' MANZOOR AHMAD MALIK, J.--- This judgment shall dispose of Writ Petition No,3546 of 2007 (Azhar Zia Mian v. NAB and others), whereby petitioner has prayed that Reference No,8/2007 submitted before the learned Accountability Court No,V Punjab, Lahore, by respondent No,1, be declared as without lawful authority having no legal effect and that the petitioner be granted bail in accordance with law. Through Writ Petition No,4364 of 2008 (Azhar Zia Mian v. The State and others) bail has been sought on behalf of Azhar Zia Mian (petitioner) in the said reference. Both these petitions have been filed by the same person (Azhar Zia Mian) and in both the petitions it has been prayed that the petitioner be allowed bail after arrest. Though in Writ Petition No,3546 of 2007 there is a prayer that Reference No,8 of 2007, filed before the learned Accountability Court, be declared without lawful authority and of no legal effect.
2. Brief facts of the case, as mentioned in Reference No,8 of 2007 filed against the petitioner (Azhar Zia Mian) and his real brother Manzar Zia Mian, which is now pending before the learned Accountability Court No,V, Lahore, are that the petitioner and his said co-accused established office with the name and style of Messrs Indus Valley Rice Mills in AlFalah Building and used it to carry out the illegal banking. In all, 385 persons delivered total amount of Rs,267,844,000 (Rupees twenty-six crore seventy-eight lac and forty-four thousand only) till April, 2006 and they stopped business when the State Bank of Pakistan intervened. It is further mentioned in the reference that the petitioner/ accused induced and cheated the public at large and misappropriated the huge amount.
3. Mr. A.K. Dogar, Advocate contends that the reference in question has been filed without any jurisdiction; that the petitioner was engaged in .a legal business, therefore, he has committed no offence; that the investors invested money in the petitioner's business with their own consent to get profits qua which agreements were signed between the parties; that it was only on account of notices of the State Bank that the customers forced the petitioner for immediate return of the amounts deposited'by them which was not practically possible which created this situation; that the offence alleged against the petitioner does not fall within the Schedule of the National Accountability Bureau Ordinance, 1999; that the case is of civil in nature which has been converted into the criminal case; that by licensing system, the right of freedom of trade cannot be taken away as has been done in petitioner's case; that the petitioner was arrested on 9-12-2006 but was not allowed by the NAB Authorities to consult his counsel; that the petitioner has no other alternate and efficacious remedy to get his grievance redressed, therefore, this Constitutional petition be accepted and the impugned, reference be declared as without lawful authority having no legal effect.
4. As far as prayer for bail after arrest is concerned, Mr. A.K. Dogar, Advocate contends that the petitioner was arrested on 9-12-2006 and since then he is behind the bars; that there is no chance of conclusion of the trial in the reference in the near future because there are 375 prosecution witnesses and so far only 38 have been examined; that the concession of bail to an accused cannot be withheld as a punishment, that the delay in conclusion of trial is not attributed to the petitioner's that in case of acquittal from the reference in question, there would be no retrieval of the incarceration suffered by the petitioner while in case of conviction he can be put behind the bars; that section 16 of the National Accountability Bureau Ordinance, 1999 stipulates that "the case shall be heard from day to day and shall be disposed of within 30 days' but the trial has not been concluded; that the petitioner is in possession of sufficient assets, can discharge his liabilities qua repayments of the amounts received by him from the public if he is allowed bail and that in the afore-referred circumstances, the petitioner is entitled to bail till the final decision of the reference in question by the learned trial Court. In support of the above submission, learned counsel has placed reliance on Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040, Ch. Zulfiqar Ali v.
The State PLD 2002 SC 546, Khan Haroon Resikh v. The State and 2 others PLD 2003 Lah. 517, Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442, Sardar Muhammad Naseem v. Judge, Accountability Court, Lahore PLD 2006 Lah. 162 and Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668.
5. On the other hand, learned Special Prosecutor NAB contends that the reference has been filed in accordance with law; that the same is pending trial with the learned Court of competent jurisdiction constituted under the National Accountability Ordinance, 1999; that the act of cheating public at large is an offence under section 9(a) of the National Accountability Bureau Ordinance, 1999, therefore, the NAB has jurisdiction in the matter, that the precedent case-law cited by the learned counsel for the petitioner is in-applicable because each case has to be decided on its own facts and circumstances and that this Constitutional petition is liable to be dismissed.
