C.M. Nos.611. 612 and 613 of 2003 ' The above titled three writ petitions were disposed of by us through a single order on 5-3-2008 taking into consideration the statement of Mr. Ali Tipu Khan, learned Special Prosecutor for NAB that since the petitioner had not been arrested by NAB Punjab, therefore, there was no jurisdiction with this Court to allow the said writ petition and to grant bail to the petitioner. The said writ petitions were thus dismissed being pre-mature.
2. After the dismissal of said writ petitions by this Court as stated above, the petitioner then moved Hon'ble Karachi High Court through writ petition for his release from Jail. However, the said writ petition was dismissed as not maintainable by the learned Division Bench of Karachi High Court through a short order on 26-3-2008 taking into consideration the comments filed by the Superintendent District Jail Malir, Karachi.
3. The petitioner then filed three miscellaneous petitions in this Court with reference to previously disposed of writ petitions by this Court on 5-3-2008 with prayer under section 561-A, Cr.P.C. To modify the order dated 5-3-2008 passed by this Court.
4. The learned counsel for the petitioner in all the three miscellaneous applications has submitted that three Accountability References Nos.21 of 2003, 23 of 2003 and 24 of 2003 are pending adjudication in Accountability Court-IV, Lahore. However, submitted that the petitioner has never been produced before the said Court, neither has been formally arrested in the above said references/cases and as he is no more required by District Jail Malir, Karachi, therefore, he is entitled to release from District Jail Malir, Karachi. A He further submitted that the Superintendent, District Jail Malir, has refused to release the petitioner on the ground that unless and until there was a clear cut order in favour of the petitioner, he cannot be released as he is required in the above said three accountability references pending in the Accountability Court-IV, Lahore. He, therefore, submitted that these miscellaneous petitions may be allowed.
5. Mr. Ali Tipu Khan, the learned Special Prosecutor NAB has categorically stated before us that the petitioner has not been arrested formally by NAB Punjab in the above said references pending in the Accountability Courts, Lahore and submitted that once a warrant of arrest of the petitioner was issued, but it could not be executed. The learned Special Prosecutor submitted that he has obtained instructions from the relevant authorities of NAB and he is very clear that the petitioner has not been arrested as yet through any warrant by NAB Punjab.
6. After hearing the learned counsel for the petitioner and learned Special Prosecutor for NAB, we are of the view that strange situation is being faced by the petitioner, who is though no more required by the Superintendent Jail, Malir Karachi in any case pending against him in any of the Courts at Karachi including Accountability Courts, Karachi yet he is not being released by the said jail authority only on the ground that since three accountability references are pending against the petitioner in the Accountability Court at Lahore, therefore, unless and until there was a clear cut order of release of the petitioner by the competent authority, he is unable to release him. During perusal of record and certified/ attested copies attached with these miscellaneous petitions by the petitioner, we have noticed that there are three production warrants of the petitioner issued by the Registrar, Accountability Courts at Lahore in the name of Superintendent Central Jail Karachi for the production of petitioner in References Nos.21, 23 and 24 B of 2003 pending against him in Accountability Court-IV, Lahore. It is important to mention that these letters/ production warrants were issued for the production of accused in Reference No,21 of 2003 for 25-7-2007, References Nos.23 and 24 of 2003 for 31-7-2007 and Reference No,24 of 2003 for 6-7-2007. Perusal of above said letters pertaining to production warrants of the petitioner-accused show prima facie that the petitioner was required to be produced before the concerned Accountability Court, however, in fact the petitioner was never produced before the Accountability Court, Lahore as has been submitted by the learned Special Prosecutor for NAB that since the petitioner was facing trial before the Accountability Courts at Karachi thus could not be produced before the Accountability Courts at Lahore and production warrants remained un-executed. We can thus evaluate the position of the Superintendent District Jail, Malir Karachi as to why he is not releasing the petitioner from jail. There is another attested copy of a Letter No,UTB/1259/2008 dated 22-3-2008 available on this file as Annexure-E issued by the Superintendent District Jail, Malir Karachi and addressed to Special Court (Offences in Bank), Lahore wherein the Superintendent Jail has requested the Special Court (Offences in Bank), Lahore for information to the Jail Superintendent, whether case F.I.R. No,14 of 1997 of P.S. FIA C.B.C. Lahore, F.I.R. No,32 of 1997 of Police Station FIA C.B.C. Lahore and F.I.R. No,52 of 1997 of Police Station FIA C.B.C., Lahore, were still pending in the Special Court (Offences in Bank) and whether the said accused was to be detained any further in custody in the said cases or whether the said cases had been disposed of and the accused was to be released. The Superintendent Jail also requested the said Special Court to issue production order of the accused if said cases were still pending before the said Court. We can, therefore, understand that Superintendent District Jail Malir, Karachi had issued said letter on 22-3-2008 to the Special Court (Offences in Bank), Lahore only because we had earlier disposed of above said writ petitions being pre-mature vide order dated 5-3-2008, whereafter the petitioner ventured his luck through writ petition in filed before the Hon'ble High Court Karachi which was dismissed on 26-3-2008 through short order. The filling of writ petitions by the petitioner in this Court and in the Karachi High. Court got to show that the petitioner also requested the Superintendent District Jail Malir, Karachi to release him from the jail since he is no more required in any other case. The letter dated 22-3-2008 sent by the Superintendent District Jail Malir, Karachi to the Special Court (Offences in Bank), Lahore also goes to show that the said Superintendent is also not convinced apparently with detention of the petitione is said jail, therefore, he requested through the said letter to the learned Special Judge (Offences in Bank), Lahore to intimate him about the fate of three criminal cases referred to above in said letter and in case said cases were still pending then to issue production order of said accused before the said Court at Lahore. It is, however, not understandable as to why said Superintendent Jail instead of making said request to the learned Accountability Courts, Lahore wherein said criminal cases/accountability references are pending, chose to address the letter to Special Judge (Offences in Bank), Lahore instead of Accountability Courts. In any event, one thing is clear that Superintendent Jail in the heart of his heart as convinced that he cannot detain the petitioner any further. We may also mention that were production order/letter issued by the Registrar, Accountability Courts, Lahore discussed above would not confer the jurisdiction upon the Superintendent jail to withhold the release of the petitioner from jail as said production orders are simply addressed to said Superintendent Jail because the petitioner happened to be lodged in said jail on account of trial of some cases in Accountability Courts at Karachi as under trial prisoner. The said production order, therefore, cannot be termed to be warrant of arrest of the petitioner in cases pending in the Accountability Courts at Lahore nor can be equated with the same. It is in this situation that the learned Special Prosecutor NAB has categorically stated before us that the petitioner has not yet been arrested in these references pending in the Accountability Courts, Lahore by NAB Punjab.
7. In view of above discussion, we are of the considered opinion that on the basis of said categorical statement of the learned Special Prosecutor NAB there is no justification with the Superintendent District Jail Malir, Karachi to withhold the release of the petitioner from jail unless and until the petitioner is formally arrested in execution of warrant of arrest issued by NAB Authorities Punjab. Therefore, all the three applications are accepted and order dated 5-3-2008 passed by this Court earlier stands modified in above said terms.