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Petitioner: Syed ALI RAZA and others VS Respondent: FEDERATION OF PAKISTAN through Secretary Ministry of Law, Islamabad and others
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title:Syed ALI RAZA and others vs FEDERATION OF PAKISTAN through Secretary
Ministry of Law, Islamabad and others Case No.: C.Ps. Nos, D-6761, D-6502, D-6705 and 6956 of 2017 Date of Judgment:2017-12-28 Reported As: 2019 YLR 129 Result: Petitions dismissed Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---Through these petitions, petitioners 1, 2, 3 and 4 (Syed Ali Raza, Zubair Ahmed, Muhammad Waseem Khan and Muhammad Imran Butt) all former or current officers of the National Bank of Pakistan (NBP/the Bank) seek bail after arrest in National Accountability Bureau (NAB) Reference No,13 of 2017 which was filed against them all by NAB for acts of corruption, whilst working for the NBP, under the National Accountability Ordinance 1999 (NAO).There petitions, along with others, for pre arrest bail were dismissed by this Court vide consolidated order dated 27-09-2017 hence there petitions for post arrest bail. 2. The charge against the above named petitioners as enumerated in Reference No,13 of 2017 are that the investigation revealed that accused No,1, Ali Raza Ex-President of National Bank of Pakistan (NBP/the bank), misused his authority in connivance with other accused persons, so as to gain benefits and / or favour for him or to other persons and also willfully failed to exercise his authority to prevent the grant of undue favour to the other accused persons. He, being Bank President, misused his authority and issued certain orders whereby granted undue concessions and /or benefits and also failed to exercise his authority to prevent the grant or rendition of undue benefits and /or favours, in connivance with other accused persons consequent thereto a loss of approx US$185 million had been caused to NBP during years 2001-2012. 3. The investigation revealed that petitioner/accused Zubair Ahmed the then SEVP/Regional Chief Executive (now retired), misused his authority and sanctioned loans through the NBP branches in Bangladesh in violation of Bangladesh (Central Bank) laws, rules and regulations and NBP's own policies with mala fide intention to cause misappropriation of the funds of the National Exchequer.
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4. During the course of investigation, it was revealed that the petitioner/ accused Muhammad Wasim Khan, being Manager, Gulshan Branch, Bangladesh failed to carry out his responsibility to keep comprehensive check and balance in the branch rather he became instrumental and acted to benefit the defaulted parties. As General Manager (Acting) and in connivance with accused No,9, Muhammad Imran Butt, he sanctioned large number of L/Cs to Cotton Corporation Group beyond his discretionary power and without observing rules and regulations of bank's policy and procedure. This caused further loss to the bank for about BDT, 3.200 Billion. Hence he committed offence of misuse of authority as Acting GM, NBP Bangladesh. 5. Allegation against petitioner / accused Muhammad Imran Butt, being Regional Chief (RCE) (Acting) and having full information of Bangladesh debacle. He misused his authority and failed to take any notice that an amount of approximately BDL 2.4 Billion was sanctioned to various parties including Cotton Corporation Group in the branches of Bangladesh Operations without observing the rules and regulation of the Bank of Bangladesh (Central Bank) and Bank's own policies. Many serious lapses were reported to him as Acting RCE but he failed to take any concrete action to safe guard the bank's interest. He failed to stop accused Muhammad Wasim Khan from sanctioning loans beyond his powers and in some instances he jointly with accused No,8, Waseem Khan approved loans beyond his discretionary powers and without obtaining appropriate security to safe guard the bank's interest. This act on his part caused further loss of BDT 3.200 Billion to the bank as bad loan. Hence he committed offence of misuse of authority as Acting REC, NBP, Bahrain. 6. Learned counsel for petitioner No,1 Syed Ali Raza submitted that he has applied for post arrest bail on both medical grounds and merits. With regard to his medical condition he placed reliance on reports in connection with his cardiac and mental health conditions, which according to him entitled him to bail on medical grounds. He emphasized that the cardiac report needed to be read together with the psychiatric report as according to the petitioner his continued confinement would lead to the worsening of his cardiac condition. He also placed reliance on the following authorities. (1) Haji Mir Aftab v. The State (1979 SCMR 320), (2) Malik Muhammad Yousufullah Khan v. The State and another (PLD 1995 SC 58), (3) Maqsood v. Ali Muhammad and another (1971 SCMR 657), (4) Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546) and (5) Mawasi Khan v. The State (1969 SCMR 289) and Mian Manzoor Ahmed Watto v. State (2000 SCMR 107). 