 P.CrJ) 192) this court came to the conclusion that the test for the grant of bail on medical grounds was laid down as long ago as 1995 by the Hon'ble Supreme Court in the case of Mohammed Yousafullah Khan V State (PLD 1995 SC 58) which in our view still remains good law, even after the later cases of Muhammed Saeed Mehdi V State (2002 SCMR 282) and Peer Mukaram Ul Haq V NAB (2006 SCMR P.1225l., where it was held at P.65 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 basls 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. The fact that the appellant is not suffering from any particular type of injury (as observed by the learned Judge that there was no fracture of bone in that case), would not be 4 ground either to refuse or grant the bail on medical ground. The correct crlteria for grant of bail to an accused in a non-ballable case, on medlcal ground, in our view, would be that the slckness or ailncnt with which the accused is suffering ls such that lt cannot be properly treated wlthln the premlses of Jail and that aome specialized treatmeat ls needed and his contlnued detentlon ln Jall ts llkelg to aJfect hls capacltg or ls hazqrdous to his lile1 (bold and italics added) 29. Thus, the test would therefore appear, in non bailable cases such as the instant case, to have the following limbs as set out + below all of which in turn the court would need to be satisfied of, based on the medical reports, before the Court before bail on medical grounds may be granted under the first proviso to 5.497 (1) Cr.PC based on the particular facts and circumstances of each case.

t6tlg

(a)the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and

(b)that some specialized treatment is needed aad

(c)his continued detention in Jail is likely to affect his capacity or is hazardous to his life,

30.In the linal analysis however bail on medical grounds is of a dlscretionary nature and it is up to the court whilst applying the criteria in Mohammed Yousafullah Khan'e case (Supra) based on the medlcal reports and based on the partlcular fiacte and clrcumstanceg of each case to determine whether bail on medical grounds should be granted.

Turning to the medlcal reports

31.At this juncture it may be mentioned that the petitioner had earlier applied for bail on merits and medical bail and had completed his arguments in respect of both aspects of the case. In the meantime however before announcement of the order the Hon'lcle Supreme Court in HRC No.4977 l2Ola (regarding reported shifting of accused of NAB Namely Sharjeel Inam Memon ? from Jail to Hospital) took up this issue and as such although we dismissed the petitioners bail on merits we restrained ourselves from making any findings on the aspect of his petition relating to medical bail as the matter was now subjudice before the Honble Supreme Court. The Hon'ble Supreme Court vide order dated 31- O3-2O18 after reviewing some tentative reports of a new medical board which it had established disposed of the matter and left the matter of the petitioners bail on medical grounds to be decided by the court of competent jurisdiction. Hence the petitioner has again approached this court for bail on medica-l grounds.

32.From the record it appears that the petitioner has been suffering from back problems for some time and the leaned counsel for the petitioner took us through some medical reports from the UK and Dubai concerning the petitioner's prior medical condition.

Thus, it would appear that the petitioner's condition has not been feigned.

k

t2

lo4

33.In essence the petitioner has three medical boards aJl duly constituted by the accountability court comprising Dr's from the JPMC which by and large confirm that he meets the requirements of medical bail.

3+. The flrst special medical board was held or.2O.|2.2OL7 at the Jinnah Post Graduate Medical Centre (JPMC) which opined as under:

Recommendations

A The facllities at JaiI Hospital, Karachi, are lnadequate for proper diagnosis/managernent and follow up of UTP SharJeel Inam Memon.

B Mr. Sharjeel Inam Memon needs multidisciplinary treatment ln terms of (neurosurgery/orthopaedlc/ physiotherapyf, periodic monitoring of liver en4ymes uric acid levels, radiologr examination, blood pressure monitoring, and further investigations (video monitoring EEG/ colonoscopy etc. ).

c (i) The power of dorsiflexors of (Rf foot) has deteriorated in L5 nerve root distribution which can further deteriorate. (bold added)

(ii)(iii) (iv)

+ (v)Therefore ln view of all the above he is unable to be managed at the Jail hospital and the board recommende proper medical treatment aad investigations at the hospltat (bold added) 35. The eecond medical board held on 15-01-2018 opined as under:

Recommendations

(a)He cannot be treated properly in jail hospital (b)There is already deterioration of his backache and weakness in his right lower limb.

(c)There is further risk of deterioration and he needs surgery.

