Law does not provide for accused ‘treatment abroad’

ISLAMABAD:

The Supreme Court has rejected a plea of a principal accused in the fake accounts case, Khawaja Anwer Majeed, to go abroad for medical treatment, saying “law does not provide concession [to an accused] for offshore treatments".

"Petitioner’s unenviable health conditions with a risk apparently looming large, given his advance age, i.e., 78, notwithstanding; nonetheless, we do not consider it expedient to entertain his request to undertake journey abroad for medical purposes," says a six-page written order.

The order was issued by a division bench of the apex court comprising Justice Mushir Alam and Justice Qazi Muhammad Amin Ahmed, regarding grant of bail to Anwar Majeed on medical grounds after his imprisonment of more than two years.

The order has stirred a debate in legal circles: if the court cannot grant concession to an accused person, allowing him to go abroad for medical treatment, then on which legal basis former president Gen (retd) Pervez Musharraf and former prime minister Nawaz Sharif were allowed to go abroad for the same purpose.

Muneer A Malik, counsel for the accused, had filed the plea, requesting the bench to allow his client to go abroad for medical treatment.

Justice Qazi Muhammad Amin Ahmed, who authored the order, said, Anwer Majeed is facing indictment in a criminal case, prima facie, supported by evidence, collected by the investigating agency.

Therefore, as an accused all that he can claim is “due process of law” through a fair trial so as to possibly vindicate his position; it is a right equally extendible to all the accused without distinction of stature, status or station, says the order.

The court also noted that as a sick and infirm person, as he appears to be, the petitioner is entitled to the concessions that the law provides to all and sundry; these do not include offshore treatments.

The court made it clear that equality before law and equal protection thereof are not one sided affairs; these equally empower the state through its prosecuting agencies to effectively prosecute the alleged offenders and for that physical custody/presence of an accused to bring the prosecution to its logical end is a sine qua non (an essential condition).

"On equiponderance stand the heavens and the earth, and no less importantly people’s faith in the administration of justice by the Courts. With scores of accused awaiting conclusions of their long drawn trials in over-crowded prisons, letting the few privileged to jump the queue in order to swap rigors of incarceration with comforts that few could afford would be a travesty.

“We would not approve out of turn fixation of cases with interregnums smaller than usual and on the week days barred to ordinary litigants."

The court further said that while upholding the equality we are guided by the Prophetic command: “the Kazee must not smile in the face of one of the parties, because that will give him a confidence above the other; neither must he give too much encouragement to either, as he would thereby destroy the proper awe and respect due to his office.” (The Hedaya, by Charles Hamilton, Page-338).

The order notes that overseas journey is a wage much higher than a smile simpliciter.

"For the above reasons, petitioner’s request for treatment abroad is declined."

However, the court noted that his condition has alarmingly deteriorated and it is unanimously held by a good number of cardiac physicians of repute that he immediately requires surgery for aortic valve transplant, a hugely-risk, intensive procedure that needs to be undertaken under most conducive environment; therefore, it would be appropriate to permit petitioner to undertake the procedure free from custodial stresses; he has been behind the bars for a period by now exceeding two years; his continuous incarceration coupled with fragile health conditions and proposed surgery squarely makes his case one of hardship and on that ground alone we allow the request for his release on bail for the said purpose; he shall furnish a bank guarantee either personally or through a surety in the sum of Rs100 million from a scheduled bank with the Registrar of this Court.

Besides, surrendering his travelling documents, unless already held by the authorities; his name shall be placed on Exit Control List and he shall not be allowed to depart from the jurisdiction of the Accountability Court.

The order further noted that these are not the only conditions of his bail; he shall join investigation as and when required by the NAB and also ensure his representation before the Accountability Court, either personally or through video link, whichever is found convenient under the circumstances.

"In the event of physical incapacity, his request for dispensation and representation through a counsel shall be considered most thoughtfully.

In the event of non-compliance with the directions issued by this Court, the NAB may approach this Court for the recall of concession," says the order.

The court, while rejecting the NAB’s objection, also held that under the Supreme Court Rules 1980, the bail matter can be heard by a division bench.