2008 PLP 352 (MLD)

M. BILAL KHAN, J.

Khawaj Muhammad Khan Tanoli son of Meer Abdullah, the petitioner, by filing this constitutional petition, has .sought post-arrest bail in AC/Reference No.14 of 2005 (The State v. Khawaj Muhammad Khan Tanoli and others) pending adjudication before the learned Accountability Court No.3. Lahore.

2. Precisely the allegation against the petitioner according to the initial Reference No.14 of 2005, was that he as also his co-accused Muhammad Shahban Khokhar being Proprietors of Messrs Shahbaz International Customs Clearing Agency, Dry Port Sambrial and Messrs Bilal International Customs Clearing Agency Dry Port, Sambrial, respectively, were the Clearing Agents for Messrs Service Industries Limited (SIL), Gujrat and during the years, 1998 to 2001 had got bonded/released the goods of Messrs SIL by affixing fictitious/forged Bank Stamps of "cash received" on 62 ex-bonded bills of entry assessed at Rs.1,64,57,212 filed by Messrs SIL before the Customs Department for ex-bonding certain goods from their bonded warehouse, falsely showing payment of customs duty etc., whereas the said amount was never deposited on behalf of Messrs SIL in the Bank. In this way, they had indulged in acts of corruption and corrupt practices. However, later on a supplementary Reference had been filed, wherein name of Muhammad Shahban Khokhar had been deleted having been found to be innocent as a result of re-investigation. Two others by the name of Muhammad Khalil Feroz and Muhammad Razzaq were mentioned in the supplementary Reference as accused apart from the petitioner.

3. We have heard the learned counsel for the petitioner as also the learned Special Prosecutor for NAB and have also gone through the record brought by Rooman Zaheer, Investigating Officer NAB Punjab.

4. It has been observed that the appellant had been arrested by the NAB authorities on 8-6-2005 and that although serious allegation of committing fraud has been brought against him, but in spite of the fact that supplementary Reference had been filed, no progress towards conclusion, even commencement of trial has been made. Co-accused of the petitioner, namely, Muhammad Shahban Kokhar, who was one of the principal characters/accused in the initial Reference No.14 of 2005 and against whom the allegation was that out of the 62 fake bills of entry, he had filed 39, was later on declared to be innocent as a result of which he was acquitted by the learned trial Court under section 265-K, Cr. P. C. vide order, dated 18-8-2006. In the supplementary Reference apart from the petitioner, two other accused, namely, Muhammad Khalil Feroz and Muhammad Razzaq have been arraigned. As already stated, the allegation against the petitioner and his erstwhile co-accused Muhammad Shahban Khokhar was exactly the same, therefore, subsequent opinion of innocence qua the latter renders the case of the present petitioner also one of further inquiry.

5. We would not like to express our views on the intricacies of allegations against the petitioner, lest they prejudice the case of either of the sides, however, we may observe that the contention of the learned counsel for the petitioner that there are about fifty six witnesses to be produced by the prosecution, which might take years to be examined, has not been convincingly controverted by the learned Special Prosecutor. There is no denying the fact that despite submission of the original Reference as far back as on 21-4-2005, no progress towards commencement of trial has been made. Therefore, any further indefinite confinement of the petitioner would not serve any useful purpose. The petitioner is suffering incarceration for the last about two years and his further detention would amount to punishment before conviction, which is not permissible under the criminal jurisprudence. In almost an identical case titled "Mian Muhammad Rashid v. The State etc." a Division Bench of this Court in Writ Petition No. 1495 of 2007 had allowed bail to the petitioner therein.

6. For what has been discussed above, we are of the view that keeping in view the peculiar facts and circumstances of the case, the petitioner is entitled to relief sought for. Accordingly, we accept this petition and admit the petitioner to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.4 million (Rupees four million) with one surety in the like amount to the satisfaction of Deputy Registrar (Judi.) of this Court. M.H./M-486/L???????????????????????????????????????????????????????????????????????? Petition allowed.