' MUHAMMAD AKHTAR SHABBIR, J.---This judgment will decide Writ Petitions Nos.694 and 1403 of 2004.
2. The facts giving rise to the present petitions are to the effect that the petitioners had ' been serving in Local Government Department. They have been involved by the NAB Authorities in Reference No,94 of 2004 on the allegation of misappropriation/embezzlement of Rs,95.83 millions through corruption and corrupt practices committed by them along with his other co-accused.
Consequently, notice was issued to Tariq Saeed petitioner to join the investigation. He has- invoked the Constitutional jurisdiction of this Court and was admitted to ad interim pre-arrest bail vide order dated 16-3-2004 subject to his furnishing bail bonds in the sum of rupees one million with two sureties to the satisfaction of the Accountability Court No,3, Rawalpindi.
3. Tariq Iqbal Khan petitioner has also been arrested by the NAB Authorities. Both the petitioners have invoked the Constitutional jurisdiction of this Court for quashment of the proceedings of the reference filed against them before the Accountability Court No,3, Rawalpindi.
4. The allegation against both the petitioners is that a Scheme for construction of Rawalpindi Municipal Corporation Complex has been initiated in the year 1989 by ex-Mayor, Rawalpindi, which has been approved by the House on 20-4-1991 at the cost of Rs,90 millions including the cost of furniture/furnishing worth Rs,10 millions and fixed consultancy charges. The original covered area was 220,000 square feet and it was enhanced to 274,088 square feet, but instead of increasing revised estimated cost proportionately, a lavish estimate was got prepared from the consultant who escalated it to Rs,213.8 millions, an approval of which has not been sought from the House and according to the Rules, the technical sanction of the estimate was not obtained. Tenders have been called and lowest bid of Rs,253 millions against the estimated cost of Rs,213.8 million was accepted and a letter was issued to the lowest bidder for Rs,253 millions on 5-7-1992, whereby on the intervention of the then Commissioner, Rawalpindi, it was reduced to .Rs,230 millions and subsequently work order had been issued to the said Contractor on 10-11-1992. On receipt of information that the accused including the present petitioners had indulged in corruption , and corrupt practices in preparation of estimate, award of contract and execution of scheme, the Investigating Officer of NAB was authorized to investigate the case.
5. After the investigation, Reference No,94 of 2003 has been submitted in the Accountability Court against eight persons including the present petitioners. Out of the eight accused persons, five have gone for plea-bargain and deposited the loss caused to the Corporation and as a result of plea- bargain; they were let off by the order of the Court.
6. Report and parawise comments from the NAB Authorities have been received wherein the contentions raised in the writ petition were controverted and it was asserted that both the petitioners have committed the corruption and corrupt practices and participated in causing loss to the exchequer of Municipal Corporation, Rawalpindi to the tune of Rs,98.83 millions.
7. Learned counsel for Tariq Saeed petitioner contends that the petitioner has received a notice in June, 2001, from the respondents to join the investigation, who in response thereto joined the investigation and faced questions and queries put by the Investigating Officer. He further contends that the wife of the petitioner Surraiya Tariq was also brought to the ambit of investigation, who fully cooperated with the NAB Authorities and furnished all information required from her under section 19 of the National Accountability Ordinance, 1999, with regard to her assets and source of income etc. He submits that during the investigation, the petitioner has been taken into custody and Reference No,7 of 2001 has been filed against the petitioner in Accountability Court at Rawalpindi. He further submits that to end the mental agony and torment given to the petitioner and his family members, the petitioner went on to "plea-bargain" and as a result of which a settlement was made between the petitioner and the respondent, the total value of Reference No,7 of 2001 allegedly the loss caused to Zila Council Lahore was Rs,61.70 millions and the liability of the petitioner in that reference was set out/worked out to be not more than six millions (Sixty lac).
However, according to the terms and conditions, the petitioner consented to return an amount of Rs,13 millions and according to the terms of compromise, Rs,6.6 millions have been paid to the NAB through Pay Orders dated 12-6-2001 and 29th May, 2001, and undertook to pay the balance amount of Rs,6.5 millions within next six months for this PIC IC Bank stood surety for the payment of the outstanding amount . As a result of the said settlement, the petitioner was released by the order of the Judge Accountability Court on 28-7-2001. Learned counsel further submits that the petitioner has been under the custody of NAB Authorities for a sufficient long period and during that period, the petitioner was not confronted with the present allegation.
8. The petitioner in his plea-bargain has offered to pay Rs,13 millions a sum beyond the amount paid by the other co-accused. In view of that plea-bargain, the subsequent reference against the petitioner is against law and liable to be quashed as the petitioner was not responsible for causing loss to Rawalpindi Municipal Corporation, and that due to his efforts, the colossal amount was saved and the amount of contract was reduced from Rs,253 millions to Rs,230 millions and that the petitioner was not afforded an opportunity to prove his innocence during the investigation.