36.The Report of the third medical board dated O6-O2-2OLa opined as under:

CONCLUSION

The overall condition of Mr. SharJeel Inam Memon remalns unsatisfactory aB there is a need for surgery ae soor aa possible fatling whlch he may suffer permanent disability on account of splnal pathology. Backache is stlll persistent and has not iiaproved medicatlon. (bold added)

,6fo

37.In the past we have expressed our doubts as to the veracit5r and reliability of some of the medical reports/material which has been placed before us in NAB cases where pre or post arrest bail is sought as it appears that in nearly every second NAB case the application for bail is on medical grounds (despite in many cases the petitioners appearing to be fit and well and regularly attending their offices until the NAB inquiry started) and the frle is filled with medical documents from almost every hospital in Karachi whether public or private. In fact such doubts and reservations concerning medical documents and opinions lead us to pass specific guidelines to the accountability courts hearing NAB cases under the NAO when dealing with accused complaining of medical ailments in our order in the case of C.P. No.D-6761 of 2017 Syed Ali Raza and others V Federation of Paklstaa & another (unreported) dated 28-12-2017 in this respect we set out below para's 32 to 34 of the aforesaid order.

32.On account of the above discussion, concerning jailed prisoners and tJle medical issues which they may have during their confinement in jail we consider it appropriate to set out some guidelines for medical treatment for those prisoners in jail in NAE! cases since a consistency in approach appears to be lacking and all prisoners suffering from any ailment must be treated t equally.

33.As such we hereby lay down the followlng guidelines (although flexible and trotr exhaustive as much will depend on the nature and seriousness of the particular illness and the particular facts and circumstances of each case) for all NAB cases which should be followed by the jail authorities, concerned Doctors, hospitals and accountability courts. (a)if an accused whilst in jail requires urgent medical treatment which cannot be provided within the jail premises and is potentially an immediate threat to his life the jail superintendent under signature of the jail doctor shall send the accused under guard to the nearest government hospital for his check up with intimation to the accountability court.

(b)the concerned specialist Dr shall then give a check up to the accused and shall return him to the jail premises under guard the next day if the check up finds no serious life threatening illness and such illness can be treated in jail premises with the appropriate medication. On return to the jail the superintendent shall immediately intimate the accountability court.,

t4

I o{l

(c)If however in the opinion of the Dr further tests etc are required the hospital may admit the accused and complete such tests within 7 days. If the results are similar to (b) above the hospital shall act in the same manner as per (b) above.

(d)If however, the concerned Dr is of the view that the illness is more serious the Dr. may under intimation to the jail superintendent and accountability court keep the accused under treatment and observation forafurtherTdays.

(e)After the expiry of this further 7 day period the hospital shall return the accused as per (b) to jail under intimation notice to the jail superintendent and the accountabilit5r court subject to (f) below.

(f)If, however after this further 7 day period, the Dr. is of the view that due to the serious nature of the accused ailment it is necessa4r for the accused to remain admitted in hospital he shall intimate the same to the accountability court setting out the nature of the illness.

(g)The accountability court shall then establish a medical board to assess the extent of his illness.

(h)An accountability court when establishing a medical board shall generally request the secretary health to t constitute a medical board consisting of the required experts in most cases from a Government hospital which will be directed through the order constituting the board to:

"give their independent expert opinions in respect of the given illness of the petitioner in black and white on the following two (2) aspects:-

(i)Whether the sickness or ailment with which the petitioner is suffering is such that it cannot be treated or cured inside the jail premises hospital and (ii)Whether the petitioner's continuous detention in jail is likely to aflect his capacity or is hazardous to his life

(i)In such cases the secretarSr health will be directed to constitute such a board within 5 to 7 days of the order of the Court and the board shall submit its + report to the Court within 15 days of its constitution.

O However in exceptional cases where the court is of the view that it would not be appropriate after recording reasons for a medical board to be constituted by the secretary health consisting of Dr's l5

la {Z from Government hospitals. For example, if the accused was deemed to be an influential person on account of his position, status in life, wealth, relationships with influential personalities etc the court shall be at liberty through exercising its discretion to constitute its own board of medical experts on the given illness from experts from non government hospital such as Aga Khan University Medical hospital, Liaquat National Hospital, South city Hospital, PNS Shifa etc from a list of Dr's \ provided by the NAB along with their expertise, experience and specialization from such hospitals having the required expertise or even from outside the province e.g. PIMS under the same terms of reference at the cost of the petitioner.

