2001 PLP 1040 (SCMR)

MIAN MUHAMMAD AJMAL, J.

By this common judgment, we propose to dispose of Civil Petitions Nos.3161-L and 3162-L of 2000 as they arise out of common order, impugned herein and involve identical factual background.

2. Brief facts are that the petitioner was arrested on 17-11-1999 and was detained at different Police Stations at Islamabad and Lahore. On 29-12-1999, he was served with the orders of detention dated 27-12-1999 signed by Chairman N.A.B., respondent No.2, disclosing that he had been arrested in 4 References pending against him before the learned Ehtesab Bench. The petitioner tiled an application for his release on 14-2-2000, inter alia, on the ground of violation of provisions, of section 24(d) of the N.A.B. Ordinance, which was dismissed by the Accountability Court, Rawalpindi vide order, dated 8-3-2000. Feeling aggrieved, the petitioner tiled Writ Petition No.639 of 2000 before the Lahore High Court, Rawalpindi Bench, which remained pending upto 17-7-2000, when it was sent to the Principal Seat. During the pendency of the above said 4 references, on 24-2-2000, the petitioner was served with the copies of further References Nos.3 of 2000 and 7 of 2000 titled "The State v. Anwar Saifullah and others." On 11-7-2000. a Full Bench of the Lahore High Court, in exercise of its powers under Article 199 of the Constitution, allowed bail to the petitioner in 4 References already pending against him before the Accountability Court No. 1, Lahore, subject to deposit of cash security in the sum of Rs.2 crores with the said Court. The applications dated 22-7-2000 filed by the petitioner for his bail in References No.3 and 7 of 2000 were dismissed by the Accountability Court, Rawalpindi on the same day. He filed two Writ Petitions bearing Nos.14915 and 14916 of 2000 before the Lahore High Court, Lahore for his release on bail in References Nos.3 and 7 of 2000, respectively, which were not fixed for hearing by the High Court, as 'such, he filed C.P.L.A. No. Nil of 2000 before this Court, wherein this Court directed the High Court to commence the hearing of the writ petitions from 2-11-2000 on day to day basis and observed that the decision of the High Court could be assailed before this Court by either side. In consequence, the High Court vide common order dated 7-12-2000 impugned herein, disposed of the writ petitions as under:-- "Petitioner a former Federal Minister for Petroleum and Natural Resources, facing trial before the Judge Accountability Court Rawalpindi/Islamabad of a reference under the National Accountability Bureau Ordinance, 1999 for the alleged corruption, corrupt practice, misuse/abuse of power for allocating L.P.G. quotas to the within mentioned person preferred the captioned Writ Petitions Nos. 14915, 14916 and 639 of 2000 primarily tending to seek bail pending hearing thereof urging multiple pleas. During the course of hearing whereof the learned Special Prosecutor N.A.B. revealed that in both the references under question though 11 and-18 prosecution witnesses have been cited but prosecution has resolved to adduce only 3 witnesses in each case giving up the remainders which at the most would consume two weeks' time whereafter the petitioner would be at liberty to adduce such witnesses as he may deem fit in defence and in all probabilities the case could be concluded within a month's time provided no, hindrance is caused by the petitioner's side, further undertaking that save for any impediment created by the petitioner in finalisation of the proceedings, if the same doesn't mature into reality and the petitioner had to recourse to this Court again on this count he will not oppose the bail plea. In view of the foregoing the interest of justice would seem to be better served if the case is expeditiously concluded. Consequently, turning down the request the learned trial Court seized of the matter is required to finalise the proceedings expeditiously. Accordingly the petition is disposed of."

3. The allegations against the petitioner in the instant references i.e. References Nos.3 and 7 of 2000 are that he as Minister of Petroleum and Natural Resources, by misuse of his authority, allocated L.P.G. quotas on the basis of political patronage and extraneous circumstances to Muhammad Sarwar Khan Kakar, a Minister in the then Balochistan Cabinet, of Balochistan Gas Company (Pvt.) Ltd., and Safdar Ali Abbasi a Senator in the then Senate, of Mehran Gas Company, his co-accused, as such, they made undue ga0s. They as such, committed the offence of corruption and corrupt practices in concert and collusion with each other, hence they were liable to be tried and sentenced for the said offence.