7. With regard to merits he submitted that that he was completely innocent of any wrong doing; that there was hardly any material to connect him to the commission of the offense; that NAB had no jurisdiction to file a reference in this case as it had not sought the permission of the Governor of the SBP to do so under section 31(D) NAO which was a mandatory requirement; that the petitioner did not either misuse his authority or fail to exercise authority in connection with the affairs of the Bangladesh operations; that the petitioner had no idea that any illegalities were being committed in the Bangladesh operations; that the petitioner did everything within his power to safeguard the interests of the bank; that there are only suspicions against him which cannot take the place of solid material; that any financial wrong doings in Bangladesh were not brought to his attention; that it was a case of pick and choose; that the statement of Syed Shahid Hussain Gadezi exonerated him of any wrong doing; that it was not unusual to retain persons posted overseas for more than 5 years and thus it was a case of further inquiry and for all the above reasons he should be granted post arrest bail on merits. 8. Learned counsel for Petitioner No,2 Zubair Ahmed submitted that he was completely innocent of any wrong doing; that there was no material to connect him to the commission of the offense; that he was the original whistle blower; that Mr. Gopang should have been made an accused rather than a PW and as such he had been discriminated against; that he was an old man of 70 years of age and thus for all the above reasons he should be granted post arrest bail. 9. Learned counsel for petitioner No,3 Muhammad Waseem Khan submitted that he was
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completely innocent of any wrong doing; that there was hardly any material to connect him to the commission of the offense; that the only material against him was a supplementary statement by Mr. Gopang which was recorded after delay of around one year and 18 months; that any loans he had sanctioned was done strictly in accordance with the law, rules and relevant procedure and thus for all the above reasons he should be granted post arrest bail. 10.Learned counsel for petitioner No,4 Imran Butt submitted that he was completely innocent of any wrong doing; that there was no material to connect him to the commission of the offense; that he was a junior officer and as such his case is on a better footing to that of petitioner Zubair Ahmed; that he only remained in charge for 9 months after petitioner Zubair Ahmed left his position; that it was the responsibility of the committee headed by Tahir Yaqub which had been appointed by the President of the NBP to look into the affairs of the Bangladesh operations and not his; that it was a case of further inquiry and thus for all the above reasons he should be granted post arrest bail. 11. Learned senior prosecutor for the NAB opposed bail on medical grounds to petitioner No,1 Syed Ali Raza as in his view the medical reports did not meet the legal requirements for the grant of bail on medical grounds primarily because the petitioner as revealed by the medical reports could be adequately treated within the jail hospital for his various ailments. In support of his contentions he placed reliance on The State v. Haji Kabeer Khan (PLD 2005 SC 364) and Khalid Humayun v. NAB (PLD 2017 SC 194). He also vehemently opposed all post arrest bail applications on merits and contended that there was sufficient material on record to connect all the petitioners to the offense for which they had been charged and in this respect took us through some relevant documents, section 161 statements and the findings on merit which had already been made in this court's order dated 27-09-2017 dismissing the pre arrest bail applications of the petitioners. With regard to petitioner No,1 Syed Ali Raza he stressed that in actual fact the statement of Syed Shahid Hussain Gadezi actually went against the petitioner and was in favour of the prosecution. Thus for all the above reasons he submitted that the post arrest bail applications of all the petitioners should be dismissed. 12. We have heard the parties and have carefully gone through the record and considered the medical reports and various authorities relied upon by the parties in the light of the particular facts and circumstances of this case. 13. We would also like to make it clear that the findings in this order are only based on a tentative assessm ent of the material available on record and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court. General 14. At the outset, as we have done before in other similar NAB cases, we observe that cases of white collar crime are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be viewed in a holistic manner and not in isolation. This is because in most cases the offence could not be committed without the active involvement of all the accused in the chain of events which lead to the commission of the offense. However, notwithstanding this observation it is settled law that in cases of bail each of the accused needs in some way to be connected with the alleged offense and in the case of non-bailable offenses such as this there are reasonable grounds for believing that the accused is connected with the commission of the offense for which he is charged. 