Cabinet Body Recommendations For Nawaz's Treatment Abroad

ISLAMABAD, (UrduPoint / Pakistan Point News - 15th Nov, 2019 ) :Following is the text of proceedings of the sub-committee of the cabinet to allow Mian Muhammad Nawaz Sharif to go abroad for medical treatment.

BEFORE THE CABINET SUB-COMMITTEE ON THE EXIT CONTROL LIST Case No.F.No.12/38/2018-ECL Dated: 13.11.2019 Mian Muhammad Shahbaz Sharif �� Applicant Vs.

The State �.. Respondent RE: REMOVAL OF THE NAME OF MR. MIAN MUHAMMAD NAWAZ SHARIF FROM THE ECL--RECOMMENDATIONS TO THE FEDERAL CABINET, DELIBERATIONS AND RECORD NOTE OF THE SUB-COMMITTEE The Federal Cabinet vide Notification bearing No. 09/CM/2019-M(pt) dated 12.03.2019 constituted the instant Sub-Committee to scrutinize the Exit Control List("ECL") cases and submit its recommendations to the Federal Cabinet.

2. The brief facts giving rise to the instant matter is that Mr. Muhammad Shahbaz Sharif (hereafter: "the Applicant") vide application dated 07.11.2019 addressed to the Secretary, Interior Division, Government of Pakistan (which application was received by the latter on 08.11.2019) requested the removal of the name of his elder brother, Mian Muhammad Nawaz Sharif, from the ECL on the ground that he was exceedingly ill as, inter alia, his blood platelet count had fallen to critical levels. Along with the application the Applicant has filed a medical report of the Sharif Medical City bearing No.SMC/058/2019 dated 07.11.2019 in which the following ailments and risks have been identified:- Thrombocytopenia Cardiovascular instability Immuno suppression and risk of fulminant septicemia Renal instability Risk of CVA 3.Upon receipt of the application as aforesaid, comments were invited from the National Accountability Bureau (hereafter: "NAB"), the Secretary, Specialized Health Care and Medical education Department, Government of Punjab and the Principal, Services Institute of Medical Sciences (SIMS)/Services Hospital Lahore. It may be clarified that the Health Department had already constituted a Medical Board for the purposes of evaluating the health condition of Mr. Nawaz Sharif. It is important to point out two aspects here. The first one is that the official Medical Board constituted by the Punjab Government had co-opted certain doctors from the Sharif Medical City, and in the report of the Sharif Medical City dated 07.11.2019, relied upon by the Applicant, some members of the official Medical Board are the signatories. The second aspect is that Prof. Dr. Tahir Shamsi, a well-known expert in Clinical Haematology, who was flown in by the Government from Karachi to assess Mr. Nawaz Sharif's medical condition, is the President of the Board constituted by the Sharif Medical City.

4.The official Medical Board through its report bearing No.6432/Principal dated 10.11.2019 confirmed the critical condition of Mr. Nawaz Sharif and recommended that he may be allowed to be shifted abroad to a center of excellence of his choice at his own risk. As the said medical report was not detailed, though it had attached a Discharge Summary, the Secretary, Specialized Health Care and Medical Education Department, Government of Punjab vide letter bearing No.SO(RMC)2-50/2019 dated the 11.11.2019 sought a few clarifications from the official Board. In consequence, a detailed medical report bearing No.6471/Principal dated 11.11.2019 was formulated by the official Medical Board, in which the critical medical condition of the Mr. Nawaz Sharif was described in detail. The said medical report was received by the Ministry of Interior on 11.11.2019 and looking to the emergent situation, and without any procrastination, a meeting of the Sub-Committee was called on 12.11.2019 at 10:00 AM at the Federal Ministry of Law and Justice, Islamabad. Notices were issued to the NAB authorities, the Secretary, Specialized Health Care and Medical Education Department, Government of Punjab and the Chairman/Convener of the Official Medical Board constituted by the Government of Punjab.