(k)In aly case if the court has any doubt or concerns or lack of clarity about the medical report so furnished it will be open to the court to call the members of the board to seek explanations and fully satisfy itself as to the its next course of action vis a vis the petitioners medical treatment/place of hospitalization which it shatl keep under review through calling for periodic reports on the petitioners medical condition.

0)If it is found that any Dr or hospital has filed an inaccurate, misleading incorrect or false report/opinion then that Dr/and or hospital shall be subject to the consequences under the law.

3+. By setting out the above guidelines, whlch we stress are flexible and non exhaustive, based on the particular facts and circumstances of each individual case it is hoped that only genuine sufferers of serious ailments will be hospitalized outside of prison based on the principles governing bail on medical grounds and that such relief shall be available to all those prisoners confined in jail with medical problems who meet the relevant legal requirements regardless of thelr atatus, standing or position in soclety or thelr llnancial mealrs.

38.However, after the Hon'ble Supreme Court took notice of the petitioners shifting from prison to jail in the a-foresaid HRC matter it established another medical board of Dr's from Punjab, Sindh and the military and thereafter on receipt of its report disposed of this matter.

+ 39. This report was not placed before us but based on the above circumstances, and our own guidelines as mentioned above, we considered it prudent to constitute a new medical board of 3 Dr's specializing in neurosurgery and neurolory from the Agha Khan University Hospital Karachi (namely Dr.Syed Ather Enam (who was t6

l o{3 also a part of the Supreme Court medical Board) Dr.Rashid Jooma and Dr. Sarwar Jamil Siddiqui who vide report dated 24-04-2018 opined as under:.

Opinion:

trIith reference to the two questions raised by thic Honourable Court in its Order dated 13tt f,pril 2O18, the Medlcal Board has opined:

)( a. On the basis of detailed history, a thorough neurological examination and the MRI films provided, the most likely diagnosis is musculo-skeletal back pain without signs of radiculopathy [nerve root compression]. Consewatiie treatment for paln relief includlng phystcal therapy is required at this polnt. There is no indication for surgical intervention such as discectomy or disc replacement surgery. trrhether the petltloaer car be adequately treated fur Jail would depend on the facilitles for paln theraples lncluding physical therapy available there and the Jail medical authorities could best provlde the laformation.

b. Regarding the second question, the board is of the opinlon that thts condition is not llfe-threatening aad ls aot llkely to cause dtsabtltty. The natural history of this kind of back pain is one of remission and relapse, meaning over a period of time, the pain will subside only to re-surface every now and again but overwhelming majority of patients continue to live active life with exercise, precautions (like avoiding handling of heavy weight and abrupt bending) and conservative measures." (bold added)

sd/- sd/- Syed Ather Enam, S.L Rashid Jooma MD, PhD (USA), FRCS (ire), FRCS (can, SN), MBBS (Ka!) FRCS (Edin) FRCS (SN) Diploma American Board of Neurological Surteons Professor of Neurosurgery Professor Neurosurgery & Chair, Department of Surgery Department of Surgery sd/- Sarwar Jamil Siddiqui MBBS (Ikrachi), MRCP(lreland),FRCP(GIasg) Assistant Professor & Section Head, Neurolory Department of Medicine.

40.It would appear that this report to a large extent contradicts the earlier reports vis a vis its findings and it would not meet the .t requirements of medical bail.

4L. As suggested however on ttre request of the counsel for the petitioner we referred the question raised in point (a) by the Board t4

t7

lo Stl to the jail medical authorities namely whether the petitioner can be adequately treated in jail bearing in mind the facilities for pain therapies including physical therapy available there.

42.In response to our query the jail medical authorities vide letter dated 30-04-2018 replied to the effect that they do not have the necessary facilities in order to treat the petitioner.

\ 43. We have also noted via a letter sent to the concerned accountability court on 30-04-2018 a report dated 21-04-2018 from the JPMC's Department of Physical Medicine and rehabilitation from Mr Muhammed Riaz Baig Chughtai who was head of the above department which reds as under:

"DEPARTMENT OF PHYSICAL MEDICINE & REHABILITATION

JINNAH POST GRADUATE MEDICAL CENTRE

KARACHI 75510 PHONE: 99201300 8x.2734,2465.

21$ April, 2018

Patient's Name Sha{eel Inam Memon Father's Name: Inam ul Haq.

Age: 48 years.

Diagnosis : Backache & C. Spcody

Patient is gettlng phyelotherepy trlce a day, but he is not responding well.

