Fareed Ahmed Yousfani (Petitioner) VS NAB (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

Beforgl.'

Mr. Jq,strce Ahmed Atr M. Shaikh, C.J, Mr. JuStice Mohan:med Karim Khal Agha, J Constitution petttlon.No, q.nd nqsne of petitioner with counsel. along

C.P.No.D-4S 17 of 2OtZ Fareed ,rhmed yousfani

V NAB

through its Chairman & olhers.

Fareed Ahmed yousfani S/o Ghular,-r Harder yousfani through Barrister Mohsrn Shah*.",L, Aauocat..

Counsel for the Respondents,

Mr. Mohammed Altaf: Specral prosecutor, NAB, Date of Hearing: 3O-11_2O1Z

Date of Order: 05_12_2017

ORDER

Moham med K anm Khan A ha, J. Through thrs petrtron, the petttioner Fareed Ahmed yousfanr seeks post arrest ball on medical grounds in Reference No.27 l2Ol5 whrch 1s proceedrng belore Accountabihty Ccurt II at Karachr.

2.Bnef facts of the case a.r,: that rhe petitloner is nominated accused in Accountabrl:t_1..pggs16n ce No.27 relatrng to btfurcation of large aucrion plots fraudulently on forged papers r.vithout due approval of the competent attthontv r,vhich caused a huge loss to the pubhc exchequer. In parttcular the rnvesrigarron rer ealed thar the petitioner Fareed Ahmed Yousfanr e-r-pro.;ec: Drrecror LARp (accr-rsed No.1) u'as in\roh,ed rn lorgoing and j-abrtcatlng a mlnute sheet through forged/false srgnarures of Roshan Sherkh, the then .t DCO Karachr to seek changes rn aplroved plant-ring ln respect of large auction plots, r,l,hich \[,cre € a_rmarked to be auctioned rhrcugh a mirrrmum reser\/e prrce of Rs.50,00O per sq. yds. Thts n-as done to rllegall,l' allot rhes: plots in the shape of 32 sq. -vds. plots rn Sector 1 Lrnes A:.ea, the purported mlnute :i'ect never exrsted rn the record In addrtion to this, the accr-rscd \o 1 srgned allotment orCsrs rn the shape of 32 sq

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yd. plots which were carved out from the large reserved auction plots. As a result of this misuse of authorit5r in connivance with other co-accuSed the aforesaid reference was

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filed against the petitioner and other co-accused by National Accountability Bureau(NAB) under S.9 of the National Accountabiiity Ordinan;e 1999 (NAO) for the offense of corruption and corrirpt Oractices.

3.Learned counsel for the petitioner submitted that the petitioner was seriously i11 dnd was entitled to bail on medical grounds and in this respect placed reliance on a report of a medical board dated IS-LL-2OLT which had been constituted on the orders of the accountability court.

4.On the other hand the Special prosecutor NAB opposed the grant of bail to the petitioner on medical grounds as according to him the petitioner,s case did not meet the legal requirements to justify the grant of bail on medical grounds.

5.We have considered the submissions of the parties, reviewed the report of the medical board assisted by its members and considered the relevant case law.

6.It is now settled law since the case of Mohammed Yousafullah Khan V State (pLD 1995 SC 58 Relevant p.65) that the test for the grant of medical bail 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 with which the accused is suffering is such that it cannot be properly treated while in custody in Jai1. The fact rhat the appellant is not suffering from any partrcular type of injury (as observed by the learned Judge that there was no fracture ol bone rn thal case), rvould not be a ground either to refuse or grant the bail or-t medical ground. 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

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a some specialized treatment is needed and his continued detention in Jail is likely to affect his capacity or is hazardous to his life". (bold addedl

7 . The test would therefore appea-r, 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 can be granted under the first proviso to S.497 (1) Cr.PC

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

(b)that some specialized treatment is needed and

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

B. In the instant case a medical board was established pursuant to the orders of Accountability Court II at Karachi which on l5-lI-2O17 opined as under in respect of the medical condition of the petitioner.

