1. ' These three petitions have been preferred by the accused arrayed, in Reference No,59 of 2001 pending adjudication before Administrative Judge Accountability Court No,1, Karachi, applied for pre-arrest bail.
2. Succinctly the facts leading to the case are that petitioners are retired Government servants when came to know about the pendency of the reference whereby 11 persons were involved for commission of corruption and corrupt practices during their course of employment in the Revenue Department, Kotri Barrage, Hyderabad. The allegations levied against the petitioners are that they misused their official position for allotment of 406.26 Acres of Government Land along with Mian Muhammad Iqbal (deceased) the then Revenue Officer of Kotri Barrage, Hyderabad who had allotted the land in violation of Notification dated 4th December, 1989. It is urged that 24 persons were allotted land in violation of law who extended benefit to co-accused Altaf Hussain Matti who was arrested resorted to file C.P.No,2520 of 2007 which was dismissed by Division Bench of this Court. The allegationS against the petitioners are contained in paras.1 and 5 of the Reference that they all in connivance and in corroboration with each other with the aid, assistance and support of co-accused Altaf Hussain Bhatti granted benefit to him, his nominees and members of his family.
3. Forged record was prepared to confer benefit to the presence not legible for allotment and same was fraudulently and dishonestly used as genuine thereby the petitioners have committed an offence of corruption and corrupt practices.
4. ' Learned counsel for the petitioners pressed into service the following contentions in support of the petitioners:--
(i) That the authorization and investigation against the petitioners and filing of reference against them is illegal and unconstitutional:
(ii) That according to the prosecution in case no loss was caused to the Government exchequer as the petitioners neither allotted land nor cancelled the same as they were not vested with such authority.
(iii) The allotment was made in open Katcheri by deceased Mian Muhammad Iqbal the then Revenue Officer who was in league to the petitioners therefore the petitioners were not in a position to ref, Ise compliance of those formalities comprising of mutation in the record and issuance of necessary documents as warranted under the law.
5. ' In order to reinforce his submission learned counsel for petitioners has invited our attention to the Investigation Report of Inspector Habib Khan of NAB which manifestly shows that on scrutiny of record Mr. Mian Iqbal Ahmed late had allotted the Government Land, the applications moved for allotment of land at the time of open Katcheri were neither endorsed by the field staff nor were recommended by Mukhtiarkar to ensure the codal formalities with regard to the physical presence and possession as envisaged in the Notification dated 4th December, 1989 Government of Sindh Land Utilisation Department Hyderabad. It is also levelled that prior to issuance of T.O. Form the applicants did not resort back to the competent authority before issuance to be allotted as per procedure. The petitioners are either retired exMukhtiarkar, Tapedar and Assistant Mukhtiarkar and the role attributed to them is misuse of authority after the allotment comprising of issuance of transfer order as well as to make entries in Form VII-B within the (Record of Rights) Register.
6. Referring to inordinate delay and commencement of proceedings and investigation it is contended that the investigation was authorised in the year 2005 which took long way until materialization by way of filing reference in the year 2007.
7. ' Mr. Ainuddin Khan learned A.D.P.-G. NAB appearing on behalf of N.A.B. Disclosed that C.P.No,2520 of 2007 tiled by co-accused Altaf Hussain Bhatti was dismissed by Division Bench of this Court; which regard to sections 497 and 498, Cr.P.C. Governing the ground and principles for grant of bail in non-bailable offence learned counsel contended that the embargo of power of Accountability Court or grant of bail in terms of NAB Ordinance supersedes the power of Court under the Code of Civil Procedure as reported in case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC
607. It is urged that the petitioners in connivance have extended the benefit to the principal accused therefore they are involved in the commission of the crime does not deserve any concession at this stage.
8. We have carefully examined the submissions made by the learned counsel for the parties. It is undisputed that for about two years' investigation remained lingered on until the reference was filed. The allegation attributed to the petitioners shall be determined at the trial, as deep analysis of the evidence that may be adduced by the parties is not admissible at the stage without going deeper into the merits of the prosecution's case it may suffice to, observe that prima facie petitioners do not appear to be guilty of misuse of official position or misappropriation of public funds of their own use or any order to cause mental loss to public funds or to obtain illegal gain for themselves or for any of their relatives. It is not the case of prosecution that the petitioners enjoyed any benefits or monetary gain as suggested by the prosecution. The object of the Ordinance as contained in its preamble provided for expeditious trial of scheduled offences within shortest possible time. It is well-settled that bail cannot be withheld as punishment on accusation of non- bailable offences against the petitioners.
9. ' We think that since the petitioners have voluntarily appeared and have also surrendered before this Court, it is a. Fit case for exercise of constitutional jurisdiction and discretion in the matter of bail.
10. ' For the foregoing reasons, the petitions were allowed by a short order dated 12th March, 2008 whereby the petitioners are admitted on pre-arrest bail subject to furnishing sureties in the sum of Rs,500,000 (Rupees Five hundred thousand only) each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. These are the reasons for the same.