Dr Asim Hussain granted bail – finally

SHC bench bails out PPP leader based on opinion of referee judge

KARACHI: Former petroleum minister and PPP leader Dr Asim Hussain was finally bailed out on Thursday in two multibillion-rupee corruption references filed against him by the country’s top graft buster.

A Sindh High Court (SHC) bench granted bail to Dr Asim, a close aide of former president and PPP Co-chairman Asif Ali Zardari on medical grounds in the two cases that involve alleged corruption of Rs462 billion. He was ordered to deposit Rs2.5 million surety in each case along with his original Pakistani and Canadian passports with the court official.

The SHC accepted the bail plea based on the opinion of the court’s referee judge – Justice Aftab Ahmed Gorar – after a two-judge bench, comprising Justice Muhammad Farooq Shah and Muhammad Karim Khan Agha, had handed down a split verdict on February 2.

“By majority view, the opinion/decision tendered by my learned brother Karim Khan Agha, J. on March 3, 2017 in the captioned petition(s) shall prevail,” wrote the referee judge in his 19-page order announced on Wednesday. “The petitions to the extent of bail plea are allowed,” he added.

During the proceedings, Advocate Latif Khosa argued that Dr Asim was suffering from many severe diseases as had been confirmed by medical boards constituted by the trial court.

He argued that no proper facility was available at the Jinnah Postgraduate Medical Centre to treat his petitioner, while treatment of his diseases was available at different hospitals of Karachi. “Hence keeping my client at the JPMC is hazardous for his life,” Khosa claimed.

The special prosecutor of the National Accountability Bureau (NAB) argued that the petitioner was not entitled to bail on medical grounds, as proper treatment was provided to him at the JPMC according to his own choosing. Objecting to the referee judge’s jurisdiction, the prosecutor pleaded that the matter should be referred to the SHC chief justice to constitute a full bench for deciding the matter.

Assistant Attorney General Ashraf Rafiq Janjua endorsed the prosecutor’s arguments and opposed bail plea.

Justice Gorar observed that the co-accused Shoaib Warsi and others had already been granted bail by a division bench of the court, as pointed out by the petitioner’s counsel. Therefore, the rule of consistency was also applicable in the instant petitions.

“It is also an admitted position that the petitioner was enlarged on bail on medical ground in other cases by the division bench of this court and such order was not challenged by the prosecution before the apex court,” he noted.

He further observed that a perusal of the medical record of the petitioner reflected that he was suffering from severe ailment or sickness and if proper treatment of those ailments/sicknesses was not available at one hospital, those ailments could be treated at different hospitals of Karachi.

“Before concluding the opinion, it is necessary to refer a legal point that where there is a difference of opinion between two judges, particularly in the bail matter, a doubt has been created, benefit of which is to be extended to the applicant by granting him bail,” observed Justice Gorar.



According to the concept of judicial etiquette propounded by Justice Mahmood, who was a referee judge in a case in 1886, the deliberate opinion of one judge in the favour of acquittal upon a grave question of weight of the evidence in a case heard by a bench consisting of only two judges should ipso facto constitute in most cases a sufficient reason for creating such a serious doubt that benefit of that doubt should be given to the prisoner, he said.

He noted that on the account of difference of opinion between the judges in the bail matters, the Supreme Court had already decided the point of jurisdiction of a referee judge.