' SH. AHMAD :FAROOQ, J.---The petitioner filed Writ Petition No,20947 of 2010, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking his release on bail till the decision of Reference No,23 of 2010, pending adjudication in the Accountability Court No,3, Lahore.
2. Succinctly, the allegations, levelled against the present petitioner in the aforesaid Reference, are that he, being president of Official. Employees Cooperative Housing Society, Limited, Lahore, illegally sold society's entire land, without obtaining prior approval from the Registrar, Cooperative .Society, Punjab and AGM. He is also alleged to have obtained illegal gains and misappropriated funds of the society . Amounting to Rs,54,65,562, in addition to committing criminal breach of trust to at least fifteen hundred affectees of the society.
3. The aforesaid writ petition was accepted by this Court on 15-11-2010 and the petitioner was ordered to be released on bail, subject to deposit of Rs,25,00,000 with the learned Trial court and furnishing of bail bonds in the sum of Rs,2,00,000 with two sureties each in the like' amount to the satisfaction of the learned Trial Court. However, it was clarified that in case of his acquittal by the learned Trial Court, the petitioner' would be entitled to the refund of the amount, deposited by him.
Thereafter, the petitioner filed a Civil Miscellaneous Petition No,215 of 2011, wherein he prayed that he may be allowed to hand over/transfer the immovable property/land, measuring 19 marlas and 200 sqft., situated within the revenue estate of Mouza Nain Sukh, Tehsil and District Lahore, in lieu of cash security of Rs,2.5 million, in compliance with the order of this Court, dated 15-11-2010. This miscellaneous petition was dismissed by this court, vide order dated 8-6-2011, as the immovable property offered by the petitioner for its handing over/transfer in lieu of cash deposit, was found to be owned by as many as six persons including the petitioner and the petitioner's share therein was worth only Rs,4,37,000. Against the said order, dated 8-6-2011, the petitioner filed a Civil Petition No,1082-L of 2011 before the Hon'ble Supreme Court of Pakistan, in which the following order was passed:-- ""Having heard the case at considerable length, we had dictated the order in the court. However, before signing the same, the petitioner stood and stated that permission be accorded to withdraw the instant petition. Dismissed accordingly"
' Subsequently, the petitioner filed Civil Miscellaneous Petition No,3074 of 2011 before this Court for modification of the order dated 15-11-2010, in addition to seeking permission to deposit the title deed and sale of a house, owned by him and his family members, by way of security. He also prayed to reduce the amount of cash deposit to a reasonable extent. In the alternative, the petitioner solicited enhancement of the amount of the surety bonds for his release on bail. This Civil Miscellaneous Petition was also dismissed by this Court, vide order dated 26-9-2011, which was again assailed through Civil Petition No,1703 of 2011 in the apex Court. The Hon'ble Supreme Court, vide order date 15-11-2011, accepted the petition and remanded the case to this Court for a fresh decision. In this backdrop, the case of the petitioner is being decided afresh.
4. Learned counsel for the petitioner argued that condition of depositing cash security could not be attached while admitting the petitioner to bail and as such, the conditional bail granting order is not in accordance with law. In this connection, while referring to sections 497 and 499, Cr.P.C, he has cited the cases of Mian Mahmud Ali Qasuri and others v. The State (PLD 1963 Supreme Court 478), Muhammad Khokhan and another v. The State (2005 PCr.LJ 1674), Ahmed v. The State (2005 YLR 236), Imdad Hussain v. The State (2011 MLD 940), Haji Aziz-ur Rehman v. The State (2006 YLR 960), Amir Sardar v. The State (1990 PCr.LJ 414) and Laeeq Ahmed v. The State (2011 YLR 75).
5. On the other hand, learned Additional Deputy Prosecutor-General, NAB, has vehemently opposed the petition and submitted that the petitioner has committed a white collar crime by misappropriating huge funds of a Co-operating Society and public money, thus, keeping in view the spirit of National Accountability Ordinance, 1999, the court has rightly directed the petitioner to deposit cash security of Rs,2.5 million.
6. We have considered the respective contentions of learned counsel for the parties and examined the record.
7. Admittedly, the Reference, filed against the present petitioner by the Chairman, National Accountability Bureau, under section 18(g) read with section 24(b) of the National Accountability.