6. Regarding prayer made by the petitioner for bail after arrest, the learned Special Prosecutor NAB submits that petitioner's earlier two bail petitions i.e. Civil Miscellaneous No,2 of 2007 and Civil Miscellaneous No,1 of 2008 (in Writ Petition No,3546 of 2007) have already been dismissed through a consolidated order by a learned Division Bench of this Court on 2-7-2008 whereby bail has been refused to the petitioner. Further submits that as far as delay in conclusion of the trial is concerned, a detailed report dated 29-10-2009 has been submitted by the learned trial Judge wherein it has been mentioned that the case was received by the learned Judge Accountability Court No,V, Lahore on 13-3-2007 and the accused were summoned for distribution of copies under section 265-C Cr.P.C. And was adjourned for framing of charge, but in the meanwhile, accused filed an application under section 265-K Cr.P.C. Which took ample time and ultimately charge was framed on 13-8-2007; that in this case evidence of 38 prosecution witnesses has been recorded while 334 P.Ws. Are to be examined; that the delay in conclusion of the trial is mainly attributed to the petitioner; that there are 385 affectees in this case; that in all 680 claims were submitted before the NAB Authorities who have fully implicated the petitioners with the alleged commission of the offence while making statements under section 161, Cr.P,C.; that on the last date of hearing eight P.Ws. Were present before the learned trial Court but on account of accused, those were not examined. Learned counsel for NAB has placed reliance on Faisal Hussain Butt v. The State and another 2009 SCMR 1330 to contend that merely on the basis of delay in conclusion of trial, bail cannot be allowed to an accused. Adds that the trial is likely to be concluded shortly.
7. We have heard learned counsel for the parties, have gone through the reference filed against the petitioner and the precedent case law relied upon by the learned counsel for.The respective parties.
8. Firstly, we would like to take up the question of maintainability of Reference No, 8/2007, submitted against the petitioner and his co-accused, which is pending trial before the learned Accountability Court No,V Punjab Lahore. The precise allegations contained in said reference are that the accused/petitioner established an office with the name and style of Messrs Indus Valley Rice Mills in Al-Falah Building and used the said office to carry out the business of illegal banking. In response to the said offer, 385 innocent persons delivered an amount of Rs,267,844,000 (Rupees twenty-six crores seventy-eight lac and forty four thousands only). They stopped business when the State Bank of Pakistan intervened. Record reveals that even 12 post-dated cheques were given to some of the affectees for monthly profits and return of part of principal amount but, as per record, almost all the cheques, so issued, were dishonoured by the Banks on their presentation. Record further shows that about 385 families have been ruined at the hands of the petitioner and his co-accused, 680 claims were submitted and all the said persons have fully implicated the petitioner and his co- accused in their statements with the alleged commission of the offence. We are of the, prima facie, view that the offence allegedly committed by the petitioner and his co-accused falls within the definition of "Corruption and Corrupt Practices", is fully covered by clauses (ix) (x) to subsection (a) of section 9 of the National Accountability Ordinance, 1999 which is punishable under section 10 of- the said Ordinance, therefore, we are of the view that the reference has properly been filed before the learned Accountability Court and we find no illegality in it. For a facility of reference, the relevant provisions of law are quoted below:--- Clauses (IX)(X), subsection (a) of section 9:- "9. Crruption and Corrupt Practices.--- (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:-
(ix) If he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act. XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person; or.
(x) If he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code, 860 (Act XLV of 1860), with regard to any property including money or valuable security entrusted to him by members of the public at large".
Section 10(a)
"10. Punishment for.Corruption and corrupt practices.--- (a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years, and with fine and such of the assets and pecuniary sources of such holder of public office or person as are found to be disproportionate to the known sources of his income or which are acquitted by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents or Benamidars shall be forfeited to the appropriate government or the concerned bank or financial institution as the case may be."
9. As far as question of grant of bail after arrest to the petitioner is concerned, main contention of the learned counsel for the petitioner was that the petitioner is in Jail for the last about thirty-three months and there is no likelihood of conclusion of the trial in the near future coupled with the fact that the delay in this conclusion has been caused by the prosecution side.