5. Today the following attended:- Mr. Ata ullah Tarar, Counsel for the Applicant along with Mr. Munawar Iqbal Duggal, Advocate Dr. Adnan Khan, personal Physician/Doctor of Mr. Nawaz Sharif Mr. Umer Randhawa, Additional Director (Ops) NAB Mr. Qamar Shehzad Phaphra , Dy. Director (ECL), (Ops. Div) NAB Mr. Momin Agha, Secretary, Specialized Health Care and Medical Education Department, Government of Punjab Prof. Dr. Mehmood Ayyaz, Principal of SIMS and Head of the official Medical Board constituted by the Government of Punjab.

6. NAB vide its letter bearing No.3-1(1)(14)/L/NAB/Dy.Dir(ECL) dated 11.11.2019 conceded that the Federal Government may take any decision in its discretion as it was fully empowered under the law to do so after fulfilling all the legal and codal formalities. In para 4 of the said letter NAB has clearly stated "that the Federal Government may exercise its discretion in a judicious manner keeping in view the humanitarian grounds, the law, specially the ECL Ordinance, the Prison Rules etc. in which NAB has no statutory role to play". However, in para 3 of the said letter NAB has stated "that the Federal Government [may] evolve a mechanism to ensure that if Mr. Nawaz Sharif, is permitted to travel abroad he will make himself available, if and when required by the concerned forums". In view of the contents of para 3 of the said letter, NAB's representatives M/s Umer Randhawa and Qamar Shehzad Phaphra were confronted by the Sub-Committee as to what "specific mechanism" would be available to the Federal Government to ensure Mr. Nawaz Sharif's return to Pakistan after a successful medical treatment. The latter conceded that there was no mechanism except that an indemnity bond may be secured and that a one-time permission only be given. NAB representatives were directed by the Sub-Committee to submit a clarifactory reply. In its reply bearing No.3-1(1)(14)/L/NAB/Dy.Dir(ECL) dated 13.11.2019 the NAB authorities have stated that "as per the media source/reports the proposed mechanism stipulated by the Federal Government for dealing with the ECL issue of the Mr. Nawaz Sharif is most appropriate and workable." In the media on 12.11.2019 it was widely broadcasted that the Federal Government is agreeable to a one-time permission to Mr. Nawaz Sharif for four weeks, subject to him or Mr. Shahbaz Sharif submitting an indemnity bond of the amounts determined by Accountability Courts. This being so, the NAB authorities appear to be agreeable to latter.

7. During the course of the hearing, which went on throughout the day on 12.11.2019 from 10:00 a.m. to 01:30 p.m., and 02:30 p.m. to 04:30 p.m., [and then also from 9:30 to 11:00 p.m.] the medical reports of Mr. Nawaz Sharif were closely examined. During the course of the hearing Prof. Dr. Mehmood Ayyaz, Head of the official Board and the Principal of SIMS/Services Hospital, Lahore stated that the official Medical Board concurred with the report of the Sharif Medical City dated 07.11.2019, which was being relied upon by the Applicant. This has further been confirmed in writing vide letter No.6488/Principal dated 12.11.2019 of Prof. Dr. Mehmood Ayyaz in which it has categorically been stated as follows:- "Further to our comments already submitted to the government vide board meetings dated 10th and 11th November, 2019, the members were contacted to via telephone and have agreed with the views/ comments of the medical board of the Sharif Medical City, Lahore, dated 7th November, 2019".

8. From the medical reports on record and also from the discussion with Prof. Dr. Mehmood Ayyaz and Dr. Adnan Khan there is hardly any dispute that the medical condition of Mr. Nawaz Sharif is absolutely critical. It may be stated that the blood platelet count of a healthy human being ranges from 150,000 to 400,000, whereas the blood platelet count of Mr. Nawaz Sharif on 22.10.2019 had dropped to about 2,000. After blood transfusion on 22.10.2019 his blood platelet count only increased to 13,000, while on 24.10.2019 the blood platelet count again dropped to 6,000. We have been informed that presently the blood platelet count of Mr. Nawaz Sharif is about 26,000, which is far below the minimum normal threshold of 150,000.