Therefore, he lg adtrlsed for 'Hydrotherapy' 3-4 tlmes a weak, hopefully it, may produce some good result.

sd/ 21.o4.20L8 M. Riaz Baig Chughtai B.Sc. BSPT MPTM SC (PT), PGO DPT (Post Professional, M. Phil (PT) Incharge Orthopedic Workshop J.P.M.C. Karachi."

44.At this juncture we would like to mention that after the case was reseryed for orders the petitioner frled an application in his own name in effect challenging the opinion of the medical board constituted by this court in effect stating that he was not examined properly; that the board had already made up its mind against him and in particular two of its members were not reliable citing reasons. He made the following prayer:

{ "It is, therefore prayed in the interest of justice that this Hon'ble Court may be pleased to disregard the report of the Agha Khan Board and decide the bail application on the basis of detailed past history including report from 2015 onwards from the UK, UAE, South City Hospital, Karachi, JPMC and three detailed reports of the earlier Board which were never objected to by any party/Nab or may be pleased

I ori

to constitute another Board to examine the petitioner and submit its report.'

45.At this belated stage, we do not consider it appropriate or justihable at this point in time to set up a third medical board. The reason being that in our view if the petitioner had any doubts about the composition of the Board established by this court then such doubts along with reasons should have been brought before this court a few days after the board was established by this court. t If the petitioner also at the time of examination considered his examination inadequate or based on pre conceived notions he should again also have brought this to the attention of this court promptly. However the petitioner chose to remain silent on both aspects until the finding of the board was known. Had the Board found in his favor the petitioner would almost certainly neither have challenged its composition nor its findings. Also at this stage to establish yet another medical board may lead to a never ending saga of medical boards being set up with either the NAB or the petitioner challenging both the composition and the findings and as such his application is dismissed.

46.We thus find ourselves in a situation where 3 medical boards of reputed Dr's in their field of JPMC suggest that the petitioners condition entitles him to bail on medical grounds as per the settled law and a yet another medical Board established lastly by this court comprising of all private Dr's which suggests that the final limb of the legal test for medical bail has not been met. Namely, the board is of the opinion that the petitioner's condition is not life- threatening and is not likely to cause disability.

47.What does seem to be clear however is that (a) NAB has not objected to the JPMC's medical boards or their findings and their members have give personal affidavits as to the correctness of their findings.(b) NAB has no objection if the petitioner remains in hospital for his treatment but should not be released on bail (c) that the petitioners treatment cannot be carried out within the jail premises (d) it cannot be said with certainty that the petitioners back problems may not effect his capacity as 3 reports to one suggest that it may with the later report from the JPMC suggesting surgery (e) we are not doctors and are under a duty to ensure that the petitioner does not suffer any perrnanent disability because of a lack of treatment (Reliance is placed on Imtiaz Ahmed V State b t9

t6{6 (2017 SCMR 1194) but at the same time not to open the floodgates to bail on medical grounds to all persons in jail through potentially dubious and engineered medical reports.

48.We have therefore sought a middle ground based on all the competing medical information before us.

(al We do not consider that the petitioner has made out a case + for the grant of bail on medical grounds and as such his petition for bail on medical grounds is dismissed.

(b)Due to the petitioners past medical history his ailment does not appear to be feigned. We note that it appears to be the agreed position by all boards that the petitioner needs physiotherapy.

(c)That according to the JPMC he needs physiotherapy 2 X's a day and now hydrotherapy 3 to 4 times a week and that hydrotherapy is not available at JPMC.

(d)That according to the JPMC and as conhrmed by the Jail authorities the physiotherapy and hydrotherapy which the petitioner now needs is not available in the jail hospital. {e) Thus, although the petitioner be returned to jail when so advised by the jail doctors he may be taken under guard from the jail to a hospital of his choice in Karachi where the required physiotherapy and hydrotherapy whichever the petitioner needs shall be provided to him at his own expense and then returned to jail after each treatment.

49.In sunnrary.

1.Petitioners Muhammad Hanif and Asim Amir Khan Sikander are both granted post arrest bail subject to them each furnishing one solvent surety in the sum of RS 1.5 M (15 lacs) and PR bond in the like amount to the satisfaction of the Nazir of this court.

2.Petitioner Syed Masood Hashmi's petition for post arrest bail is dismissed.

3.Petitioner Sarjeel Inam Memon's petition for post arrest bail on medical grounds is dismissed however he may be taken to hospital for specialized treatment as and when advised by his Dr's in accordance with para 48 of this order.

E

,w \L.\-o5" 2g