1. ' AZIZULLAH M. MEMON, J.---Petitioner Khadim Hussain has been sent up to the learned Accountability Court, Karachi, for allegedly committing offences under sections 9(a)(i)(ii) & (iv), punishable under section 10(a) of National Accountability Ordinance, 1999 and schedule thereto; this petition is filed for bail.
2. ' Heard Mr. Sarfaraz Ahmed for petitioner and Mr. Shafaat Nabi Khan Sherwani, Deputy Prosecutor General for Respondents.
3. ' It is alleged against the petitioner that he was posted as Deputy Director (I&I) in National Accountability Bureau, (Sindh) and was entrusted with a probe regarding corruption and corrupt practices made against one Muhammad Khan Sammo (complainant); written complaint was received against the petitioner to the effect that, while entrusted with duties of investigation/inquiry into the allegations against Muhammad Khan Sammo oMiaving accumulated wealth illegally beyond his known/legal sources of income, the petitioner demanded illegal gratification amount of Rs,7,00,000 (seven lacs) from Muhammad Khan Sammo as a motive or reward for closing the said inquiry against him; an investigation was authorized into the said complaint, which revealed that before making the said complaint, the said Muhammad Khan Sammo had recorded telephonic conversation which had taken place between him on one hand, and the petitioner on the other, and such audio cassette was produced by him before the Investigation Officer, which was duly secured under such memo. Of recovery and its text was transcribed into writing, which fully corroborated the above said version of the said complainant Muhammad Khan Sammo; it was further found out that petitioner had agreed to accept from the complainant part payment of bribe money on 3rd or 4th November, 2004 at a time and place to be given by the petitioner; as such, a raiding party was constituted under the supervision of Mr. Abdul Hafeez Siddiqui Deputy Director, working in NAB, Sindh to arrest the petitioner; the tainted money was also arranged accordingly.
4. ' On completion of required formalities, the currency notes of Rs,10,000 being part payment towards bribe amount demanded by petitioner (the tainted money) were kept by the complainant with himself; on 4th November, 2004, as per previous arrangement, the said complainant contracted the petitioner on his office telephone and was asked by the petitioner to meet him after office hours at a petrol pump near his office; petitioner reached at the agreed place at about 2-30 p.m., sat down in the motor car of the complainant and asked him to drive towards Passport Office Saddar; the raiding party followed the said motor car and on demand of bribe money/tainted money by the petitioner from complainant, it was handed over to him who accepted the same and kept it in his shopping bag,; as per arrangement, signal was made by the complainant to the raiding party, when he stopped the car near Passport Office Saddar, the Investigating Officer, under supervision of Mr. Abdul Hafeez Siddiqui, accompanied by other witnesses reached the spot and arrested the petitioners and also recovered the tainted money' of Rs,10,000 from his possession, found in the above said shopping bag; serial numbers and denominations of currency notes tallied with those already noted down in the earlier memo. And then petitioner was arrested and such Mashirnama of such event was prepared at the spot in presence of witnesses all such events were also duly recorded through a video cassettee by P.W. Aqeel Ahmad who produced the same before the Investigation Officer which was also secured under such a memo.
5. ' On completion of the investigation into the said complaint lodged by Muhammad Khan Sammo, reference was submitted against the petitioner before learned Accountability Court, Karachi by the Chairman National Accountability Bureau.
6. ' Learned counsel for petitioner argued before us that offence alleged against the petitioner does not fall within the provision of the National Accountability Bureau Ordinance and that, at the most, same would fall within the meaning of Pakistan Criminal Law Amendment Act, 1958 triable by the Court of special Judge constituted under the Prevention of Corruption Act, 1947; that the petitioner has a long-standing service career to his credit, having served on different posts satisfactorily and proved his worth by achieving objectives assigned to him, from time to time, and rendered meritorious services for a period of about 38 years; the quality of efficiency, fairness and devotion towards duty at his hands was all along appreciated by his superiors under whom he worked from time to time, in the different government departments; further, above said complainant Muhammad Khan Sammo was alleged to have accumulated illegal/illicit wealth beyond his known/legal sources of income and, in order to stop the inquiry/investigation against himself he made a false complaint against the petitioner; further that the said complainant wanted to pay an amount of Rs,20,00,000 to the petitioner, in advance as bribe money, but then the petitioner "returned to the same to him and therefore it would be most unbelievable to say that the petitioner would demand an amount of Rs,10,000 as bribe money; further the procedure for conducting a raid to trap a government official (who demands bribe money) would be that the services of a Magistrate are necessarily be procured/ secured, who has to witness the tainted money from the complainant to the petitioner; and all such all events are required to be witnessed by a Magistrate of the competent jurisdiction and that such a settled procedure having been ignored/ neglected, no legal force can be attached to the proceedings of trap held against the petitioner.
7. ' Learned counsel further argued that "Departmental Strings" made the concoction of this case against the petitioner, which is absolutely false and for such purpose, services of the said complainant Muhammad Khan Sammo were allegedly manoeuvred.
8. ' We have carefully assessed the arguments of learned counsel.