4. The petitioner has prayed for bail in References Nos.3 and 7 of 2000 on the grounds, firstly, that there was no misuse of authority by him in making L.P.G. allocation to his co-accused as he acted strictly in accordance with the provisions of the Government policy and the rules. In support of the plea reliance has been placed on President of Pakistan v. Mrs. Benazir Bhutto 1994 MLD 1969, wherein in an almost similar case, Mohtarma Benazir Bhutto was acquitted of the charges. Secondly, that section 9(a)(vi) of the N.A.B. Ordinance, 1999 could not be made applicable retrospectively as the alleged offence committed by the petitioner relates to 1994 whereas the Ordinance came into force in 1999, as such it was violative of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. Thirdly, that even the present Government in making allocation of L.P.G. quota is following exactly the same policy and the allocation made by the petitioner to his co-accused has also been confirmed by the present Government: Learned counsel for the petitioner contended that four references were filed against the petitioner in which he has been granted bail and two Reference Numbers 3 and 7 of 2000 were filed subsequently. He is in Jail since 17th November, 1999. Learned counsel further contended that the quotas allocated to the co-accused by the petitioner were not only confirmed by the present Government but further quota has been allocated to them. The co-accused have been released by the N.A.B. in pursuance of the agreements, dated 15-6-2000 and as such, in view of the rule of consistency, the petitioner is also entitled to the concession of bail. The co-accused of the petitioner have agreed to make payment of the undue gains earned on the allocated L.P.G., therefore, the Government. has suffered nor loss at the hands of the petitioner. Learned counsel for the petitioner referred to the evidence recorded in the references to contend that the petitioner has not committed the alleged offence. He referred to the impugned order and stated that the Prosecutor General N.A.B. had undertaken before the High Court to conclude the prosecution evidence by 22nd December, 2000 and the defence evidence thereafter was supposed to be concluded within a month, and if the case could not be concluded within the said period, the petitioner's afresh plea for bail would not be opposed by him. The prosecution failed to complete its evidence within its time frame, therefore, the petitioner is entitled to bail. He urged that there is no likelihood that the trial would be concluded in the near future as the learned Judge Accountability Court has proceeded for Haj and defence evidence is yet to be recorded. In Reference No.7 of 2000 no evidence has been recorded so far and it will take considerable time to conclude the trial.

5. On the last date of hearing i.e. 19-1-2000, both the learned Attorney-General and the then Deputy Prosecutor-General for Pakistan, N.A.B. had conceded that this Court has the power to grant bail under the N.A.B. Ordinance as ouster of jurisdiction clause does not include the Supreme Court of Pakistan. They, however, submitted that it, would be appropriate if this case is clubbed with the Constitutional Petitions wherein vires of the N.A.B. Ordinance have been questioned, in which 23 formulations have been framed by this Hon'ble Court. On merits, he opposed the bail applications on the ground that the petitioner has misused his authority by allocating L.P.G. quota to his co-accused without observing the prescribed rules for allocation of the same. Learned Prosecutor-General N.A.B. produced copies of order sheets from 29-1-2001 to 16-2-2001 and submitted that Reference No.3 of 2000 could not be concluded by .20th instant due to the adjournments sought by the learned counsel for the petitioner: 6: These petitions were heard on 19-1-2001, on which date the learned Attorney-General for Pakistan and the then Deputy Prosecutor-General, N.A.B. stated that only two witnesses are to be examined and the trial would be concluded by 20-2-2001 without fail. In this view of the matter, the case was adjourned to 21-2-2001 to consider the question for grant of bail to the. petitioner. Today, we were informed that the prosecution has concluded its evidence in Reference No.3 of 2000 and petitioner's statement has also been recorded but defence evidence is yet to be recorded. In Reference No.7 of 2000, it was conceded that no evidence has been recorded so far.

