2018 PLP 65 (YLRN)

ISHTIAQ IBRAHIM J.

Petitioner Atta ur Rehman has filed this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 read with 3rd Proviso to section 497, Cr.P.C. for his release on bail on statutory ground in case FIR No.09 dated 21.01.2015 under sections 324/353/ 148/149, P.P.C. read with section 4/5 Explosive Substance Act / 7 ATA/15 Arms Act /15 PPO registered at police station CTD Mardan.

2. According to the First Information Report that Complainant Malik Sher Khan SHO along with other police contingents were present in village Malik Abad in connection with search operation of POs and Terrorists under the supervision of their high-ups when he received an information regarding presence of some terrorists in the mountain f Malik Abad. On this they rushed to the spot where on seeing the police party, the terrorists started firing at them. The police party also fired at them in self defence. After cessation of firing police searched the area and found a dead body of unknown terrorist and recovered from his possession one Kalasinkove, charger containing 11 live rounds of 7.62, bandolier, spare charger, two empty, one hand grenade along with cash amount of Rs.700/- from his pocket while remaining terrorists namely Frooq, Maqsood, Said Halim Shah, Israr, Amin, Fazal Nawab, Attaullah, Said Jamil Shah, Abbas alias Shoukat, Majid alias Khalid and Atta ur Rehman son of Abdul Halim, Bakhtiar alias Phalwan,Faiz Muhammad, Anwar Said and Ibrarul Haq succeeded in decamping from the spot. The complainant drafted the murasila and sent the same to the PS for registration of the case against the above named accused.

3. After arrest of the petitioner in the present case, he approached this court by filing writ petition No.2237-P/2015 for his release on bail, which was dismissed by his Lordship, Hon'ble the Chief Justice vide judgment dated 17.12.2015. Now the petitioner has filed the present petition for his release on bail on ground of delay in conclusion of trial.

4. We have heard arguments of learned counsel for the parties and gone through the record.

5. Perusal of order of his Lordship, the Hon'ble Chief Justice passed in Writ Petition No.2237-P/2015 decided on 17.12.2015 reveals that following observations were made therein: "Before parting with the judgment, we have observed with great concern that after the registration of both the FIRs bearing No.01 and 09, the Special Court has not been made functional and even a senior District and Sessions Judge has been posted by this Court for the purpose on the request of the Federal Government. We, in the circumstances of the case, would like to advise the Federal Government through its Secretaries Defence and Law to take necessary measures/ arrangements to make the Special Court functional, so that the petitioners as well as the order co-accused of such like offences could be tried and prosecuted without wasting any further time. We expect that the needful shall be done by the Government as early as possible but not later than two months after the receipts of this judgment, failing which, the petitioners would be a liberty to seek their appropriate relief provided under the law. Copies of this judgment be sent to the Federal Government through its Secretaries, mentioned above, for information and strict compliance."

6. First of all, we would like to tackle the question of maintainability of the instant writ petitions. As per section 18 of the Protection of Pakistan Act. 2014, provisions of sections 374, 426, 435, 439A, 491, 496, 497, 498 and 561-A of the Cr.P.C. are not applicable to the Act, ibid, but, at same time, we see that there is no legal bar to seek bail through a petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and that's why , the Hon'ble Supreme Court while facing with similar situation in NAB case in Khan Asfandyar Wali and others v. Federation of Pakistan and other (Supra) held in the following manner: (r) National Accountability Bureau Ordinance (XVIII of 1999)

S. 9(b)

Constitution of Pakistan (1973), Art.184(3)

Constitutional Petition under Art.184(3) of the Constitution before Supreme Court

Vires of National Accountability Bureau Ordinance, 1999

Provision of S.9(b) of the Ordinance purports to deny to all Courts, including the High Courts, the Jurisdiction under Ss:426, 491, 497, 498 and 561-A, Cr.P.C. or any other law for the time being in force, to grant bail to any person accused of an offence under the Ordinance

Validity

Superior Courts have the power to grant bail under Art.199 of the Constitution independent of any statutory source of Jurisdiction such as S.497, Cr.P.C.

Section 9(b),National Accountability Bureau Ordinance, 1999, to that extent is ultra vires the Constitution and the same is to be suitably amended accordingly. The superior Courts under Article 199 of the Constitution" remain available to their full extent ....notwithstanding anything contained in any legislative instrument enacted by the Chief Executive". Whereas, section 9(b) of the National Accountability Bureau Ordinance 1999 purports to deny to all Courts, including the High Courts, the jurisdiction under 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 an offence under the National Accountability Bureau Ordinance. 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 Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably. So, in view of the above referred citation and by taking guideline there from, we can safely say that these writ petitions being petitions for bail in substance are maintainable as the petitioners have no other remedy to seek bail under the Criminal Procedure Code. 8(sic). Its been nine months when the directions were given by this Court in the above mentioned writ petition unfortunately, nothing has been done in this regard. This court being custodian of the fundamental right of the citizen's would ensure justice to all in accordance with law. Article 10-A of the 1973 Constitution provides for "Right to fair trial" of course speedy and expeditious justice is first and foremost requirement of fair trial petitioner is in custody for almost 20 months since his arrest what to say of conclusion of trial, even the trial has not yet commenced only for the reason that court under the POPA has not yet been made functional. 9. Learned AAG submitted a letter No.13902-07/A dated 29.8.2016, wherein the Provincial Government has asked for extension of the Act or to authorize ATC to decide the pending matters. But keeping in view the present pace of the Governments in the matter, we are left with no choice but to accept this writ petition and grant bail to the petitioner. 10. For the above mentioned reasons this writ petition is allowed and the petitioner Atta ur Rehman is admitted to bail on statutory ground provided he furnishes bail bonds to the tune of Rs.4,00,000/- (Four lac) with two sureties each in the like amount to the satisfaction of Additional Registrar(Judicial) of this Court who shall ensure that the sureties are local reliable and men of means. The above are reasons of our short order of even date. WA/254/P Bail granted.