9. There are other ailments suffered by him such as diabetes, high blood pressure, high lipid and uric acid levels, stage 3 chronic kidney disease, kidney stones and cysts, prostate issues, critical narrowing of the carotid arteries and most significantly a serious heart condition since 2003. We were informed that Mr. Nawaz Sharif has had six heart procedures and have been infused with seven heart stents. In 2011 during a procedure, he suffered atrial perforation of the heart with the result that an emergency heart surgery was carried out and he was subsequently placed on a ventilator. In 2016 he again underwent an open heart surgery after which one of the bypasses become non-functional. In 2016 he also suffered a transient ischemic attack, which simply means the lack of blood supply from the heart to the brain, resulting in a stroke. The doctors confirmed that Mr. Nawaz Sharif also suffers from carotid blood vessel disorder and has had heart attacks of significant levels. In the past he also suffered a severe damage to his heart muscle known as acute myocardial infarction.

10. The medical report of Sharif Medical City dated 7.11.2019 has concluded as follows:- "In consensus the medical board wishes to state that; Depsite 2 weeks of work up no cause for severe thrombocytopenia has been indentified, which remains unresponsive to provisional treatment aimed at ITP. The local (nationally available) resources have been exhausted. Further delay in clarifying the diagnosis exposes him to profound undue risks, which is likely to lead to adverse health and life consequences.

We would strongly recommend the patient to be shifted to an advanced medical care facility abroad, where appropriate diagnostic and interventional facilities are available." 11. As stated aforesaid, vide letter dated 12.11.2019, the official Medical Board has concurred with the Report of the Sharif Medical City dated 07.11.2019. In the official Board's final report of 11.11.2019 it has also been stated that Mr. Muhammad Nawaz Sharif requires genetic testing for addition of 2nd anti-platelet agent to prevent the risk of thrombosis. This genetic testing is called "genotype guided strategy for oral P2Y12 inhibitor", which is not available in Pakistan.

12. This brings us to the pending criminal cases against Mr. Nawaz Sharif. In the case of Al-Azizia Steel Mills, on Reference No.19 of 2017, the Accountability Court-II, Islamabad vide judgment dated 24.12.2018 has convicted Mr. Nawaz Sharif for a term of 7 years, imposing a fine of Rs.1.5 billion and USD 25 million. Against this Mr. Nawaz Sharif has filed Criminal Appeal No. 1/2019, while NAB has filed Criminal Appeal No.2/2019 for enhancing the sentence from 7 to 14 years. Both these appeals are pending before the Islamabad High Court. Distinctly, Mr. Nawaz Sharif had filed WP No.32/2019 before the Islamabad High Court seeking suspension of the sentence which was subsequently withdrawn. He also filed WP No.352/2019 before the Islamabad High Court seeking bail on medical grounds, which was dismissed vide order dated 25.02.2019, against which he preferred CPLA 639/2019 before the Hon'ble Supreme Court of Pakistan, which vide order dated 26.03.2019 granted him bail for six weeks, while restraining him to travel abroad. His Cr. Review Petition No. 297/2019, against the Supreme Court's order dated 26.03.2019, was dismissed vide order dated 03.05.2019. Subsequently, Mr. Nawaz Sharif filed W.P No.1986/2019, also before the Islamabad High Court, seeking bail on medical grounds i.e. for a period after six weeks, which was dismissed vide order 20.06.2019. Thereafter his medical condition became critical. Thus, he preferred WP No.3716/2019 before the Islamabad High Court for bail/suspension of the sentence on medical grounds, which was allowed vide order dated 29.10.2019; the operative part of the order/judgment is reproduced as follows:- "23. In our short order of the even date we granted eight (8) weeks bail to petitioner No.2 by suspending the sentence handed down by the learned Judge Accountability Court-II, Islamabad vide judgment dated 24.12.2018 in NAB Reference No.19 of 2017. In case the health of petitioner No.2 does not improve and he needs further medical attention, the Government of Punjab may, on its own, decide the issue regarding suspension of the sentence. Even otherwise, petitioner No.2 may approach the Government of Punjab under Section 401(2) Cr.P.C. The apprehension expressed by the learned counsel for petitioner No.2 can be alleviated as in case of non-exercise of duty by the Government of Punjab or misuse of the discretion or exercise of the same in an arbitrary and whimsical manner, the matter can be agitated before the Court of law for appropriate remedy." 13. In relation to the Avenfields Apartments, NAB preferred Reference 20/2019, in which the Accountability Court No.I, Islamabad, vide judgment dated 06.07.2018 convicted Mr. Nawaz Sharif for a term of ten years and one year, respectively, imposing a fine of �08 million, while forfeiting Apartments Nos.16 & 16-A and 17 & 17-A.

