2008 PLP 735 (YLR)

KHAWAJA NAVEED AHMED, J.

This is third bail application moved on behalf of the petitioner, who was arrested by the National Accountability Bureau on 27-3-2007 in Reference No.21 of 2007, which is pending in the Accountability Court No.V, Karachi. First bail application was rejected by learned Division Bench of this Court vide order, dated 22-5-2007. The second bail application was moved before the same Division Bench, which too was rejected by order, dated 19-9-2007 and in the concluding paragraph of the rejection order the learned Division .Bench was pleased to observe as under:

"Trial Court is directed to decide the case within "statutory period."

2. The facts giving rise to this case are that the petitioner has acquired properties disproportionate to his known sources of income as he had joined service in BPS-6 and rose to BPS-9 from 18-9-1984 till the year 2004. In the reference his yearly income 'from the salary has been mentioned and it has been stated that during his entire service period he has received salary of Rs.637,696 while the properties acquired by him along with the cost of construction are for the value of Rs.4,620,

123. The five properties have been mentioned in the reference which are given hereunder:

S.# Description of Properties Year Construction Cost 1. Plot No.C-33, Qabail Colony, FB Area, Karachi. 1985 Rs.613,699 2. Plot No.50, Block-L, Arafat Town, FB Area, Karachi. 1998 Rs.784,082 3. Plot No.51, Block-L, Arafat Town, FB Area, Karachi. 1998 Rs.413,542 4. Plot No.L-199, Jogi Muhalla Goth Saleh Muhammad, near Safari Park, Karachi. 2002 Rs.1,414,000 5. Plot No.L-200, Jogi Muhalla, Goth Saleh Muhammad, near Safari Park, Karachi. 2002 Rs.1,394,800 3. Learned counsel for the petitioner has disputed the averments made in the reference and has argued that the properties are not exclusively owned by the petitioner and he has contended that in this respect there was a family dispute between the petitioner and his brothers much prior to the filing of this reference and as such his brothers namely Bashir Ahmed, Muhammad Aslam, Muhammad Iqbal and Sagheer. Ahmed, all sons of Karim Bakhsh had filed" Suit No.708 of 2004 against the petitioner with the prayer that the Court should declare that they are the real owners of the said properties. In the suit, three properties are mentioned in prayer clause. The plaint was filed and signed by them on 29-9-2004 and this suit was compromised outside the Court and the attorney of the plaintiffs in Suit No.708 of 2004 had moved an application for withdrawal of the suit on the ground that the parties have resolved their disputes outside the Court and as such they are no more interested in pursuing the suit. The Court was pleased to dispose of the matter as withdrawn. The defendant in the suit, who is the petitioner in the present proceedings, had signed on the application giving his no objection for withdrawal of the suit and he had admitted that the matter was resolved outside the Court. 4. Apparently, it is clear that that petitioner is holding properties beyond his known sources of income. However, in the same reference it is mentioned that the petitioner was running one clinic where he was working as a quack doctor and was performing operations and was providing medical services to the people and as such was minting money illegally. This may be an offence under Sindh Government Servants (Conduct) Rules, 1966 but it is not covered under section 9 of the National Accountability Ordinance, 1999 ("Ordinance 1999"). Moreover, the present petitioner was posted as Operation Theatre ("OT") Technician in Qatar Hospital, which is owned and controlled by KMC now City District Government, Karachi. 5. We have asked question from learned ADPG, N.A.B., to satisfy this Court that the OT Technician holds any discretionary power which he can misuse in order to mint money. We have also asked the learned ADPG to satisfy this Court as to whether any Government funds were available at the disposal of the OT Technician/petitioner. We have further asked to satisfy this Court as for what reason somebody will give bribe to an OT Technician. 6. Learned ADPG instead of replying these questions in specific words has drawn our attention to the fact that the petitioner was an employee of Grade-9 and the properties he had acquired were much more than his known sources of income. He has drawn our attention to section 14(c) of Ordinance, 1999, which is reproduced herein below:

"

14. Presumption against accused accepting illegal gratification:

(c) In any trial of an offence punishable under [clause (v) of subsection (a) of section 9 of] this ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of [assets] or pecuniary resources dis proportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and [Omitted] corrupt practices and his conviction [therefore] shall not be invalid by reason only that it is based solely on such presumption."