15.The current case, as with many NAB cases, is more a case of a joint criminal enterprise whereby every accused plays their role in order to achieve a criminal object all of which they were aware of and could not have been achieved without the active participation of all involved, resultantly a colossal loss to the tune of $185 million was caused to NBP. 16.For offenses of corruption charged under the NAO (white collar crimes) the Hon'ble Supreme
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Court in the recent case of Rai Mohammed Khan v. NAB (2017 SCMR P.1152) has emphasized that the grant of bail in such cases must be construed strictly and rigidly even if, as in that case referred to above, the amount involved was on the lesser side being only approx RS 12M (as opposed to millions of $US as in this case) in the following terms at P.1154 para 7; "Under the principle of law and justice, each bail petition is to be decided on its own merits and the law applicable thereto, however, this Court cannot remain oblivious of the undeniable fact that the tendency of corruption in every field, has become a threatening danger to the State economy, striking on its roots. The public money, allocated for social sector and economic well being of the poor people, is consistently embezzled / misappropriated at a large scale and why the majority of the population is deprived of essential daily utilities, like pure drinking water, health care and education facilities, etc. It has become the foremost obligation of each and every institution, including the Judicator, to arrest this monster at this stage, before it goes out of proportion, posing threat to the very survival of the State and State economy, therefore, the Courts shall apply the Anti-Corruption laws somewhat rigidly, once in fact the case is made out, at bail stage, against the accused person. Distinction, however, is to be drawn between the ordinary criminal cases and of corruption on the above analysis and grounds, while dealing with bail matter to an accused person, charged for such like crimes and also at the time of conviction, once the case is proved against him then, Courts are not supposed to show any mercy by taking a lenient view in the matter of sentence." Turning to the case of petitioner No,1 Syed Ali Raza in connection with his petition for bail on medical grounds. 17.In the case of Kifayatullah v. Federation of Pakistan (2017 PCr.L.J 192) which fully considered the law of granting bail on medical grounds as per the earlier and latest decisions of the superior courts, when dealing with the question of medical bail and the difficulties in obtaining accurate and reliable medical reports this bench of this court observed with great concern as under at Para's 29 to 31. "29. In determining whether an accused is genuinely entitled to bail on medical grounds under the law is often a difficult decision for the Courts to make in our particular environment. We have observed on numerous occasions that a number of people who were quite fit and healthy and attending their offices before being involved in a NAB inquiry all of a sudden became quite unwell and often required hospitalization for various ailments which were either not present before or at least did not seem to trouble them unduly in their every day life prior to the NAB inquiry. 30. In this respect it is observed with great pain that from time to time the Courts do not appear to receive either entirely reliable or accurate medical diagnosis' or prognosis' from the concerned Doctors notwithstanding their Hippocratic oath, expertise, experience and good standing in society. Under these circumstances we consider that the Courts need to be cautious in granting bail on medical grounds especially if it would disrupt the whole trial process through long delays and thereby in itself lead to the ends of justice being defeated especially in cases such as this where there are many accused. It appears to us that a balance needs to be struck between taking a humanitarian approach in accordance with the law and ensuring that the Courts are not duped into granting bail on account of sickness/ailment where one of the main objects behind the application is to delay and disrupt the trial to the benefit of the accused and to the detriment of the prosecution as opposed to genuine health reasons. 31. It would seem to us that the safest course in such cases is for the Court to convene a medical board with the specific terms of reference to opine (a) whether 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) whether some specialized treatment is needed and (c) whether the persons continued detention in jail is likely to affect his capacity or is hazardous to his life. Such opinion on these
