ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. D – 546 of 2014

Date	Order with signature of the Judge

Present : Mr. Justice Muhammad Ali Mazhar

Mr. Justice Abdul Rasool Memon

Sikandar A.Karim v. Chairman, NAB

& another

28.02.2014 :

Mr.Farooq H. Naik and Ms.Shazia Hanjrah, Advocates for the petitioner.

M/s.Amjad Ali Shah, DPG NAB and Zamin Hussain Mirza, Special Prosecutor NAB.

Mr.Asif Hussain Mangi, Standing Counsel.

------------

Muhammad Ali Mazhar, J. The brief facts of the care are that NAB Reference No.28/2002 was filed on 09.04.2003 against Javed Iqbal Ansari and 44 others. Later on, the learned Trial Court bifurcated the NAB Reference No.28/2002 into four NAB References vide order dated 28.09.2005 bearing NAB References No.28-A/2002 to 28-D/2002. The Reference against the present petitioner is 28-C/2002. It is further stated that the petitioner is a chronic heart patient and in the year 2010, he filed CP No.D-3214/2010 in this court to challenge the order dated 22.10.2010 passed in his Reference, whereby the order of exemption from his personal appearance was withdrawn. The learned Division Bench of this Court disposed of the said petition on 10.05.2011. The operative part of the order is reproduced as under :-

“……………. Although we are setting aside the impugned order but we are directing the Pakistan High Commission in South Africa to either constitute a medical board or appoint a very well known and experienced Cardiologist of their choice to examine the petitioner and submit a report about his medical condition to the High Commission including his opinion as to whether the petitioner is fit to travel or not. The cost of medical examination shall be borne by the petitioner. The petitioner is directed to cooperate with the Pakistan High Commission. This exercise of medical examination of the petitioner should be completed within 15 days from the receipt of the order of this Court by the Pakistan High Commission which will be sent by the NAB Authorities to Pakistan High Commission.”

2. On the basis of aforesaid findings recorded by the learned Division Bench of this Court, the medical examination of the petitioner was conducted and the report was submitted accordingly. Now the Accountability Court-I, Sindh Karachi has passed the order dated 17.12.2013 which has been impugned through this petition. The impugned order was passed on an application dated 23.09.2010 filed by the Special Prosecutor NAB for recalling the order dated 22.11.2008 passed by the said Court through which the exemption was granted to the petitioner Sikandar A. Karim from his personal appearance for a period from 6 to 8 months. This application was disposed of with the directions to issue summons to the accused to appear on 18.01.2014 in the court.

3. The learned counsel for the petitioner Mr. Farooq H. Naik argued that the condition of the petitioner is still not stable who is a chronic heart patient and keeping in view his health condition, he would not be able to travel to cause his appearance in the Accountability Court-I for joining trial. He also pointed out the findings of the learned Accountability Court-I, Karachi in the impugned order, which reads as under:-

“The perusal of the medical report as reproduced above it is evident that out of 4 doctors, 2 doctors namely Dr. Ashwin Valjee and Dr. Krysztofiak have advised the accused to avoid from air travel and whereas the remaining 2 doctors namely Dr. F. I. Tayob and Prof. A. S. Mitha have opined that accused was having a normal heart, normal B.P. and ECG, and there was no specific observation of these both doctors about the accused that he may avoid any air travel. It is also needless to say that the 2 doctors who advised the accused to avoid travel had examined the accused in the month of November 2011 and now it is running 2014. Therefore, the opinion of these two doctors which was given by them in the year 2011 cannot be considered to be effective for the accused who otherwise has been opined by remaining two doctors to have a normal heart and health.”

4. On the strength of aforesaid findings, the learned Trial Court observed that no further exemption can be granted and the earlier exemption granted to the petitioner expired in the month of July 2009, hence he directed the accused to join the trial.

5. Mr. Farooq H. Naik learned counsel for the petitioner argued that the basic findings of the learned trial court makes it abundantly clear that the exemption was withdrawn only for the reason that it was based on 2011 medical report/examination in which two doctors opined that petitioner had normal heart, normal B.P. and ECG, so in order to remove all doubts as regard to the health condition of the petitioner, the learned counsel suggested that in terms of earlier order passed by this court on 10.05.2011 in CP No.D-3214/2010, a fresh medical board may be constituted.

6. Mr.Amjad Ali Shah, learned DPG NAB conceded to and endorsed his no objection to this proposition/proposal. He is also of the view that till the medical examination is conducted and report is received to the NAB Authority/Trial Court, the personal appearance of the petitioner may be dispensed with before the Trial Court. He further argued that the petitioner may apply again to the learned trial court for seeking exemption in view of the fresh medical report of his medical examination, if any, and the fate of such application will be decided by the Trial Court in accordance with law.

7. By consent, the impugned order is modified to the extent that the personal appearance of the petitioner shall be dispensed with before the trial Court till such time his medical examination is conducted and medical report is submitted before the NAB Authorities/trial court and in view of the medical report the petitioner may apply for exemption from his personal appearance through his counsel, which application will be decided by the Trial Court expeditiously. It is further ordered that the medical examination will be conducted and completed within a period of one month from the receipt of this order. The Pakistan High Commission will make necessary arrangements for constituting medical board and medical examination in South Africa as done earlier and the report shall be submitted by the High Commission of Pakistan (South Africa) to the NAB Authorities within 15 days from the date of receipt of medical report. In the report clear opinion and findings shall be given whether the health condition or the ailment/disability is so serious due to which the petitioner would not be able to travel to Pakistan and cause his personal appearance before the learned trial court. All other terms and directions of medical examination of the petitioner will remain intact as had already been ordered by this Court earlier in CP No.D-3214/2010 on 10.05.2011. The copy of this order will be sent by NAB Authorities to the High Commission of Pakistan for compliance. The petition is disposed of along with listed application in the above terms.

Judge