7. The above section shows that the Court shall presume that accused had an accretion to his pecuniary resources unless the contrary is proved. We can see that prima facie the properties owned by the petitioner are much more than his known sources of income but at the same time Court has to see that whether the accused was holding any such position or authority and by misusing his powers he could make illegal money. If somebody has made money through buying/selling plots, or through doing two/three part-time jobs during his service with the Government or by plying Suzuki on fare, he may be guilty of misconduct according to service rules but it is debatable whether it comes under the definition of Corruption and Corrupt Practices, which is yet to be determined by the trial Court. Learned counsel for the petitioner has relied upon the case of Anwar Saifullah Khan v. The State 2001 SCMR 1040 wherein a huge amount was involved and the Full Bench of Honourable Supreme Court while granting bail has observed as under:- "At this stage, without deeply scrutinizing the evidence, it is primarily the duty of the trial Court, it cannot be said with certainty that the allocations of L.P.G. made to the co-accused were violative of the rules was made or not."

8. The Honourable Supreme Court further observed in their order while granting bail that Government had not suffered any loss at the hands of the accused whose continuous detention did not appear to be justifiable which involved the question of liberty of a citizen. It is well settled principle of law that bail cannot be withheld as punishment of accusation of non-bailable offence against the accused.

9. Learned ADPG has vehemently opposed the grant of bail to the petitioner on the ground that the bail was rejected by this Court twice on merits and there is sufficient material on record to connect the accused with the alleged offence. He has further stated that prima facie case has been made out against the petitioner and the petitioner is not entitled to bail at this stage of the case. Learned ADPG states that the referred authority is not applicable in this case.

10. Be that as it may, this Court while rejecting second bail application had ordered to the trial Court that the trial should be concluded within statutory period which has not been complied with. The case of the present petitioner is distinguishable from the cases of the people who have mis-appropriated the Government funds. There is no allegation against the petitioner in the entire reference that he has mis-appropriated a single penny belonging to the Government or he has ever mis-used his authority during entire period of his service from Grade-6 to Grade-9.

11. We have gone through the authority reported as Muhammad Saeed Mehdi v. The State 2002 SCMR 282 wherein it has been observed as follows: "We have carefully considered the submissions made by the learned counsel for the parties. The object of a criminal trial is to make the accused face the trial and not to punish on under trial prisoner for the offence alleged against him. The basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. It is also well settled principle of law that bail cannot be withheld as punishment on accusation of non-bailable offences against an accused. It is also a salutary proposition of law that an accused is entitled to expeditions access to justice, which includes a right to fair and expeditious trial without any unreasonable delay."

12. In the instant case, it is an admitted position that the petitioner was arrested on 27-3-2001. His two bail applications have been rejected by this Court in spite of that uptil now only two non-material witnesses have been examined and material witnesses namely Tariq, Asif Jamil and Maqsood Ahmed have not been produced by the prosecution in Court for reasons best known to them.

13. In view of the above mentioned authorities of the Honourable Supreme Court and keeping in view the circumstances of this case, we are of the considered opinion that this is a fit case where bail should be granted to the petitioner/accused. We hereby allow this petition and order release of petitioner/ accused on bail on furnishing solvent surety in the sum of Rs.2,00,000 (Rupees two lac only) with P. R. bond in the like amount to the satisfaction of the trial Court.

14. The observations made herein above are tentative in nature and the trial Court should not be influenced by the above observations. The trial Court should decide the case on merits according to the evidence produced before it by the parties and law. Constitutional Petition No.D-2358 of 2007 stands disposed of. H.B.T./M-187/K Bail granted.