' TASSADUQ HUSSAIN JILLANI, J.---Petitioner Muhammad Jameel Rohl along with two others (Sh.
Adnan and Seth Iftikhar) were proceeded against in NAB Reference No, 25 of 2009 on the allegation that acting as agents of one Double Shah they lured several hundreds people to invest money in a scheme which promised to make the amount invested double as profit. The final report/challan was submitted before the trial' Court on 18-9-2009 whereas petitioner was arrested on 24-7-2009 and he is behind the bars since then whereas the other two accused are still fugitive to law.
Petitioner's constitutional petition seeking hail inter alia on grounds of delay in trial was dismissed by the learned Division Bench of the High Court vide the order dated 27-10-2010 with direction as follows:-- "However, keeping in view the fact that the reference is pending before the learned trial Court since 18-9-2009, the learned trial Court is directed to conclude it, as expeditiously as possible, preferably within a period of four months from today."
2. The afore-referred direction was not complied with and petitioner again moved the learned High Court for bail which stands dismissed vide the impugned order dated 17-10-2011 inter alia on the ground that on 15 occasions, learned Presiding Officer was not present, thus the prosecution could not be blamed; that on 6 days, prosecution witnesses were present but their statements could not be recorded due to "certain reasons" for which prosecution could not be blamed and only on 5 occasions, defence had itself sought adjournments. In the afore-referred breakup of the adjournments, according to learned High Court, the "prosecution is responsible only for four occasions when the proceedings in the trial could no be carried out."
3. Learned counsel for the petitioner has sought bail besides the delay in trial on the ground that petitioner is not a beneficiary of the allegedly looted amount; that the allegation that petitioner along with others received an amount of Rs,141.3406 million is incorrect; that the details of the bank accounts are in possession of the prosecution, which does not indicate the deposit of this amount; that petitioner did not purchase any property to connect him with the afore-referred amount and that his incarceration in jail for the last more than 28 months amounts to punishment without trial.
Learned counsel placed reliance on Muhammad Saeed Mehdi v. State (2002 SCM R 282), Muhammad Jehangir .Badar v. State (PLD 2003 SC 525), Abdul Aziz Khan Niazi v. State (PLD 2003 SC 668) and Arif Sharif v. Chairman NAB (2004 SCM R 1805).
4. On the other hand, Mr. Fauzi Zafar, learned ADPG, NAB opposed the petition by submitting that petitioner is accused of embezzling a huge amount; that the delay in trial is not on account of any act of the NAB; that the witnesses could not be examined as after retirement of a trial Court Judge, the learned High Court did not appoint his successor and that in any case in view of section 9 of the NAB Ordinance, the grant of bail on statutory ground is not tenable.
5. Having heard learned counsel for the petitioner and learned counsel for the NAB, we find that notwithstanding section 9-B of the NAB Ordinance, this Court has allowed bail in several cases. In Muhammad Saeed Mehdi v. State (2002 SCM R 282), this Court candidly observed that notwithstanding section 9-B of the NAB Ordinance, the Court could exercise jurisdiction to allow bail. The Court held as follows:-- "8. Adverting to bar of jurisdiction in the matter of grant of bail under NAB Ordinance, the High Court, apart from dealing with the provisions of sections 491, 497, 498 and 561-A, Cr. P. C., appears to have been impressed by the provisions contained in section 9(b) of NAB Ordinance. The observation that the bar of jurisdiction under clause (b) of section 9 of NAB Ordinance was not only confined to the Courts constituted under NAB Ordinance but it extended to all Courts, including the High Court, we suffice by observing that this question has been set at rest by a Full Bench of the Lahore High Court in Anwar Saifullah Khan v. State (PLD 2000 Lahore 564) ratio whereof is binding on the learned Judge in Chambers. In this case various provisions of the Code of Criminal Procedure as well as section 9(b) of NAB Ordinance were elaborately discussed at length and as per majority view it was ruled that the High Court had the jurisdiction under Article 199 of the Constitution to grant bail to a person accused of an offence under NAB Ordinance inappropriate cases in that the bar of jurisdiction thereunder being in the nature of legislative enactment could not take away the jurisdiction of the High Court under Article 199 of the Constitution. It was rightly held that Constitutional jurisdiction can also be exercised on the well- known principle of ubi jus ibi remedium i,e, 'where there is a wrong there is a remedy'. Furthermore, this Court having directed in Khan Asfandayar Wali (supra) to amend the provisions of NAB Ordinance suitably so as to bring them in conformity with the Constitutional dispensation, narrower view taken by the High Court can hardly be appreciated. Moreover, quite recently, the Sindh High Court has exercised such jurisdiction in Syed Ghous Ali Shah's case in C.P. No,1312 of 2001, decided on 17-8-2001 and in Asif Baig's case in C.P. No,1312 of 2001 decided on 16-7-2001, which provided valuable guidelines for the exercise of Constitutional jurisdiction rather than its abdication. As to the jurisdiction of this Court, needless to reiterate that even the unamended provisions of section 9(b) did not bar the jurisdiction of this Court to grant bail in appropriate cases. Moreso this Court expressed the same view in Shahida Faisal v. Federation of Pakistan (2001 SCMR 294) Anwar Saifullah Khan v. State (2001 SCMR 1040) and Mian Manzoor Ahmad Wattoo v.
State (2000 SCMR 107)."
6. Similarly in Muhammad Jehangir Badar v. State (PLD 2003 SC 525), the same view was reiterated and bail was allowed to accused facing trial in a NAB case, who was incarceration for less than 2 years. The afore-referred view was followed in Arif Sharif v. Chairman NAB (2004 SCM R 1805) wherein the Court observed as follows:-- "Perusal of the above provision of law clearly envisages that a person cannot be detained for purposes of investigation/inquiry for a period not exceeding 90 days and for every remand, reasons have to be recorded. Petitioner is in the judicial lock-up, and no Reference could be filed by NAB over a period of about two long years. No doubt, as ,pointed out by learned counsel for NAB that Reference has been filed on 4-3-2003, but again no progress whatsoever has taken place towards the conclusion of petitioner's trial despite lapse of a considerable time. Admittedly petitioner was arrested on 6-4-2001 and is in continuous detention over a period of 25 months and cannot be allowed to be detained for an indefinite period. Therefore, we are of the considered view that it is a fit case that warrants interference by this Court."
7. Respectfully following the afore-referred view, we find that in the instant case, petitioner who started his career as a school teacher and when arrested was an Assistant Education Officer, is behind the bars for the last more than 28 months and during this period, out of 416 prosecution witnesses, only 150 witnesses have been examined and the conclusion of trial in near future is not in sight. There is nothing on record to indicate that petitioner was, in any manner, responsible for this delay nor has it been alleged by the prosecution. In the afore-referred circumstances and without expressing ourselves on the merits of the case, we convert this petition into appeal and allow the same and subject to petitioner's furnishing bail bonds in the sum of Rupees One million with two sureties in the like amount to the satisfaction of the trial Court, he shall be released on bail pending trial. Needless to observe, if petitioner, in any manner, misuses the concession of bail during trial, it would be open for the prosecution to move for cancellation of bail.