Ordinance, 1999, is pending adjudication before Accountability Court No,3, Lahore. According to section 9(b) of the National Accountability Ordinance, 1999, no Court shall have the jurisdiction to grant bail to any person accused of any offence under this Ordinance. In this connection, it would be advantageous to reproduce hereunder section 9(b) of the Ordinance "All offences under this' Ordinance shall be non-bailable and notwithstanding anything contained in Ss. 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance. "
' A bare perusal of the aforementioned provision of law would reveal that sections 497, 498 and 561-A, Cr.P.C, or any other provision of the Code, or any other law for the time being in force, are not applicable to the offences falling under National Accountability Ordinance, 1999. Even otherwise, according to section 3, the provisions of the National Accountability Ordinance, 1999, have and over-riding effect notwithstanding anything contained in any other law for the time being in force.
However, High Court, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has the jurisdiction to grant bail to A an accused facing prosecution for an offence under the National Accountability Ordinance, 1999. In the case of Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad (PLD 2003 Supreme Court 668), it was pronounced that High Court has the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497, Cr.P.C. Needless to observe that ouster of jurisdiction of High Court to grant bail in scheduled offences has been done away by amendment in section 9(b) of National Accountability Ordinance, 1999, after omission of the word "including the High Court". The High Court, while considering the question of bail in its Constitutional jurisdiction, in the interest of safe administration of justice, can examine the nature of allegations on the basis of tentative assessm ent of the evidence in hands of prosecution to ascertain, prima facie, the question of guilt or innocence of an accused for the purpose of grant or refusal of bail and without expressing any opinion on merits of the case, lest it should prejudice the accused or prosecution. The rule of departure from the provisions of section 497 Cr.P.C. In presence of the special enactment is enunciated in the case of Chaudhry Shujat Hussain v. The State (1995 SCMR 1249), wherein, it has been observed that in case of conflict between the provisions of the Offences in Respect of Banks (Special Courts) Ordinance of 1984, and the provisions of the Code of Criminal Procedure regarding scheduled offences, the Ordinance, 1984, being a special law, would prevail. Therefore, the provisions of sections 497 and 499, Cr.P.C. Will not stricto sensu apply to the cases falling under the National Accountability Ordinance, 1999, in view of sections 3 and 9(b) of the Ordinance ibid. In the case of The State v. Muhammad Hasham Babar (PLD 1997 Lahore 605), it was held that the area of asking security from the accused, who is allowed bail, is vacant and the Court is not enjoined under the law to mathematically follow the system of securities, provided in the Code of Criminal Procedure. In the case supra, it was laid down that under the new dispensation, i,e, Ehtesab Ordinance (XX of 1997), which was an earlier enactment on the subject of accountability, the Court has ample power to ask for cash security in appropriate cases.
8. The present petitioner, who was a civil judge and subsequently dismissed from service by the competent authority, is alleged to have misappropriated the entire sale proceed of the society's land amounting to Rs,54,65,562. The trial of the petitioner is in progress and he was granted bail by this Court, vide order dated 15-11-2010, subject to deposit of Rs,25,00,000 as cash security with the learned trial court and furnishing of bail bonds in the sum of Rs,2,00,000 with two sureties in the like amount each to the satisfaction of the learned trial court. Nevertheless, the count so deposited was ordered to be refunded to the petitioner, in case of his acquittal by the learned trial court. In the peculiar circumstances of this case, this Court has exercised its discretionary jurisdiction quite judiciously by passing conditional bail order for release of the petitioner. The object of promulgating the National Accountability Ordinance, 1999, as evident from the preamble, is to eradicate corruption, corrupt practices, recovery of State money/property from such wrong doers or who have purchased assets through corruption, misuse of power or authority. The present petitioner had earlier filed a petition to seek permission to pledge some constructed properties in lieu of cash deposit of Rs,25,00,000 and the National Accountability Bureau was asked by this Court, vide order dated 4-5-2011, to verify the title and to ascertain the market value of the said property.
During the enquiry, conducted by the National Accountability Bureau, it transpired that the property, proposed to be pledged by the petitioner in lieu of the cash security of Rs,2.5. Million, was inherited by as many as six legal heirs of Sana Ullah (deceased) including the petitioner and the share of the petitioner therein was only to the extent of Rs,4,37,000. In these circumstances, releasing the petitioner, without getting deposit cash security of Rs,2,5 million, would amount to putting a premium on his alleged act of misappropriation, embezzlement of a huge amount and commission of fraud with the public at large..
9. For the foregoing reasons, the Civil Miscellaneous Petition No,3074 of 2011, being devoid of any merit, is dismissed.
10. However, if the petitioner is still prepared to deposit Rs,25,00,000 with the learned Trial Court by selling his joint property with the consent of other legal heirs or arranging the said amount through some other source, he shall be released on bail on furnishing bail bonds in the sum of Rs,2,00,000, with two sureties, in the like amount each, to the satisfaction of the learned Trial Court. In case of acquittal of the petitioner by the learned Trial Court, he shall be entitled to the refund of the amount so deposited by him.