Syed Yahya Zahid Gillani, J.--In substance and essence, this Constitutional petition under Article- 199 of Islamic Republic of Pakistan, 1973, is for release of petitioner Farhad Sajid, Forest Range Officer, on bail, who has been booked for trial under Sections 9-10 of National Accountability Ordinance, 1999 (hereinafter referred as NAO) in Reference No, 6 of 2007, pending in Accountability Court, Peshawar, with the title "State vs. Farhad Sajjad & five others".
2. The reference is based on the facts that there was alleged ruthless illegal cutting in the Government Reserve Green Forest, within the controlling jurisdiction of accused/petitioner. On reports, D.G NAB (F) authorized Mr. Muhammad Tayeeb Anwar I.O. for inquiry/investigation. His final investigation report highlighted massive illegal cutting of trees, lofty misappropriation and soaring irregularities, due to active connivance in between the Controlling Government Officers (including the petitioner/accused and five others) and four local timber smugglers. Rs, 6.328 millions loss to public exchequer was detected. Consequently, the accused/petitioner and five other forest officials were arrested. The three arraigned civilians entered in "plea bargain" and they made good the public exchequer losses attributed to them. One of them is still absconder.
3. Mr. Riaz Ahmed Khan, learned counsel for the accused/petitioner Farhad Sajid pleaded that the investigation officer did not conduct independent inquiry. He simply relied on the departmental inquiry report, but that inquiry too was not done by the concerned inquiry officer himself and he allegedly got done the physical checking of the effected forest through his subordinates and did not personally confirm that their report was right or wrong. He contended that, as such, the LO has not personally fixed the liability against the accused/petitioner and submitted final investigation report on the basis of presumptions. He concluded that it is an inherent flaw in the prosecution case rendering the accused/petitioner entitled to bail on the ground of further enquiry into his guilt.
4. Touching the legal aspect, he referred to the cases reported in PLD 2003 Supreme Court page- 668(b) and 2005 SCMR page-1291 (a) and argued that this Court has ample power to release the accused/petitioner on bail on the ground of further inquiry.
5. Mian Fasihul Mulk, learned DPG for NAB (F), raised no objection on the powers of this Court in granting bail to accused/petitioner but took the indurate stance that scams and white colour crimes in Governmental sectors are always detected on the basis of initial departmental enquiries and it would be a wrong presumption that every departmental report would be baseless. Rather, mostly, these reports operate as search engine and dig out roots of hidden crimes. The I.O. of NAB
(F) carried out his own necessary inquiry/investigation during which the record was taken in possession and the statements of PWs were recorded u/S.-161 Cr.PC to accumulate the documentary data for his satisfaction and finalize list of prosecution witnesses. When he got fully satisfied about the commission -of crime, he submitted final investigation report to which DG NAB agreed and consequently the reference was instituted. It contains a prima facie case and the collected evidence provides reasonable grounds to believe that the accused/petitioner has committed the offence. Hence, he is not entitled to release on bail.
6. We have carefully gone through the record to ascertain the facts, and also contemplated over relevant law.
7. We are of the view that the objections raised by the learned counsel for the accused/petitioner against the mode and manner of inquiry/investigation would since involve us to discuss deep merits of the case, we would refrain to do it because it is not permissible under recognized principles governing grant of bail in criminal cases. However, we would examine the case of accused/petitioner for his entitlement to bail on the other grounds, but before that a precised survey of the relevant law and judicial precedents would make us convenient to draw apt conclusions, on the available record.
8. It is pertinent to note here that Section 9(b) of NAO declares all offences falling there under, to be non-bailable offences, not withstanding anything contained in Sections 426, 491, 497, 498 and 561- A or any other provision of the Code of Criminal Procedure, or any other law for the time being enforce. It has further been laid down in this provision that no Court shall have the jurisdiction to grant bail to any person accused of any offence under the NAO.
