1. ' NADEEM AZHAR SIDDIQUI, J.---The petitioner who is son of Muhammad Younus (hereinafter referred to as the accused) has fired this petition with the following prayers:--
(a) Declare that the detention of the petitioner's father is in violation of Articles, 4, 10, 14 and 25 of the Constitution of the Islamic Republic of Pakistan and violative of the fundamental rights as guaranteed under the Constitution.
(b) To direct immediate release of the petitioner's father in order to aid the fair dispensation of justice.
(c) Any other/further or additional relief, which this Honourable Court may deem fit and proper in the circumstances of the case.
2. ' The facts necessary for disposal of the petition are that the accused was the Director of Alliance Motors from July, 1987 till August, 1988 and State Bank of Pakistan filed Criminal Original Miscellaneous Application No,106 of 1988 against M/s. Alliance Motors and others in which the accused was cited as one of the co-accused who obtained bail before arrest on 22-1-1990. The accused was arrested on 22-11-2002 in NAB Reference No,28 of 2002. It is submitted that on the basis of investigation report in line three References were filed. First interim Reference was filed on 17-9-2002, second supplementary Reference was filed on 3-12-2002 and third reference was filed on 9-4-2003 under section 18(g) of the NAB Ordinance. It was stated that accused is a chronic heart patient and undergone coronary bypass operation in the year 1999. Earlier Bail Application No,251 of 2003 was preferred which was dismissed on 29-9-2003. In all the prosecution cited 191 witnesses out of which at the time of filing of the petition only eleven witnesses were examined, who have not implicated the accused. In the same Reference 19 accused persons were released on bail.
3. ' We have heard Mrs. Ismat Mehdi, learned counsel for the petitioner, and Mr. Shafaat Nabi Khan Sherwani, DPG, NAB.
4. ' Mrs. Ismat Mehdi, learned counsel for the petitioner submits that she is pressing this petition for the purpose of seeking release of the accused on bail on the following grounds:--
(1) Delay in completion of trial and non-compliance of mandatory provisions of NAB Ordinance.
(2) Rule of consistency.
5. ' Regarding her first ground she contends that the accused was arrested on 22-11-2002 and since then he is under custody and out of 191 witnesses cited by the prosecution only 22 were examined and there appears to be no possibility of an early conclusion of trial, she referred to section 16 of the NAB Ordinance which provides that the case shall be heard from day to day and shall be disposed of within thirty days. On the other hand Mr. Shafaat contends that the accused was duly nominated in the reference and involved in cheating of thousands of innocent persons and that the provisions of section 16 are directory and not mandatory and the trial is not vitiated by not completing the trial within 30 days. Learned counsel for the petitioner relied upon the following reported and unreported cases:--
(1) Agha Jehanzeb v. NAB and others (2004 PCr.R 1508).
(2) Muhammad Salim Yousuf v. State (C.P. No,D-252 of 2004).
(3) (i) Nasrullah' Qureshi v. The State, (ii) Ahmed Ali Qureshi v. The State and (iii) Muhammad Yahya v. The State (C.Ps. Nos.D-1307 to 1309 all of 2004).
6. ' On the other hand the learned D.P.G. NAB, has relied upon (2003 M LD 777).
7. The accused is under custody for the last more than three years. Out of 191 witnesses only 22 witnesses were examined so far and there appears to be no chance of early disposal of Reference.
8. The learned DPG could not dispute this position. The non-conclusion of trial within the A statutory period of 30 days amounts to abuse of process of law and gives right to the accused person to seek release on bail. In this case the delay in conclusion of trial is more than three years and there appears to be no plausible reasons for such inordinate delay. The delay in conclusion of trial was considered by the D.B. Of this Court in which one of us (Anwar Zaheer Jamali, J.) was a member and while dealing the issue of delay relying upon the case of Ch. Z,ulfiqar Ali v. The State (PLD 2002 SC 546) it has been held that:-- "---it may be observed that delay by itself is no more a valid ground available to an accused in view of the deletion of subsections 3 and 4 of section 497, Cr.P.C. But still in appropriate cases looking to the inordinate delay to avoid abuse of the process of the Court and considering the question of hardship, same can be taken into consideration as valid ground for grant of bail to an accused. This view of the matter is fortified from the case of Chaudhry Zulfiqar v. The State (PLD 2002 SC 546). In this .Case the accused in custody for about 27 months in a NAB case, was admitted to bail with the remarks that notwithstanding the merits of the case, the inordinate delay in disposal of the trial is a good ground recognized by the 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."
9. ' In another order of this Court the learned D.B. Has released the accused on bail with the following observations:-- "----We have noticed that in the instant case the alleged culpability of the applicants is lesser in degree as compared to Muhammad Saleem Yousuf and they have been in custody for almost 20 months. The prospects of conclusion of the trial also do not appear to be in the offing though the law requires that it should be decided within one month."
10. ' In Agha Jehanzeb v. NAB and others (2004 PCr.R. 1508) case the Hon'ble Supreme Court while releasing the accused on bail on the ground of delay observed as under:-- "---but would direct that after submission of challan in this case on 7th of May, 2003 if the trial does not commence or conclude within 30 days from the said date, petitioner would automatically, become entitled to the grant of bail subject to his furnishing bail bonds in the sum of Rs,five millions with one surety in the like amount to the satisfaction of the trial Court at Lahore."
11. ' From the above judgments it is now well-settled that non-conclusion of trial within the statutory period is a good ground for releasing of accused on bail. The Hon'ble Supreme Court in the reported case of Agha Jehanzeb has gone to the extent that in case the trial does not conclude within 3.0 days petitioner is automatically entitled to the grant of bail. The judgment cited by the learned DPG, NAB, is not directly applicable to this case. The other ground of Mrs. Ismat Mehdi was rule of consistency. She submits that at least 19 co-accused in the same reference were released on bail. The learned DPG without disputing the contention submits that none of the co-accused who were granted bail are directors of M/s Alliance Motors, as such , this rule will not apply. We have perused the reference. No doubt Salim Yousuf was not the Director of M/s. Alliance Motors but he is the Director of Alliance Fabrics and Alliance Silk Mills Limited one of the sister concern of M/s. Alliance Motors and the allegations are that he received Rs,20.00 million for the cloth business in the name of Alliance Fabrics and Rs,70.00 million for establishing a factory in the name of Alliance Silk Mills Limited from Muhammad Ibrahim Kassim one of the Directors of Alliance Motors. Be that as it may, for grant of bail it is sufficient that 19 other co-accused in the same reference were released on bail and keeping in view the rule of consistency the applicant is also entitled to grant of bail.
12. For the foregoing reasons, we are of the view that the accused Muhammad Younus is entitled for grant of bail. Accordingly, this petition is disposed of in the terms that the accused is admitted to bail in Reference No,28 of 2002 on his furnishing solvent surety in the sum of Rs,1.00 million (Rupees One Million) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. In addition to the above the accused will also deposit his passport with the trial Court.