Abdul Hameed Dogar, HCJ.--Through this order, we intend to dispose of Civil Petitions No, 438 and 506 of 2007 filed against common judgment dated 29.3.2007 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Writ Petition No, 2841 of 2005 filed by petitioner Javed Iqbal Qureshi and Writ Petition No, 2946 of 2005 filed by petitioner Muhammad Nadeem Anwar were dismissed and concession of bail was refused to them.
2. Briefly, stated facts giving rise to the filing of these petitions are that this Court on 09.7.2002 in the case of Facto Belarus Tractors Limited vs. Government of Pakistan etc. (Cr.O.P. No, 15 of 2002) directed Registrar of this Court to invest a sum of Rs, 493,467,838/- in any profit bearing scheme. In compliance of which, co-accused Muhammad Amin Farooqi, the then Registrar invested the said amount in Islamic Investment Bank Limited (IIBL), a non-banking finance company which offered maximum profit. On 11.5.2005, the abovementioned case was dismissed and office was directed to refund the amount in question along with mark up to the concerned Collector of Customs. On approaching for encashment of the' certificates, the Chief Operating Officer requested for 60 days time which was not allowed and inquiry was ordered by the then Chief Justice of Pakistan. The inquiry was conducted by the then Senior Puisne Judge of this Court and report was submitted. In pursuance of which the then Hon'ble Chief Justice of Pakistan found petitioners along with other co-accused guilty of misappropriation/ embezzlement of Government funds amounting to Rs, 596,631,405/- (principal + markup) and directed NAB to register a case against accused persons.
Petitioners were arrested on 02.6.2005 and are still behind the bar. The precise allegation against petitioners as described paragraph 11 of the Reference reads as under:--
11. That the evidence collected during the investigation establishes that the Accused Nos, 1 to 4 in connivance and collusion with each other fraudulently or dishonestly misappropriated/embezzled an amount of Rs, 596,631,405/-(Rupees five hundred ninety six million six hundred thirty one thousand for hundred and five only inclusive of markup) entrusted to IIBL. Moreover, the Accused No, 1 misused his authority to render benefit to the functionaries of IIBL and willfully failed to exercise his authority to prevent the grant of benefit which he could have prevented by exercising his authority. Further more, the accused by corrupt, dishonest or illegal means obtained for themselves pecuniary advantage and accused aided, abetted, assisted, and acted in conspiracy with each other for the commission of offence."
3. We have heard Mr. Waseem Sajjad, learned Sr. ASC for petitioner in CP No, 438 of 2007, Sardar Muhammad Ishaque Khan, learned Sr.ASC for petitioner in CP No, 506 of 2007 and Malik Muhammad Qayyum, learned Attorney General for Pakistan and Mr. Muhammad Asghar Rana, learned Addl.PG NAB on behalf of respondents at length and have gone through the record and proceedings of the case in minute particulars.
4. It is vehemently contended by learned counsel for the petitioners that petitioners are behind the bar for a considerable period and there is no likelihood for completion of trial in near future though this Court has directed the learned trial Court to proceed with he trial expeditiously and conclude the proceedings as early as possible preferably within a period of ninety days. According to them, out of 58 witnesses only 9 witnesses have been examined and the delay in concluding the trial is attributed to the prosecution. They further contended that in view of this aspect of the matter, bail of petitioners cannot be withheld in any event and there are grounds for further inquiry into the guilt of the petitioners within the meanings of Section 497(2) Cr.P.C. According to them, the transaction between the bank and this Court was transparent and in accordance with prevailing business practices. They further contended that petitioners have acted in good faith which fact is reflected in the balance sheets of the bank. They further contended that no amount has been recovered from the petitioners, as such no useful purpose could be served by retaining them in custody. According to them, if they are released from custody then they would be in a better position to settle the dispute and cooperate for the recovery of amount. They further contended that co-accused Muhammad Amin Farooqi and Zubair Ullah. Khan Bangesh have already been released on bail by this Court and Lahore High Court respectively although the allegations against them were of similar nature, therefore, on the rule of consistency the petitioners are also entitled to the grant of bail.
5.On the other hand, learned Attorney General for Pakistan appearing on behalf of NAB controverted above contentions and contended that in the facts and circumstances of the case petitioners are not entitled to grant of bail as they have misappropriated/embezzled huge amount of Rs, 2.817 billions. He further contended that there is sufficient material on record to connect the petitioners with the commission of offence.
6. This Court vide order dated 22.9.2006 had directed learned trial Court to proceed with the trial expeditiously and conclude the proceedings as early as possible, preferably within a period of ninety days. But according to the learned counsel for the petitioners only 9 witnesses out of 58 have been examined. In this view of the matter, we without touching the merits of the case are of the view that the allegations leveled against petitioners would only be determined at the conclusion of trial, which is not yet concluded. The NAB Ordinance was promulgated in order to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. The object of NAB Ordinance as is evident in its preamble is to provide expeditious trial of the scheduled offences within the shortest possible time.
7. It was held in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) that superior Courts had the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction, such as Section 497 of the Cr.P.C. In the case of Muhammad Saeed Mehdi v. State (2002 SCM R 282) this Court had held that even under un-amended provisions of Section 9(b) of the NAB Ordinance, High Court had jurisdiction under Article 199 of the Constitution to grant bail in offences under NAB Ordinance in appropriate cases as bar of jurisdiction being in the nature of legislative enactment cannot take away its jurisdiction under Article 199 of the Constitution.
8. The object of criminal law is to ensure availability of the accused to face trial and not to punish him for offence allegedly pending final determination by a competent Court of law. It is well settled principle of law that grant of bail cannot be withheld as punishment on accusation of non-bailable offence against an accused. An accused is entitled to expeditious and inexpensive access to justice, which includes a right to fair and speedy trial in a transparent manner without any unreasonable delay. This intention has been re-assured in Section 16 of the NAB Ordinance laying down criteria for day to day trial and its conclusion within 30 days. But in the instant case such object does not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to the petitioners. The truth or otherwise, of charges leveled against petitioners would only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. It was held by this Court in the case of Aga Jehanzeb u. NAB & others (2005 SCM R 1666) that if trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail.
9. In view of above discussion, we are of the view that petitioners are entitled to the grant of bail pending conclusion of trial. Accordingly, both the petitions are converted into appeal and are allowed. Appellants, namely, Muhammad Nadeem Anwar S/o Muhammad Habib Anwar and Javed Iqbal Qureshi son of Abdul Karim Qureshi are released on bail subject to furnishing surety in the sum of Rs, 1,00,00,000/- (Rupees one crore) each with two sureties each in the like amount to the satisfaction of the trial Court.
10.These are the reasons of our short order of even date.