Dr Asim not allowed to travel abroad for treatment
SHC dismisses PPP leader’s plea to return passports, remove name from ECL
Dr Asim Hussain. PHOTO: EXPRESS
KARACHI:
Dr Asim Hussain, the Pakistan Peoples Party Karachi division president and a close aide of former president Asif Ali Zardari, will have to stay in the country to face criminal and corruption trials, at least for now, as the Sindh High Court (SHC) threw out on Monday his petition seeking the return of his Pakistani and Canadian passports and direction for the interior ministry to remove his name from the Exit Control List (ECL).
A two-judge bench, headed by Justice Muhammad Junaid Ghaffar, announced its verdict, which was reserved on May 26, after hearing arguments from the lawyers representing the petitioner, the deputy attorney general and the National Accountability Bureau’s (NAB) special prosecutor.
“Insofar as the other prayer regarding the memorandum dated November 24, 2015 is concerned, since the name of the petitioner is now placed on the ECL on the basis of an order passed by this court while granting bail to the petitioner and which we have maintained by dismissing the miscellaneous application, no further adjudication on the said memorandum is required,” it ruled in a 14-page order.
Hearing on Dr Asim’s plea adjourned
Dr Asim, the former petroleum adviser, had moved the court seeking return of his passports from the SHC’s nazir (official) and direction for the interior ministry to take his name off the ECL to travel abroad for medical treatment.
His lawyers, Lateef Khosa, Anwar Mansoor Khan and Qadir Mandokhel, argued that initially the Rangers had taken him into preventive custody for 90 days under Section 11EEEE of the Anti-Terrorism Act, 1997 in August, 2015. Later, the NAB authorities had taken him into their custody though neither any inquiry nor an investigation or reference was pending against him.
They argued that during this period the former petroleum adviser’s name was put on the ECL through a letter dated November 24, 2015 and two corruption references were filed against him in which later the SHC had also granted him bail.
Order reserved on Dr Asim’s plea seeking removal of name from ECL
They informed the court that the high court had on November 1 last year granted him bail in a case relating to treatment of terrorists at his chain of private hospitals in Karachi and the concerned ATC had permitted him to travel abroad for medical treatment.
They contended that the medical reports of the petitioner, on the basis of which he was granted bail by the SHC, clearly suggest that he was suffering from a number of illnesses. Referring to reports of medical experts from Aga Khan University Hospital, Orthopaedic and Medical Institute Hospital, Liaquat National University Hospital and Dow Medical University, the lawyers maintained that Dr Asim had to have a lumber disc replacement surgery, but such a facility was not available in Pakistan.
They informed the court that the petitioner had already deposited the surety amount and his original passports and was willing to deposit an additional surety, if so directed.
Therefore, the court was pleaded to return the passports and have the interior ministry remove Dr Asim’s name from the ECL, keeping in mind his health.
Federal govt opposes Dr Asim’s plea to remove name from ECL
Relying upon the judgments passed by the superior courts ordering removal of the ban on the travel of former president General (retd) Pervez Musharraf, the lawyers pleaded that the former petroleum adviser was also entitled to permission to travel.
However, the court observed that the provision of Section 498 of the Criminal Procedure Code (CrPC) confers vast discretionary powers on the high court and the sessions court.
It noted that “if the high court and district criminal court has the powers to pass the bail order in a fit and a proper case, then surely it has the competence to pass any conditional bail order, if in its estimation circumstances of the case so warrant”.
It further observed though of course the courts normally would not and should not pass any conditional order beyond those normal conditions visualised under Section 499 of the CrPC, but to hold that the court has no power to pass a conditional bail order in a non-bailable case under any circumstances would be a wrong exposition of law.
SHC issues notices on Dr Asim's plea for return of passports, removal of name from ECL
Referring to a 1931 judgment on such question, the bench members observed that the high court’s powers to grant bail were conferred upon it under Section 498 and is entirely unfettered by any condition. “The legislature has given the high court and court of sessions discretion to act under Section 498 unfettered by any limitation other than which controls all discretionary powers vested in a judge [but] that the discretion must be exercised judicially.”
The two judges observed that in the case of Hakim Ali Zardari, while granting bail, the Lahore High Court added a condition of furnishing a deposit of Rs10 million and surrender of passport in a case emanating from the Ehtesab Act, 1997, (predecessor law of NAB Ordinance), which was maintained by the Supreme Court in an appeal by a majority decision of two is to one.
