P L D 2002 Supreme Court 546 (PLP)

6. Learned counsel for the petitioner contended that the second reference wa filed on 1‑6‑2001 but the trial has not been concluded. He submitted that from his initial arrest i.e. 16‑11‑1999 up to 26‑3‑2002 the total period of detention comes to more than 27 months, out of which 1‑1/2 year was spent in the trial of the first Reference which was dropped and not taken to its logical conclusion, the petitioner was released and thereafter he was again arrested in the present Reference from the hospital and is facing trial for the last about 9 months. He urged that the petitioner is a chronic patient of different serious diseases including heart, hypertension and stomach ulcer etc. and remained admitted in various hospitals from time to time. He submitted that in view of the sickness of the petitioner, he was referred to Medical Board by the Accountability Court, who after examining him, opined vide its report dated 4‑3‑2000 that he has ischaemic heart disease with hypertension and was advised admission in C.C.U. first to stabilize followed by cardiolite scan, and if needed Angiography. Learned counsel also referred to different medical reports of different hospitals to contend that the petitioner being an old patient of different diseases remained under medical care from time to time. He further submitted that neither he is being provided proper medical aid nor the same is available in Jail Hospital. According to the learned counsel for the petitioner, the prosecution has failed to conclude the trial as directed by this Court vide its order dated 6‑2‑2002, therefore, the petitioner be released on bail both on the ground of delay in the conclusion of the trial as well as on medical grounds.

7. Learned counsel appearing for the respondent submitted that in cases registered under the National Accountability Bureau Ordinance, 1999 (hereinafter to be called the Ordinance), bail cannot be granted by any Court as the words used in section 9(b) of the Ordinance are that ' no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance', therefore, the petitioner cannot be granted bail by any Court including this Court. He submitted that in pursuance' of the order of this Court dated 6‑2‑2002 prosecution has concluded its evidence and now it is the turn of the defence to produce its evidence.

8. We have heard the learned counsel for the parties and have gone through the record of the case. As far as the contention of the learned counsel for the respondent that no Court has jurisdiction to grant bail in NAB cases, the same has no substance as the word 'Court' has been defined in section 5(g) of the Ordinance which means the Accountability Court, as such, only the jurisdiction of the Accountability Court has been ousted from granting bail to the accused. This point was considered by this Court in case of Anwar Saifullah Khan v. The State (2001 SCMR 1040), wherein it was held:‑‑ "We have heard the learned counsel for the parties at length. As far the question of jurisdiction of this Court with regard to grant of bail in NAB cases is concerned, the learned Attorney‑General and the then Deputy Prosecutor‑General, NAB, on 19‑1‑2001 had conceded that this Court has the power to grant bail in NAB cases because the ouster of jurisdiction clause does not apply to this Court as it does not include Supreme Court of Pakistan. It would be proper to refer to section 9(b) of the NAB Ordinance, which reads as under: 9. (a)........ (b) All offences under this Ordinance shall be non‑bailable and, notwithstanding anything contained in sections 426, 491, 497, 498 and 561‑A or any other provision of the Code, or any other law for the time being in force no Court (including the High Court) shall have jurisdiction to grant bail to any person accused of any offence under.this Ordinance. (c)........ (d)........ In the above provision of law, the words ' no Court' before the words 'including the High Court' indicate that earlier mentioned Court is a Court subordinate to the High Court, as such, it is the trial Court whose jurisdiction alongwith the High Court, has been ousted to grant bail to any person accused of any offence under the NAB Ordinance. The word 'Court' has been defined in clause (g) of section 5 of the Ordinance, which means Accountability Court. Hence, the phrase 'no Court including the High Court' means the Accountability Court and the High Court, whose jurisdiction has been ousted to grant bail to any accused of the offence under the NAB Ordinance. Insofar as Supreme Court of Pakistan is concerned, it appears that it has specifically been excluded and as such ouster clause is not applicable to this Court. The above‑quoted subsection came into consideration in Civil Petition No. 1630‑L of 2000 (Mrs. Shahida Faisal v. Federation of Pakistan and others) and 1662‑L of 2000 (Malik Ghulam Muhammad Murtaza Khan v. Federation of Pakistan and 2 others) and was interpreted as under:‑‑ From the bare reading of this section, it is manifest that the Courts other than the Supreme Court are covered under the said sections, for, it has been expressly mentioned in this section that the Courts, including the High Court shall have no jurisdiction to grant bail. The omission of the words 'Supreme Court' is significant, therefore, the jurisdiction of this Court under this section is not barred to grant bail to such persons'." It is pertinent to point out here that in pursuance of the judgment of this Court in case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) certain provisions of NAB Ordinance were declared to be ultra vires of the Constitution, relevant paragraph wherefrom with regard to bail granting power of the High Court is as under:‑‑ "It was held in the case of War Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution 'remained available to their full extent not withetanding anything contained in any legislative instrument enacted by the Chief Executive'. Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497 498 and 561‑A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of any offence under the NAB Ordinance. It is well‑settled that the superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably." Consequently, Ordinance XXXV of 2001 was promulgated, section 8 whereof amended subsection (b) of section 9 of the Ordinance, in that, after the word "Court" the words "including the High Court" were omitted and after omission of the said words, the existing clause (b) of section 9 of the Ordinance reads as follows:‑‑ "All offences under this Ordinance shall he non‑bailable and notwithstanding anything contained in sections 426, 491, 497, 498 and 561‑A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance." After the amendment, the jurisdiction of the Accountability Court for grant of bail remained ousted whereas after the omission of the words including the High Court' the High Court has jurisdiction to grant bail in NAB cases under Article 199 of the Constitution as held in the case of Khan Asfandyar Wali v. Federation of Pakistan (supra).

9. Under section 16 (a) of the Ordinance, all persons accused of a scheduled offence are exclusively triable by the Courts established under the l Ordinance and the cases have to be heard from day to day and disposed of within 30 days but in the instant case trial has not been concluded in 9 months whereas the petitioner is in custody for the last about 27 months. Although delay in disposal of the case was attributed by both the parties to each other but the order sheet of the trial Court shows that both the parties have been taking adjournments, therefore, both the parties were responsible for delay in disposal of the case. Notwithstanding the merits of the case, the inordinate delay in disposal of the trial is a good ground recognised by this Court in various judgments holding the same to be abuse of process of the Court and treating it as sufficient ground for grant of bail.

10. As far as medical ground is concerned, there is sufficient documentary evidence on record to show that the petitioner is suffering from different diseases as he remained under specialists' treatment in various' hospitals from time to time. Heart disease coupled with unstable hypertension may endanger his life in jail and on medical ground, too, the; petitioner is entitled to be released on bail. On 26‑3‑2002 this Court passed the following order:‑‑ "We have heard Sh. Zia Ullah, Advocate Supreme Court as well as Mr. Shaukat Javed Malik, Advocate Supreme Court at length, and for reasons to be followed subsequently in our detailed order, we convert this petition into appeal and allow the same with the consequence that petitioner Ch. Zulfiqar Ali shall be released on bail subject to his furnishing bail bonds in the sum of Rs.25,00,000 (Rupees twenty‑five lacs only) with one surety in the like amount to the satisfaction of the Accountability Court at Lahore. The above are the reasons in support of the said short order. N.H.Q./Z‑100/S Bail allowed.