9. Learned counsel for the petitioner Tariq lqbal Khan contends that he was arrested along with Muhammad Ayub, ex-Assistant Municipal Engineer BS-17 by the staff of the NAB and at the time of his arrest, grounds of arrest were not served to him as provided in section 24-D of the NAB Ordinance, 1999. The petitioner remained on physical remand for fifteen days on the request of the Investigating Officer, who during the said period pressurized the petitioner to enter into a "plea- bargain" and he considering himself as innocent did not surrender himself before the Investigating Officer and thereafter he was sent to judicial lock-up by the order of the Accountability Court. He further contends that his co-accused Muhammad Ayub Khan against whom, the same allegations were levelled by the NAB Authorities was sent on judicial remand, he was released on 5-1-2004 without any "plea-bargain". Learned counsel submits that the petitioner was not posted in Municipal Corporation, Rawalpindi, at the time of operation of acceptance of estimate of Rs,213.8 millions from the Consultant, registration of Contractors, calling of tender, recommendation of acceptance, approval from the House, approval of rates of the Contractor by the Secretary L.G. & R.D. And subsequent approval of rates by the then Commissioner for Rs,230 millions and specially at issuance of work order and starting execution work prior to technical sanction. Lastly, he argues that the petitioner has been illegally arrayed as accused/respondent in the reference and the petitioner has not committed any offence of corruption and corrupt practices.
10. On the other hand, learned A.D.P.G.A. For NAB has opposed the arguments of the learned counsel for the petitioners contending that both the officials are accused in the reference and prima facie evidence regarding their involvement in the commission of offence of corruption and corrupt practices punishable under the NAB Ordinance is available. He further contends that the reference has been sent to the Accountability Court, which is supported by the strong material and this Court is not competent in exercise of its writ jurisdiction to quash the proceedings initiated by the NAB Authorities against them, as their guilt or innocence is to be determined by the Court after recording the prosecution and defence evidence. He further contends that the bail application of the petitioner Tariq Iqbal Khan was dismissed by this Court as well as by the apex Court and his request for his release on bail at this stage is not sustainable. He submits that the application of the petitioner Tariq Iqbal Khan filed under section 265-K, Cr.P.C. For his acquittal from the charge was also dismissed on 29-4-2004.
11. We have heard the learned counsel for the petitioners as well as learned A.D.P.G.A. And considered the record. Since Reference No,94 of 2000 against the petitioners on the allegation of corruption and corrupt practices provided under section 9 of the NAB Ordinance, 1999, has been referred to the Court which was supported by the material/evidence collected by the NAB. And their guilt or innocence would be determined by the Court, which cannot be gone into without recording the prosecution evidence, and the case of the petitioners is not of no evidence .Or based on mala fide, therefore, this Court in exercise of its Constitutional jurisdiction would always be reluctant to interfere with such-like matters as laid down in the case of Brig. (Retd.) Imtiaz Ahmad v.
Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCM R 2142. In this view of the matter, the prayer for quashment of proceedings of the reference pending before the Accountability Court is declined.
12. Learned counsel for the petitioner has raised a legal objection that the grounds of arrest of Tariq Iqbal petitioner have not been informed or supplied to the petitioner. We would like to examine this legal objection. For further ready reference and benefit, the relevant provision of section 24(d) of the NAB Ordinance is reproduced below:-- "24(d):--Notwithstanding anything contained in the Code, where the holder of a public office or any other person accused of an offence is arrested by the NAB under this Ordinance, NAB shall, as soon as may be, inform him of the grounds and substance on the basis of which he has been arrested and produce him before the Court within a period of 24-hours of arrest excluding the time necessary for the journey from the place of arrest to the Court and such person shall, having regard to the facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding ninety days and the Court may remand an accused person to custody not exceeding fifteen days at a time and for every subsequent remand the Court shall record reasons in writing copy of which shall be sent to the High Court."
13. This objection has already been dealt with by the Honourable Judges of the Supreme Court in the case of Abdul Qadir v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 5 others 2002 SCM R 1478 observing that conveyance of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of section 24(d) of the above provisions of law, which is mandatory in nature, and has to be complied with in letter and spirit as the same is based on the Constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Article 10 of the Constitution. It was further observed by the Honourable Judges of the apex Court that the provisions of section 24(d) of the NAB Ordinance with regard to the arrest and detention of an accused and his production before a Magistrate or competent Court within a period of twenty four hours for remand are synonymous with the provisions of Article 10(1) and (2) of the Constitution, which provide safeguard and protection to the personal liberty as the liberty of a person in a State is inviolable of the said provisions of the Constitution and the Ordinance would render the arrest and detention of the detenu illegal.
14. The petitioner Tariq Saeed has been arrested in Reference No,7 of 2001 and after making his "plea-bargain" and deposit of colossal amount, he was released on bail by the Accountability Court on 28-7-2001. There is no cavil with the fact that the allegations against the petitioner in the present reference were not intimated to him. Thereafter, he was involved in the present reference by the NAB Authorities with regard to the matter pertaining to the construction of Rawalpindi Municipal Corporation Complex and the said petitioner was made as an accused on the mere statement of principal accused and the Sub-Engineer. There was no case against him as he was not the Chief Engineer/Incharge of the Project when the contract had been awarded. He was the one who, after his appointment as Chief Engineer, reduced the contract amount of Rs,25.30 Crore and also managed to get the escalation clause deleted from the contract, thereby saving millions of rupees to the national exchequer. There is no incriminating documentary evidence against the petitioner. The entire prosecution's case against him rests merely upon a contractor who was declared as thief by the prosecution itself. There was no answer with the learned D.A.P.G.A. That while he was under custody in the earlier reference why he was not arrested and Challaned in the instant reference. This petitioner has already suffered the agony of mental and physical torture caused to him by the NAB Authorities, as a result of which he made a "plea-bargain" and bound down himself to make the payment of a considerable amount of Rs,13 millions.