7. 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 N.A.B. cases is concerned, the learned Attorney-General and the then Deputy Prosecutor-General N.A.B., on 19-1-2001 had conceded that this Court has the power to grant bail in N.A.B. 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 N.A.B. 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' used 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 N.A.B. 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 I jurisdiction has been ousted to grant bail to any accused of the offence under' the N.A.B. 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 Petitions Nos. 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."

8. As far the contention of the learned Attorney-General that this case may be clubbed with the Constitutional petitions, it cannot be entertained as in those cases some . provisions of the N.A.B. Ordinance have been challenged whereas in the instant case the only question involved is that of the grant of bail.

9. The petitioner has been granted bail in almost similar four references by the High Court on 11-7-2000. In the instant two references, the allegations against the petitioner are that he allocated 20 tons of L.P.G. per day to Muhammad Sarwar Khan Kakar of Balochistan Gas Company Limited and 25, tons of L.P.G. quota to Safdar Ali Abbasi and others of Mehran Gas Co. without observing the prescribed rules, as such, he misused his authority. At this stage, without deeply scrutinising the evidence, which 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, as it is for the trial Court to determine after assessment of the evidence whether any violation of the rules was made or not. The objection of the Prosecutor -General that the defence caused delay in the conclusion of the trial has no substance. The perusal of the order-sheets in Reference No.3 of 2000 would reveal that on 2-2-2000, statement of Abdul Jalil Khan, Investigating Officer was recorded, but he could not be cross-examined as Mr. M. Sardar Khan, learned counsel for the petitioner could not attend the proceedings due to his ailment for which application had been sent. However, on the next date i.e. 8-2-2001, the witness was cross-examined and prosecution evidence was concluded. In connected Reference No.7 of 2000, it was conceded that no prosecution witness has been examined. In this view of the matter, it cannot be said that petitioner's side has caused any delay in disposal of the references. It may be noted that the Prosecutor-General N.A.B. during the 'hearing of the writ petitions before the Full Bench of the High Court, stated that cases could be concluded within a month and a half provided no hindrance is caused by the petitioner's side and if it is not concluded within the said period the petitioner may approach the High Court again for bail which would not be opposed by him. Except for one adjournment in Reference No.3 of 2000, there is no allegation that the petitioner has caused any delay in the disposal of the said references whereas prosecution failed to record any evidence in the other Reference No.7 of 2000, therefore, the delay in disposal of the references being not attributable to the petitioner's side, the petitioner is entitled to the concession of bail. There is no allegation that the petitioner has gained anything out of the allocations of L.P.G. made to his co-accused. The cases against the co-accused of the petitioner have been amicably resolved as per agreements, dated 15th June, 2000, whereby the companies have agreed to make payments of the undue gains as per detail given therein and on receipt of the first payment, the pending cases against them were withdrawn. As such, the allocations made by the petitioner to his co-accused, were not only confirmed but they were declared eligible for further allocation of L.P.G., from PARCO. In this view of the matter, the Government has not suffered any loss at the hands of the petitioner who D himself, admittedly has not gained anything. In such circumstances, the petitioner's continuous detention does not appear to be justifiable which involves the question of liberty of a citizen. It is well-settled principle of law that bail cannot be withheld as punishment on accusation of non-bailable offence against the accused. On tentative assessment of the material on E record, we are of the view that the petitioner has made out a case for his release on bail. We accordingly, `convert these petitions into appeals and while allowing the same, the petitioner is admitted to bail in the sum of Rs.20,00,000 (rupees two million) with one surety in the like amount to the satisfaction of the Registrar of this Court. On 21-2-2001, following short order was passed:-- "For detailed reasons to be recorded later in the judgment, we convert both these petitions into appeals and allow the same with direction that appellant Anwar Saif Ullah Khan shall be released forthwith on bail subject to his furnishing bail bonds in the sum of . Rs.two million (Rs.20,00,000) with one surety in the like amount to the satisfaction of the Registrar of this Court. It is further directed that appellant shall deposit his passport with the Registrar of this Court." These are the reasons in support of above-quoted short order. N.H.Q./A-138/S Bail allowed.