Against the conviction, Mr. Nawaz Sharif preferred Criminal Appeal No.121 of 2018 along with WP No.2839/2018 seeking suspension of the judgment of the trial court. Vide order dated 19.09.2018 the learned Islamabad High Court suspended the sentence, while the Apex Court in CPLA No.1340/2018, vide order dated 14.01.2019, refused to interfere.

14. In the Flagship Investment case, Reference No.18/2017 was filed by NAB in which vide judgment dated 24.12.2018, the Accountability Court-II, Islamabad acquitted Mr. Nawaz Sharif, against which NAB has preferred Criminal Appeal No.3/2019 before the Islamabad High Court, which is pending.

15. In the Chaudhry Sugar Mills case, NAB has initiated inquiry No.1/(9)HQ/2023/NAB-L, in which Mr. Nawaz Sharif was arrested on 11.10.2019. On account of his critically adverse medical predicament, he preferred WP No. 63511 of 2019 on medical grounds before the Lahore High Court. A learned Division Bench of the Lahore High Court, looking to the critical medical predicament of Mr. Nawaz Sharif, vide order dated 25.10.2019 granted him bail, subject to submission of bonds and sureties. In this order, the Court was pleased to observe as follows:- " Obviously, the purpose of bail on medical ground is to ensure that an under-trial prisoner was allowed to avail medical treatment and, or, surgical intervention, if need be, in hospital of his choice in the country or outside the country to ensure stoppage of his further detoriation of health and not to set him at liberty till conclusion of the trial." 16. In the case of Rauf B. Kadri v. FOP 2007 YLR 560 a learned Division Bench of the Sindh High Court was pleased to grant a one-time permission to a convicted person to perform Umrah. So it is incorrect to suggest that a one-time permission to travel abroad cannot be given to a convicted person.

17. The law on ECL has very ably been laid down by Aamer Farooq J, while sitting in a Division Bench of the Islamabad High Court in Dr. Joseph Wilson v. FOP 2017 PCrLJ 1569. In this case at pp.1583 and 1584B the Court was pleased to hold that mere pendency of a criminal case/proceedings, including proceedings before an Accountability Court (without an order or a request from the Court for the curtailment of an accused's freedom to travel abroad) is not considered a sufficient ground to place a citizen's name on ECL. It was further observed, in this case, that each case was to be examined on its own merits, according to the obtaining peculiar facts. This means that the totality of facts are to be considered in deciding ECL cases.