15. In the present case, Tariq Saeed petitioner is entitled to the concession of the bail relying on a case of Anwar Saifullah Khan v. The State 2001 SCMR 1041. In the instant case, petitioner Anwar Saifullah Khan had been arrested in four references by the Ehtesab Authorities on the ground that he applied for his release on bail, inter alia, on the ground of violation of section 24(d) of the NAB Ordinance, which was declined by the Accountability Court, Rawalpindi, on 8-3-2000. Feeling aggrieved, there petitioner filed Writ Petition No,639 of 2002 before the Lahore High Court, Rawalpindi Bench, Rawalpindi. During the pendency of that writ petition with regard to four references, he was further served with copies of further References Nos. 3 and 7 of 2000 and the Full Bench of the Lahore High Court in exercise of the powers under Article 199 of the Constitution, allowed bail to Anwar Saifullah petitioner in four references pending against him, but his bail application filed in References Nos.3 and 7 of 2000 was disposed of by the High Court on 7-12-2000 which was assailed before the Honourable Supreme Court and his petition for leave to appeal was converted into an appeal and he was allowed bail in the remaining References Nos.3 and 7 of 2000.
16. The case of Tariq Iqbal Khan is that at the time of approval of the estimate, sanctioning of tenders and issuance of acceptance letter of the contract in favour of the Contractors, he was not posted as the Engineer Incharge and neither has he pre-qualified the Contractors. His case is that the Investigating Officer has ignored the Punjab Local Council Work Rules, 1981, and the case against the petitioner is not made out. Learned D.A.P.G.A. When confronted that the co-accused of the petitioner namely Muhammad Ayub was arrested by the NAB Authorities on the allegation of corruption and corrupt practices and was sent to judicial remand for fourteen days but he was released without plea-bargain, he could not respond. The case of the present petitioner is at par to that of his co-accused.
17. In view of the contentions raised by the learned counsel for the petitioners, the case against the petitioners to declare them guilty of misuse of official position or misappropriation of public funds for their own use or any relatives or friends is yet to be determined by the trial Court and prosecution has not been able to collect any direct evidence that the amount sanctioned for the Project was not actually spent on the work for which it was approved. The truth or otherwise of such allegation could only be determined at the trail after analyzing the evidence that might be produced by the parties. The trial of the reference has not yet commenced for no fault attributable to the petitioners. It is settled proposition by the apex Court that object of National Accountability Bureau Ordinance, 1999, as contained in its pre-amble provided for expeditious trial of scheduled offences within shortest possible time as reassured in section 16 of the NAB Ordinance postulating day to day trial of a case and its conclusion within thirty days and such object did not seem to be near its achievement. In such circumstances, this Court in exercise of its jurisdiction under Article 199 of the Constitution has the power to grant bail in the offences under the Ordinance in appropriate cases. Reference in this case can be made to Muhammad Saeed Mehdi v. The State and 2 others 2002 SCM R 282 and. Shahida Faisal v. Federation of Pakistan 2001 SCM R 294.
18. As to the objection of the learned A.D.P.G.A. For NAB that the petition for bail had already been dismissed by the trial Court as well as by the Honourable Supreme Court, suffice it to observe that it was not pressed on merits; rather it was on medical ground. As observed in the preceding paragraph, there is no likelihood of early finalization of the trial of the reference and accused is entitled to expeditious access to justice which includes a right to fair and expeditious trial without unreasonable delay, therefore, the bail cannot be held as punishment on accusation of non- bailable offences against the accused as laid down in Saeed Mehdi's case cited supra.
19. For the foregoing reasons, we find that the petitioners have not been declared guilty by the National Accountability Court as yet and keeping in view the principle of law laid down by the superior Courts that every accused/person shall be presumed to be innocent unless convicted by a Court of competent jurisdiction and without determining of the guilt of an accused person, he cannot be detained in jail indefinitely.
20. Consequently, ad interim pre-arrest bail already granted to Tariq Saeed petitioner by this Court On 16-3-2004 is confirmed subject to his furnishing fresh bail bonds in the sum of Rs,2-Crores (Rupees two Crores) with two sureties in the like amount to the satisfaction of the Accountability Court. Similarly, Tariq lqbal Khan petitioner is also admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,2 crores (Rupees two Crores) with two sureties in the like amount to the satisfaction of the Accountability Court. The petitioners shall deposit their Passports in the trial Court and their names shall also be included in the E.C.L. So that they may not abscond.
' A copy of this judgment be sent to the Secretary, Ministry of Interior, Islamabad, for necessary action. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.