NO.F.2- I 2/20 1 7-GENL-K/4399/JPMC

GOVERNMENT OF SINDH

JINNAH POSTGRADUATE MtrDICAL CENTRE KARACHI.755 iO.

The Superintendent Dated the 15l lI /2017 Central Prison Karachi.

Subject: Minutes of Medical Board of accused Fareed Ahmed Yousufani S/o Ghulam Haider Reference No.27l2O15 Ref:- AS/ MED /Med-Trt/ 32O66 / 67, dated 28.10.2O 17.

A meeting of the Medical Boa;d of accused Fareed Ahmed Yousufani S/O Ghulam Haider was held on 3rd November, 2Ol7 in the Committee Room No. I Administration Block JPMC Karachi. The following consultants attended ihe meeting.

. Prof. Khalid Sher Chairman . Prof. Tariq Ashra-f, NICVD Member . Dr. Nousheen Ahmed Member . Dr. Naseem Ahmed Member

q sra u t Dr. Yahya Khan Tunio Sccretary

H/O: Diabetes, Hypertensron, Non smoker iurd Angioplasty done in 2O 15 at NICVD.

Diagnosed case of obstructive sleep apnea.

C/O: Exertional dysponea day time sleepiness ar:d \umLrness in legs:

Patient taking following treatment:

Tab: Coplalx Tab: Concor 5mg Tab: Sert 50mg Tab:So1\'asc lOmg Tab: Lipiget 10 mg Tab: Daonil 5 mg Tab: Glucophage

850 TDS.

On examination:

Medical Board examined the patient and reviewed available medical record.

BP:160/90 mm Hg Pulse:73 min, Saturation 98/ and Bilateral pedal edema present.

Cehst: Bilatera-l normal vesicular breathing no added sound CVS: No signihcant finding or Higher mental functions normal cralial nerves intact. Motor system: Depressed reflexes in lower limbs with down going planters. \ There was subjective complaint of sensory impairment in stocking distribution. He was found to have ataxia upon Romberg testing wrth down going plarrters,

Advice:

>Continue above mentioned medicines CPAP therapy AS already prescribed >Percent tha.llium X Ray PA view

>ABG'S EMG / NCV

to rule out poly radiciuo & neuropathy

He is further advised to consult General Physiciar and neurosurgeon to rule out diabetic complications and for evaluation of Lumbosacral Spine.

sd/- Dr. Yahya Khan Tunio Deputy Director Copy forwarded for information and necessa4/ action to the Honorable Judge, Accountability Court No.ll, Karachi.

9.After carefully considering the medical report this court was unable to fu11y ascertain whether or not the petitioner met the legal requirements for bail on medical grounds. As such we called the medical board on 3O-ll-2O17 and asked them whether the legal requirements as set out in Mohammed Yousafullah Khan's case (suPra) had been met as per their report.

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10.The board informecl us that as per their medrcal report although the petitioner ri,as agecl arld was sufferrng from a number of allments at the time of examination he could be adequately treated in jail hospttal and that his contrnued detentron rn jarl r,vould not be hazarclous to hrs hfe.

11 I(eeping rn vie*' the report cf rhe medrcal board and therr clarrhcattons in our t.tew the petttioner has not been able to meet the legal requrrements to.lustrfy the grant of bail on medrcai grounds and as such hrs petitron is dismrssed and the petrtioner is ordered ro be returned forthrvith to jarl.

\2. A cop). of thrs order shall be tran smitted to l ail Iiarachr and the concerned sup enntend ent central Accountabrlrty Court for rnformatron and compLance.

13.These are the reasons for our sitort order dated 30_11_ 2O 17 rvherebv the petrtron rvas drsmrssed.

JUD

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CII]EF JUSTICE

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