10. Vide order of this Court dated 5-10-2009, a report was requisitioned from the learned trial Court qua latest position of the trial and reasons for its non-conclusion. In compliance to the said order, the learned Judge, Accountability Court No,V, Punjab, Lahore, has submitted an exhaustive report qua progress in the case. The report submitted by the learned trial Court indicates that, firstly, the case was received by it on 13-3-2007 and the charge was framed on 13-8-2007, meaning thereby, that the charge was delayed for about five months because of different applications filed by the petitioner which could not be timely disposed of mainly on account of non-availability of the learned counsel for the petitioner, secondly, after framing of charge on the above mentioned date i.e. 13-8-2007, the reference was adjourned time and again and out of this, many adjournments were taken either on behalf of the petitioner or his learned counsel and in para.3 of the report it has categorically been reported by the learned trial Judge that the accused are responsible for ,the delay in disposal of the reference, therefore, in our view, only the prosecution cannot be held responsible for the delay in conclusion of the trial
11. So far as contention of the learned counsel for the petitioner regarding release of the petitioner on bail to discharge his liabilities qua return of payments of the victims is concerned, suffice it to say that for the said purpose the petitioner has a remedy of "plea-bargain" as available under section 25 of the National Accountability Ordinance, 1999.
12. We have noted that petitioner's earlier two bail petitions i.e. Civil Miscellaneous No,2 of 2007 and Civil Miscellaneous No,1 of 2008 (in Writ Petition No,3546 of 2007) filed in Reference. No,8 of 2007, have already been dismissed by a learned Division Bench'of this Court consisting of our learned brothers Tariq Shamim and Muhammad Ahsan Bhoon, JJ (as they then were) on 2-7-2008.
Relevant portion of said bail refusing order reads as under:--- "(4) The petitioner is alleged to have cheated the public-at-large by inviting investment through advertisements and thereafter misappropriating the same. On receipt of 385 complaints from the public-at-large against the petitioner, the competent authority, authorized inquiry on 30-10-2006, whereafter the petitioner was arrested and the investigation commenced. The total amount allegedly misappropriated by the petitioner is more than rupees 20 crore. Three hundred and seventy-five (375) affectees have got their statements recorded under section 161, Cr.P.C. In which they have fully implicated the petitioner with the crime. The claims of affectees were duly verified by a Chartered Accountant. After submission of challan/reference, the trial .Has 'commenced and twenty prosecution witnesses have so far been examined. There is ample incriminating material available on the record to connect the petitioner with the crime."
13. It is true that expeditious disposal of a criminal case is the right of every accused person, but, delay, per se, would not entitle every accused for the grant of bail after arrest. Two factors are very material and relevant, firstly, who is responsible for the delay in the conclusion of the trial. If the delay has been caused or occasioned because of acts/steps of the Prosecution, such as, timely non-submission of challan/reference or non-production of the Prosecution Witnesses, then the accused can justifiably claim bail, but, if he himself is also responsible for the, said delay then the situation would be different. Secondly, the nature and gravity of allegations against the accused is also to be considered. In the instant case, the learned trial Court, after explaining each and every adjournment, has categorically stated that the accused is responsible for the delay in disposal of the present reference.
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18. The precedent case law relied upon by the learned counsel for the petitioner is distinguishable and is not applicable in this case because almost in all those cases the allegations against the accused were either misuse of authority or acquisition of assets disproportionate to known sources of income. But in the instant case allegations against the petitioner and his co-accused are that they cheated public at large within the meanings of section 9(a), clauses (ix)(x) of the National Accountability Bureau Ordinance, 1999. The allegations are serious and heinous in nature. The petitioner and his co-accused have allegedly misappropriated an amount of Rs,267,844,000 (Rupees twenty six crores seventy eight lac and forty four thousand only) collected from the ordinary persons on the promise of giving them high profits whereby hundreds of people have been deprived of their hard earned savings some of whom were also present in Court along with their learned counsel and showed their strong apprehension that if the petitioner is allowed bail then he will flee from the country to avoid process of law. Furthermore, the delay in conclusion of the trial in question is not only because of the prosecution but the accused side is too responsible for such a delay.
19. We have gone through the judgment cited by the learned Special Prosecutor NAB in Faisal Hussain Butt v. The State and another (2009 SCMR 133) to contend that merely on the basis of delay in conclusion of trial bail cannot be allowed to an accused. In the said case, allegation against the accused was that he, along with his co-accused, misappropriated huge amount (Rs,298,000 million) from Allied Bank Limited where he was serving as incharge in C.D. Department and the case was fixed for evidence. However, while dismissing the said bail petition, a direction was issued by the Honourable Supreme Court of Pakistan to the learned trial Court to conclude the trial within five months.
20. In view of what has been discussed above Writ Petition No,4364 of 2008 (Azhar Zia Mian v. The State and others) and Writ Petition No,3546 of 2007 (Azhar Zia Mian v. NAB and others) are dismissed having no merits. It is made clear that the above findings are only tentative in nature and shall not influence the learned trial Court during the trial.
21. However, before parting with the order and in the paramount interest of justice we are inclined to direct the learned trial Court to expedite the trial and conclude the same within a period of six months positively.