18. In matters of Exit Control there exists two independent jurisdictions. Firstly, the Courts ceased of the criminal cases have the jurisdiction to regulate the custody of the accused and secondly, it is the Federal Government which has the jurisdiction in terms of the ECL Law and Rules i.e. the Exit from Pakistan (Control) Ordinance 1981 (hereafter: "the 1981 Ordinance") read with the Exit from Pakistan (Control) Rules, 2010 (hereafter: "the 2010 Rules"). The availability of independent jurisdictions in the context of Exit Control has been fully endorsed by a Larger Bench of the Supreme Court comprising five learned Judges in FOP v. Pervez Musharraf PLD 2016 SC 570 wherein at p. 578 it has been observed as follows:- "In due course, all matters relating to the custody of an accused, restricting his liberty or freedom of movement are to be dealt with by the Courts ceased of the criminal cases against him or by the Federal Government in terms of the Exit from Pakistan (Control) Ordinance, 1981 and the rules framed thereunder." The existence of these two independent jurisdictions is again noted by the Supreme Court in the same judgment at pp.579 and 580, the relevant excerpt reading as follows:- "It will be pertinent to mention here that in the shape of Exit from Pakistan (Control) Ordinance, 1981, read with Exit from Pakistan (Control), Rules, 2010, a complete mechanism is provided for the situation, which needs to restrict the movement of any person from going abroad, where there is lawful and valid justification for this purpose. But in the instant matter such option has not been exercised as yet by the Federal Government upon independent application of mind to the case of respondent No.1 or by the Special Court constituted under Article 6 of the Constitution or the other Courts of law where respondent No.1 is facing proceedings relating to different criminal cases registered against him." While exercising the jurisdiction under the Exit Control Laws if the Federal Government errs, the same is subject to correction by way of judicial review by the Court but in doing so the Courts have exercised due caution. In this regard one can usefully cite another judgment from Aamer Farooq J in Muhammad Idrees v. Colonel Joseph Emmanuel PLD 2018 Islamabad 355 wherein it was held that the Courts encourage and direct the Federal Government to take a reasoned decision upon a due application of mind before exercising its jurisdiction of judicial review. The relevant portion of the judgment at p.371D reads as follows:- "32. The courts generally refrain from entering the domain of Executive and take decisions on its behalf. In exercise of jurisdiction under Article 199 of the Constitution, the courts can examine the validity of executive decision on touchstone of accepted parameters. Though under the Rules of 2010, the Federal Government can place the name of any person on Exit Control List on the orders of a High Court, however, since the matter is already pending before the competent authority i.e. the Federal Government, hence, it just and proper that the issue of placement of name of respondent No.1 be decided by it. Respondent No.6 is, therefore, directed to decide the application for placement of name of respondent No.1 on ECL in accordance with law, especially in light of observations made hereinabove expeditiously preferably within a period of two weeks from the date of this order. The compliance of this order shall be intimated to Deputy Registrar (Judicial) of this Court. In case, the needful is not done as directed, or the petitioners are, in any way, aggrieved of decision, they may seek appropriate remedy. The compliance of this order shall be intimated to Deputy Registrar (Judicial) of this Court. In case, the needful is not done as directed, or the petitioners are, in any way, aggrieved of decision, they may seek appropriate remedy." 19. One also cannot fail to cite an earlier precedent here i.e. Jehangir Badar v. Federation PLD 2004 Lahore 478, wherein a petition to lift the name of the Petitioner from ECL was dismissed since the Petitioner had not exhausted the remedy of first approaching the Federal Government. The High Court dismissed the petition as pre-mature. Therefore, the existence of two independent jurisdictions to deal with matter of Exit Control seems well established in our jurisprudence.

20. The Islamabad High Court in WP No.2839/2018 suspended the sentence of the trial court in the Avenfield Apartments case; while the Islamabad High Court also in WP No.3716/2019 granted bail/suspended the sentence on medical grounds for a period of six weeks; and the Lahore High Court in WP No.63511/2019 granted bail to Mr. Nawaz Sharif on medical grounds in the Chaudry Sugar Mills case. But in none of these orders the learned Islamabad High Court or the Lahore High Court has annulled, set aside or modified the order whereby Mr. Nawaz Sharif's name was placed on the ECL. And it is for this very reason that the Applicant has moved the subject application, seeking removal of Mr. Nawaz Sharif's name from the ECL. If the two Exit Control jurisdictions were not independent there would have been no need for the Applicant to have moved the subject application in the first place.

21. Having looked into the medical record this Sub-Committee is of the considered view that Mr. Nawaz Sharif may be permitted to pursue medical treatment abroad, subject to his own cost and risk. However, we are mindful that in terms of rule 3(c) of 2010 Rules a person who has been convicted by a Court of law for any offence shall remain on the ECL so long as the said order of placing him on ECL is in force and till his conviction attains finality. The convictions of Mr. Nawaz Sharif have not attained finality. Therefore, the Federal Government is not in a position to lift the name of Mr. Nawaz Sharif from the ECL but having said so, looking to the gravity of his medical condition and the past practice of the Federal Government he could be granted a one-time permission, which does not amount to lifting his name from the ECL.

