1998 SHC judgment: Several imprisoned politicians provided with AC facility

ISLAMABAD: Prominent senior politicians, including Asif Ali Zardari, Khan Abdul Wali Khan, Mir Ghous Bux Bizenjo, Nawab Khuda Bux Marri, Sardar Ataullah Mengal, Afzal Khan, Arbab Sikandar Khalil, Kaswar Gardezi and Ghulam Mustafa Khar were provided with the facility of air-conditioner during their incarceration more than two decades ago.

This emerged from a judgement of the Sindh High Court (SHC) delivered in 1998 when the then Nawaz Sharif government had attempted to withdraw this facility from under-trial Zardari, who was facing the Mir Murtaza Bhutto murder case. It had been granted to him a sessions judge's order.

The reported judgement [PLD 1999 Karachi 144] has been brought in view of the provision of the air-conditioner facility to imprisoned former premier Nawaz Sharif on the recommendation of a Punjab government’s medical board and its withdrawal by the provincial administration.

Previously, the Nawaz Sharif regime fought in the SHC undoing of this facility granted to its then archrival Zardari. Now, the present government is keen to withdraw it from its principal opponent. The former premier’s case seeking this facility has not so far landed in a court.

The SHC had held that so far the report of the jail superintendent pursuant to its order to the effect that none out of 28 superior class UTP [under trial prisoners] has been provided the facility of air-conditioner is concerned, no doubt Zardari being a member of Senate is superior class prisoner but the facility has been granted to him on ground of disparity amongst the prisoners of superior class, the facility on medical ground cannot be withheld.

In his verdict, Justice Shabbir Ahmed wrote that the revisional jurisdiction could be exercised by the SHC in exceptional cases when the interest of justice requires interference tor correction of manifest illegality or prevention of gross miscarriage of justice.

According to the ruling, short but precisely relevant facts leading to the present revision application are that Zardari is facing trial along with others in a 1998 case--State v .Wajid Ali Durrani and others--commonly known as Murtaza Bhutto’s case, before sessions judge Karachi West.

During the trial, an application was moved on Zardari’s behalf for air-conditioner facility in the room inside the jail on medical ground. The request was supported by a certificate issued by jail doctor Zamaz Waheed, who had examined Zardari on April 14, 1998 for skin trouble on foot, knee, chest and back of his body. He prescribed medication and advised precaution as well as certain living conditions for cure. The sessions judge accepted Zardari’s plea. The government approached the SHC against this order. During hearing at the SHC, an affidavit of Ghualm Mustafa Khar was produced which stated that the facility of air-conditioner was provided to him during his detention in Adiala jail, Rawalpindi, in the year 1987-88 on medical ground.

Zardari’s counsel Azizullah Shaikh told the SHC that during the trial of members of the national and provincial assemblies and office-bearers of defunct National Awami Party (NAP) [banned by the Zulfikar Ali Bhutto regime] including Wali Khan Ghous Bux Bizenjo, Khuda Bux Khan Marri, Attaullah Mengal, Arbab Sikandar Khalil, Afzal Khan and Kaswar Gurdezi (on medical ground) were provided the facility of air-conditioner under the court's order. Zardari had been provided the facilities of fridge and physiotherapy. machine on medical grounds.

The SHC noted that it has not been disputed that the facility of air-conditioner has been given to UTPs under court's order on medical grounds. Zardari is suffering from various ailments, including the skin disease. The jail doctor prescribed medicine and simultaneously advised certain precautions such as to avoid sweating, emotional upset and hot weather and recommended stay in cool room, preferably air-conditioned. The authenticity of the medical report has not been challenged. Other facilities, such as fridge and physiotherapy machine have been given to Zardari under the court’s order on medical ground on government expenses.

The then advocate general of Sindh, Iqbal Raad (later assassinated), contended that doctor has not opined that the air-conditioner facility is necessary to save Zardari’s life and sessions judge erred in granting the relief. He argued that the judge exceeded his jurisdiction, which needs to be rectified and emphasised that there is no provision for air-conditioner facility to superior class prisoners.

However, Zardari’s lawyer pleaded that the sessions judge was within his jurisdiction in passing the order warranted under the circumstances of the case. He said that Zardari’s ailment is not disputed. The medical report of the jail doctor has not been challenged. The medical officer has prescribed medicine and also advised certain precautions and other measures for recovery from the ailment. He, in clear terms, held to avoid hot weather and maintain cool atmosphere by air-conditioner/room cooler.

Shaikh referred to Khar’s affidavit as well as his own statement, which have not been rebutted. He pointed out that the facility of fridge and physiotherapy machine has been provided to Zardari on medical ground under court's order. He contended that the facility has been given on medical ground in absence of anything in rebuttal of the same remained unchallenged. Therefore, the court was within its jurisdiction to grant the application moved on Zardari’s behalf. He said that superior courts have accepted the medical report and granted relief. He referred to the case law.