9. ' Suffice it to say that the relevant provisions of National Accountability Bureau Ordinance, 1999 were challenged before Honourable Supreme Court and, in accordance with directions recorded in the judgment reported in PLD 2001 SC 607 (Khan Asfandyar Wali v. Federal of Pakistan), the provisions thereof stand validated; the relevant observations recorded at page 877, paras 178 and 179 read as under:-- "178. This is not the first time that the Federal Government has promulgated laws providing for creation of Offences, the procedure and the punishments therefore, and the establishment of Courts in the Provinces. Enforcement of the Anti-Terrorism Act, 1997 is a classic example of the above power of the Federal Government in the recent past. Articles 175, 202 and 203 of the Constitution provide a framework on judiciary, i.e, there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts, as may be established by law. The words, 'such other Courts as may be established by law' are relatable to the subordinate Courts referred to in Article 203 of the Constitution. Article 225 of the Constitution also empowers the Federal Government to establish Election Tribunals, which operate within the Provinces. However, the functioning of any Court or Tribunal, beyond the control and supervision of the High Court concerned in terms of Article 203 of the Constitution, does not fulfil the mandatory requirement of the Constitution, in that, under Article 203 read with Article 175 of the Constitution, the supervision and control of the subordinate judiciary exclusively vests in the High Courts; the above principles were also recognized by a 5-member Bench of this Court in the case of Mehram Ali (supra) wherein it was inter alia held that the provisions of the Anti-Terrorism Act, 1997 were valid except those which militated against the concept of independence of judiciary or which were repugnant to the provisions of Articles 175 and 203 etc. Accordingly, directions were issued for making appropriate amendments in the Act. Some other statutes were also promulgated by the Federal Legislature including the following:--
(i) The Foreign Exchange Regulation Act, 1947;
(ii) Pakistan Criminal Law (Amendment) Act, 1958;
(iii) Prevention of Anti-National Activities Act, 1974;
(iv) Suppression of Terrorist Activities (Special Courts) Act, 1975;
(v) Drugs Act, 1976;
(vi) The Emigration Ordinance, 1979;
(vii) Offences in respect of Banks (Special Courts) Ordinance, 1984; (viii)The Terrorist Affected Areas (Special Courts) Act, 1992
(ix) The Control of Narcotic Substances Act, 1997;
(x) Anti-Terrorism Act, 1997.
179. It would thus be seen that the Constitution does confer power on the Federal Legislature to establish Criminal Courts or Tribunals and not necessarily those Criminal Courts, which fall within the purview of section 6, Cr.P.C. It is also beneficial to refer to the following observations of this Court in the case reported as Abdul Hafeez v. The State (PLD 1981 SC 352)."
10. ' So also, it was further observed at paras.211 and 212 as under:- "211. In view of persistence of corruption and genuine emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to banks, financial institutions. Government and other agencies and all measures having failed to recover the same through ordinary Courts of law, it became necessary to promulgate this extraordinary legislation in the Extraordinary circumstances prevalent in the country. Had the Government agencies and the Revenue authorities performed their duties and legal obligations justly, fairly and in accordance with law and had there been proper investigation into alleged offences committed by important politicians, bureaucrats and the persons who were recipient of money from any unlawful sources given for unlawful considerations, there would have been no need to promulgate the impugned Ordinance. But when the matter discloses a clear nexus between crime/corruption and powerful person holding public offices which poses a serious threat to the economy as well as the very existence of the country, then to prevent erosion of the rule of law and to take steps for restoration of democracy in the country within the time frame laid down by this Court, it will have to be examined whether the mechanism involved for recovery of amounts from the wilful defaulters for reviving the economy is in confirmity with the declared objectives of the Chief Executive. Applying the above principles, we are led to irresistible conclusion, after hearing her learned counsel for the petitioners at length, that there was a need for creation of an offence of 'wilful default' and mechanism for recovery of the same as is purported to have been done under section 5(r) of the impugned Ordinance.
212. Also refer the Prevention of Corruption Act, 1947 (Act II of 1947) which was a political dispensation under the colonial rule, wherein a post war situation was taken note of, in that, a lot of things were happening in the society which were breeding corruption, necessitating the enactment of the above Act. The Act became a permanent law and is on the statute book even today."
11. ' It is a settled principle of law that while hearing the petition for a prayer of grant of bail, only tentative assessm ent of evidence collected by the prosecution is to be made, and that detailed scrutiny thereof cannot be had.
12. ' It is alleged against the petitioner that while holding the inquiry/investigation into the allegations made against complainant Muhammad Khan Sammo (for having amassed illegal wealth without having legal/known sources of income for such accumulation) petitioner demanded bribe money from him to help him come out exonerated from the allegations so made against him, and that the said complainant made such written complaint before National Accountability Bureau, Sindh Region, who directed for investigation into said allegations made against the petitioner; inconsequence thereof the tainted money was passed on the petitioner by the complainant, which was recovered from his possession; it is further alleged that such proceedings were duly recorded through video camera in a video cassette.
13. ' Reference has already been submitted against the petitioner before learned National Accountability Court, Karachi and at this stage no cogent material is found available to indicate that the petitioner could falsely be implicated in the case.
14. ' We do not find any reason to direct to petitioner to be admitted to bail; this constitutional Petition does not carry any merit therein and was dismissed by us by a short order dated 9-9-2005; above are the reasons for the short order.