22. The Islamabad High Court in WP No.3716/2019 has suspended the sentence of Mr. Nawaz Sharif on medical grounds for eight weeks in which about two weeks have already elapsed. Therefore, this Committee recommends that a one-time permission may be granted to Mr. Nawaz Sharif for a period of 4 weeks so that the time fixed in the Islamabad High Court in WP No.3716/2019 is not violated. This one-time permission is for Mr. Nawaz Sharif to undergo medical treatment and tests, the latter appear not to be available in Pakistan.

23. The instant Application is essentially an application of review within the meaning of section 3 of 1981 Ordinance; and according to section 3(2) of the said Ordinance the Federal Government can pass any order as deemed fit. There is nothing in the law or the rules which prohibit any conditionalities which may be attached to the grant of a one-time permission. As held in the Dr. Joseph case (cited supra) the totality of facts have to be seen. In the Al Azizia Reference Mr. Nawaz Sharif has been saddled with a financial liability of Rs.1.5 billion and US$25 million, respectively, while in the Avenfield Reference the financial burden on him is �8 million. These convictions have been suspended by way of interim orders only. In other words, the finality in these matters have yet to be reached. This is not a matter where criminal trials have not been finalized but rather there are convictions which have been handed down by the Courts of competent jurisdiction. It would thus be both just and germane if the Federal Government imposes certain conditions to the grant of the one-time permission for four weeks.

24. There is nothing in the 1981 Ordinance or the 2010 Rules which prohibits the imposition of conditions such as the execution of an indemnity bond. It is a settled principle of law that whatever is not prohibited is deemed to be permitted. If there is any authority needed for this proposition one may look into the judgment of the Supreme Court reported as Islamia University v. Muhammad Hameed Bhatti 2004 SCMR 649 at p.655D. It may not be out of place to state that in the past also the Federal Government/Ministry of Interior, while granting one-time permissions to travel abroad, has imposed conditionalities such as execution of bonds. And such practice has been duly accepted or recorded in a judgment of the Lahore High Court reported as Jehangir Badar v. Federation 2004 PCrLJ 1285, the relevant extract wherefrom at p.1287 reads as follows:- "There is thus no question of passing of any contradictory order. If the petitioner has such a pious desire to go for Umra in the days, left for the Holy month of Ramzan, he deserves to be granted permission for that purpose subject to undertaking by him to return. There are numerous instances where either the Government itself has granted permissions to persons on the Exit Control List of the Court by making orders subject to certain conditions, (as mentioned in the preceding paragraph). When enquired. The learned counsel for the petitioner has stated that 15 days' would be enough for the performance of Umra. I am, therefore, inclined to grant him one time permission to go abroad i.e. the Holy cities of Mecca and Medina, for a period of 15 days subject to his furnishing bond in the sum of Rs.2,00,000 (two lacs) to the satisfaction of the Deputy Registrar (Judicial) of this Court ensuring and undertaking his return to the Country. The respondent will facilitate the due documentation for this purpose." Even otherwise the Supreme Court in Imam Bakhsh v. Ghulam Nabi 1999 SCMR 34(a)(b) has been pleased to hold that any procedure could be adopted in the interest of justice if it were not prohibited by law.

25. Accordingly, in the facts and circumstances of the case if the Federal Cabinet deems fit it may grant a one-time permission to Mr. Nawaz Sharif for four weeks to travel abroad for his medical treatment/tests, subject to either him or the Applicant submitting an indemnity bond for an amount equal to the determined liability by the trial courts mentioned above, to the satisfaction of the Additional Secretary, Ministry of Interior.

26. The above are the deliberations and a record note of this Sub-Committee and the same also constitutes the essence of the briefing that was made by the undersigned to the Federal Cabinet on 12.11.2019.

Sd/- Dr. M. Farogh Naseem Federal Minister for Law and Justice Chairman Sd/- Mirza Shahzad Akbar SAPM on Accountability Member Sd/- Major(R) Azam Suleman KhanSecretary Ministry of InteriorSecretary/Member