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aspects would greatly assist the Court in determining whether bail on medical grounds may be applicable in the given case depending on its particular facts and circumstances". 18. Regrettably a year and a half after the passing of this order the position generally remains the same. Namely, that if you are a wealthy and/or influential person/accused you can generally obtain medical certificates/opinions to meet your requirements in order to enable you to be transferred from prison to hospitals outside of the jail premises where you can enjoy much better facilities such as free access to mobile phones, air conditioning, cable television, better food, unlimited visitation rights, a greater level of freedom of movement within the hospital environment etc with the knock on effect of often delaying the trial due to your non appearance to the disadvantage of those who are locked up in jail whose bail has been declined. On a brief review of those accused who are confined in outside prison hospitals in Karachi in NAB cases it appears that there are 4 such accused; the petitioner No,1 (former long term (almost 11 years) President of NBP, two Additional Inspector General's of Police and a sitting MPA. Not a single poor or un influential prisoner is in hospital outside of jail. This in our view tends to point prima facie to discrimination under Article 25 of the Constitution and is a poor reflection of the Dr's and medical boards who are tasked with making honest and accurate assessments of a prisoner's health who claims to be unwell. 19.Of course if a prisoner needs to be treated in an outside Government Hospital on genuine medical grounds this is his right as enshrined in Article 9 of the Constitution and it must not be denied to him provided that he meets the legal requirements of medical bail. Namely, (a) whether 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) whether some specialized treatment is needed and (c) whether the persons continued detention in jail is likely to affect his capacity or is hazardous to his life. Or if he requires a few days emergency treatment which cannot be provided within the jail premises he may be taken for the required treatment and then returned to jail. 20.In our view, the current case of petitioner No, l's application for bail on medical grounds appears to be a classic case of the petitioner attempting to engineer a medical board in his favour so that he could avoid being sent to prison and instead be sent to a hospital outside of the jail. Hearings in the pre-arrest bail case of the petitioner continued for a number of weeks and the petitioner was busy moving around the court and instructing his counsel without any impediment. He never during his submissions made any reference to any illness that was at that time causing him any difficulty. However, when his pre-arrest bail was recalled he surrendered to NAB, he was produced before the accountability court the next day and on his counsels own admission without spending a single day in prison he was sent as an emergency case to the National Institute of Cardiovascular Diseases (NICVD) who also referred him to the Department of Psychiatry and Behavior Sciences Jinnah Post Graduate Medical Centre (JPMC) where he was seen by a Professor of Psychiatry who gave a one page expert opinion opining that petitioner No,1 was a suicidal risk on 02.10.2017. It then seems that on the next day i,e, 03.10.2017 petitioner No,1 was taken back to the NICVD where quite illegally without any court order a senior Professor of cardiology constituted a medical board for 2 days later. On 05-10-2017 it appears that the medical board consisting of senior cardiologists of petitioner No, l's choice was constituted (all of whom were Professors or senior Dr's of cardiology of NICVD which is a government hospital). This medical board had no specific terms of reference but was simply constituted to examine the petitioner. It followed the opinion of the JPMC psychiatrist who was not a member of the board, recognized that the petitioner had had a heart condition in the past and since he was complaining of chest pains he should undergo a Myocardial perfusion scan to assess his symptoms and risks of further cardiac events. Since this time petitioner No,1 has remained in Hospital outside the jail. Interestingly none of these alleged illnesses were raised during the petitioners pre arrest bail