Dr Asim Hussain, the Pakistan Peoples Party Karachi division president and a close aide of former president Asif Ali Zardari, will have to stay in the country to face criminal and corruption trials, at least for now, as the Sindh High Court (SHC) threw out on Monday his petition seeking the return of his Pakistani and Canadian passports and direction for the interior ministry to remove his name from the Exit Control List (ECL).
A two-judge bench, headed by Justice Muhammad Junaid Ghaffar, announced its verdict, which was reserved on May 26, after hearing arguments from the lawyers representing the petitioner, the deputy attorney general and the National Accountability Bureau’s (NAB) special prosecutor.
“Insofar as the other prayer regarding the memorandum dated November 24, 2015 is concerned, since the name of the petitioner is now placed on the ECL on the basis of an order passed by this court while granting bail to the petitioner and which we have maintained by dismissing the miscellaneous application, no further adjudication on the said memorandum is required,” it ruled in a 14-page order.
Hearing on Dr Asim’s plea adjourned
Dr Asim, the former petroleum adviser, had moved the court seeking return of his passports from the SHC’s nazir (official) and direction for the interior ministry to take his name off the ECL to travel abroad for medical treatment.
His lawyers, Lateef Khosa, Anwar Mansoor Khan and Qadir Mandokhel, argued that initially the Rangers had taken him into preventive custody for 90 days under Section 11EEEE of the Anti-Terrorism Act, 1997 in August, 2015. Later, the NAB authorities had taken him into their custody though neither any inquiry nor an investigation or reference was pending against him.
They argued that during this period the former petroleum adviser’s name was put on the ECL through a letter dated November 24, 2015 and two corruption references were filed against him in which later the SHC had also granted him bail.
Order reserved on Dr Asim’s plea seeking removal of name from ECL
They informed the court that the high court had on November 1 last year granted him bail in a case relating to treatment of terrorists at his chain of private hospitals in Karachi and the concerned ATC had permitted him to travel abroad for medical treatment.
They contended that the medical reports of the petitioner, on the basis of which he was granted bail by the SHC, clearly suggest that he was suffering from a number of illnesses. Referring to reports of medical experts from Aga Khan University Hospital, Orthopaedic and Medical Institute Hospital, Liaquat National University Hospital and Dow Medical University, the lawyers maintained that Dr Asim had to have a lumber disc replacement surgery, but such a facility was not available in Pakistan.
They informed the court that the petitioner had already deposited the surety amount and his original passports and was willing to deposit an additional surety, if so directed.
Therefore, the court was pleaded to return the passports and have the interior ministry remove Dr Asim’s name from the ECL, keeping in mind his health.
Federal govt opposes Dr Asim’s plea to remove name from ECL
Relying upon the judgments passed by the superior courts ordering removal of the ban on the travel of former president General (retd) Pervez Musharraf, the lawyers pleaded that the former petroleum adviser was also entitled to permission to travel.
However, the court observed that the provision of Section 498 of the Criminal Procedure Code (CrPC) confers vast discretionary powers on the high court and the sessions court.
It noted that “if the high court and district criminal court has the powers to pass the bail order in a fit and a proper case, then surely it has the competence to pass any conditional bail order, if in its estimation circumstances of the case so warrant”.
It further observed though of course the courts normally would not and should not pass any conditional order beyond those normal conditions visualised under Section 499 of the CrPC, but to hold that the court has no power to pass a conditional bail order in a non-bailable case under any circumstances would be a wrong exposition of law.
SHC issues notices on Dr Asim's plea for return of passports, removal of name from ECL
Referring to a 1931 judgment on such question, the bench members observed that the high court’s powers to grant bail were conferred upon it under Section 498 and is entirely unfettered by any condition. “The legislature has given the high court and court of sessions discretion to act under Section 498 unfettered by any limitation other than which controls all discretionary powers vested in a judge [but] that the discretion must be exercised judicially.”
The two judges observed that in the case of Hakim Ali Zardari, while granting bail, the Lahore High Court added a condition of furnishing a deposit of Rs10 million and surrender of passport in a case emanating from the Ehtesab Act, 1997, (predecessor law of NAB Ordinance), which was maintained by the Supreme Court in an appeal by a majority decision of two is to one.