9. This provision, as a first impression, appeared to be very harsh, but its justification was also visible in Section-16(a) of the NAB Ordinance, which contains a direction that the cases in the Accountability Court shall be heard day to day and disposed of within 30 days. If it could be practicable then there would have been no need and desire for bail in these cases, because the accused could have preferred to face expeditious trial, instead of consuming time in bail petitions.
However, the ground reality proved altogether different.
10.In famous case "Khan Asfandyar Wali vs. Federation of Pakistan" reported in PLD 2001 Supreme Court page-607(r) Hon'ble Apex Court declared existence of powers of superior Courts to grant bail to the accused arrested under the NAO, in exercise of the constitutional jurisdiction under Article- 199 of the Constitution.
11.Petitions for bail rapidly increased because the under trial accused could not get 'cases decided in Accountability Courts within the stipulated period of 30 days, on the basis of day to day hearing, for multiple reasons, the major being long list of PWs and heaps of record for proof. Technical nature of the offences and their careful analysis also yielded reasonable grounds for delay in accomplishment of trials.
12.Resultantly, the law of bail in NAB cases flourished and the judicial pronouncement of superior Courts further enlarged the scope of bail in NAB cases. The case titled "Abdul Aziz Khan Niazi vs. The State" reported in PLD 2003 SC page-668, and "National Accountability Bureau vs. Khalid Masood and others" reported in 2005 SCMR at page-1291 propounded the rule that not only the High Court has jurisdiction under Article-199 of the Constitution to grant bail to any person accused of an offence under the NAO, notwithstanding the bar contained in Section 9 (b) of the said Ordinance, but all those grounds which are relevant for grant of bail under the Ordinary Law, can equally be considered for grant of bail in the constitutional jurisdiction. Under this enlarged scope, bail was granted by the Karachi High. Court on the ground of "further inquiry" in the case 'Akhtar Hussain Ansari vs. The State" reported in 2003 P.Cr.LJ at page-473.
13.According to the judgment reported in 2000 MLD 1911 (b) severity of punishment and according to the case reported in 2003-MLD1637 (c) the sentence likely to be awarded are the factors which can be considered in allowing or refusing bail. In the cases reported in PLD-1972-SC-81 and PLD 1968 SC 349, it has been held that bail cannot be refused as punishment.
14.In this case we have found that the whole Government loss calculated in the reference is Rs, 7.114 millions and liability has been fixed against as many as nine persons, out of which three have made good the losses attributed to them through plea bargain. Although the petitioner has been individually attributed the loss calculated as Rs, 6.728 millions, but this calculation appears overlapping, when liability of each accused is taken in account, in juxtaposition. In this state of affair, if the charge is proved against the accused/petitioner, his ultimate sentence shall have to commensurate proportionately with the quantum of actual loss yet to be established against the accused/petitioner. For this purpose the trial Court shall have to meticulously calculate and weigh his liability on judicious scale. All this discussion means that at least on the point of actual losses attributed to accused/petitioner, his case needs further inquiry. Keeping in view the total loss and large number of accused, imposition of maximum sentence of imprisonment is not visible. This is a tentative assessm ent only for the purpose of bail and shall never affect the merits and mind of the.
Court at the time of final pronouncement.
15.In these facts and circumstances, we deem it appropriate to enlarge the accused/petitioner on bail, in the peculiar facts and circumstances of this case mainly on the ground of expected prolonged trial period, vis-a-vis the expectation of short period of sentence of imprisonment, besides the connected factors, that due to limited liability fixed against the accused/petitioner, there appears to be no likelihood of his going into hiding and that the bail can not be withheld as punishment. In support of this context, the cases reported in PLD-1968SC-349, PLD-1972-SC-81, 2000-MLD-1911 (b), and 2003-MLD-1637 (c) can be referred.
16.Consequently, we accept this writ petition and allow the accused/petitioner to be released on bail, if he is able to furnish bail bond in the sum of Rs, 10,00,000/- (ten lacs) with two sureties each in the like amount to the satisfaction of Accountability Court, Peshawar. The sureties must be local and men of means.