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hearing. The petitioner then applied for bail on medical grounds based on the above reports. A so called fait accompli. When counsel was asked under what lawful authority such boards had been constituted he produced a number of authorities on reports of medical boards however in all such authorities the medical.. board had been constituted either on the orders of the trial court or of the High Court and not by any other authority and as such were of no assistance to him. Under these circumstances where the medical boards were constituted without the knowledge of the trial court let alone pursuant to an order to constitute such a board we find that this medical board to have been illegally constituted and most probably engineered by the petitioner to achieve the desired result. Thus we were of the view that these medical reports were of no legal value and could not be safely relied upon. 21. This is not a common problem being faced by the Courts as alluded to earlier in the case of Kifayatullah (Supra). In one pre arrest bail petition before this bench a petitioner from Lahore who had been regularly attending the bail hearings relied on medical certificates to justify his absence once his part of the bail hearing was over and when his bail was recalled despite orders of this court to be present on the next date when the order was announced he remained absent and was not even in the hospital where he was allegedly admitted on the basis of medical reports or at his house on bed rest when his arrest was sought to be made. Instead he had absconded and went underground and thereafter approached the Hon'ble Supreme Court for bail on merits. 22. The accountability courts have no power to grant bail to any accused since offenses under the NAO are non-bailable. It appears therefore by using such tactics the accused /prisoner by remaining for months on end in hospitals outside of jail is circumventing the settled principle of law that what cannot be done directly cannot be done indirectly. In essence, without duly constituted medical boards accused/ prisoners in NAB cases are remaining in hospitals out side of jail for months on end and are in effect on medical bail except confined to a hospital outside of jail which as discussed earlier has much better personal facilities. We will return to this aspect of the case later in this order. 23. In the light of the above background this court attempted to obtain honest, accurate and reliable medical reports in respect of the cardiac and mental health issues of the petitioner, and with the consent of his counsel, constituted a medical board by our order dated 23.11.2017 which sated as under: "By consent a Medical Board is hereby constituted comprising (i) Professor Riffat Moazzam (Psychiatry) of Aga Khan University Hospital, Karachi, as Chairman, whereas Professor Khawar Abbas (Cardiologist), AKUH and Muhammad Isha (Cardiologist) AKU as members of the Board. The above Board shall thoroughly examine the petitioner at Aga Khan University Hospital, Karachi, and carry out all necessary tests in respect of cardiology and mental health issues of the petitioner. The Chairman of the Board shall give her independent expert opinion in black and white on the following two (2) aspects:-- (a) Whether the sickness or ailment with which the petitioner is suffering is such that it cannot be properly treated or cured inside the jail premises hospital and (b) Whether continuous detention of petitioner in jail is likely to affect his capacity or is hazardous to his life. Likewise, Professor Khawar Abbas and Muhammad Isha shall also give their respective independent expert opinions in respect of cardiac issues, if any, faced by the petitioner in black and white on the following two (2) aspects:- (a)Whether sickness or ailment with which the petitioner is suffering is such that it cannot be treated or cured inside the jail premises hospital and (b)Whether the petitioner's continuous detention in jail is likely to affect his capacity or is hazardous to his life"
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24.Learned counsel for petitioner No,1 did not raise any objections to the constitution of this board and rather expressed his satisfaction with its composition and its terns of reference. 25.The findings of the Board with respect to the cardiac condition of the petitioner are reproduced as under: Khawar Kazmi Professor of Medicine (Cardiology) Aga Khan University Hospital Karachi Dated:08.12.2017" "a) His sickness/ailment can be managed within jail premises hospital. b) There is a risk of worsening of his coronary artery disease as stress and improper diet can not only lead to progression of disease but also increases the risk of acute event e.g. Acute Myocardial infraction. (bold added) Sd/- Dr. Muhammad Ishaq Consultant Cardiologist The Aga Khan University Hospital Karachi Dated:8-12-2017 a) There is no need for hospitalization at present and he can be managed in the current setup provided he takes his medications regularly. (bold added) b) Since he is a cardiac patient his symptoms and in fact the disease may progress under a state of stress and in appropriate medications and faulty diet.…
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