MUSARRAT WILALI, J.- This petition is with the prayer to declare the acts of respondents refusing to extend the remission to the petitioner and withholding his release may graciously be declared unlawful, without lawful authority and of no legal effect with direction to respondents to set free the petitioner forthwith. Further, as an interim relief, release of the petitioner on ad-interim bail was also sought.
2. Facts as divulged from the petition are that the petitioner was tried by the learned Accountability Court-II, Peshawar u/s 10 (a) of NAB Ordinance and convicted and sentenced to 7 years RI with a fine of Rs.72,31,862.48/- or in default thereof to suffer 3 years SI vide judgment dated 11.12.2012.
Feeling aggrieved, he filed appeal before this court, which was partially allowed and the quantum of sentence was reduced from 7 years RI to 4 years RI and fine from Rs.72,31,862.48/- to Rs.42,53,292.40/- or in default thereof to suffer 1 years SI vide judgment dated 28.5.2013. It is asserted that the petitioner is undergoing sentence of imprisonment in jail since his date of arrest.
In the meanwhile, the Ministry of Interior, Government of Pakistan vide letter dated 7.1.2014 granted total remission to male prisoners of 65 years of age or above if has suffered 1/3rd of their substantive sentence of imprisonment except those convict involved in culpable homicide and terrorist acts as defined in the Anti-Terrorism (2nd amendment) Ordinance-XIII of 1999. According to the petitioner, as per CNIC, his age is 64 years, 4 months and 18 days, therefore, he was not considered entitle to remission of 65 years age. He was got examined by Standing Medical Board to ascertain his exact age and as per opinion, he is between 63 to 68 years. Since the opinion of Standing Medical Board was not clear on the point of age and there was noticeable margin about the exact age of the petitioner, therefore, another Medical Board comprising of five senior Medical Officers was constituted and according to their unanimous opinion, the petitioner is 65 years plus.
Along with the petitioner, seven other prisoners were also examined by the same Board and they have been given the benefits of report of 2nd Standing Medical Board but it has been withheld in respect of petitioner, hence this petition.
3. The petitioner being aggrieved of the judgments of both the learned trial court and High Court, filed criminal petition No.73-P of 2013 before the august Supreme Court in which leave has been granted to him on 10.2.2014. During pendency of this writ petition, the petitioner has preferred Cr.M.594-P of 2014 u/s 426 2-b Cr.P.C. seeking bail on suspension of his sentence.
4. Learned counsel for petitioner contended that the petitioner alongwith some others was examined by 2nd Medical Board and they have been given the relief but it has been withheld in respect of petitioner, which is in violation of Articles 4 and 25 of the Constitution; that the petitioner has been granted leave by the august Supreme Court as per provision of Section 426 2-b Cr.P.C., therefore, is entitled to the concession of bail on suspension of his sentence. In support of his arguments, learned counsel referred to case law reported as PLD 2002 SC 408, PLD 2005 SC 63, 2010 SCM R 1697, 2011 SCM R 136 and PLD 2011 SC 1144.
5. As against that learned DPGA vehemently opposed this petition mainly on the ground that Section 426 2-b Cr.P.C. is not applicable to the cases registered under the NAB Ordinance and that the question of remission is not entertainable at this stage, therefore, Cr.M. 594-P of 2014 alongwith writ petition may be dismissed as not maintainable.
6. Heard. No doubt, the provisions of Criminal Procedure Code have been made applicable to the proceedings in cases registered under the NAB Ordinance. In order to appreciate the issue, it will be advantageous to reproduce Section 17 of the Ordinance in verbatim, which is as under:- Section 17.
(a) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions to this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis apply to the proceedings under this (Ordinance).
(b) Subject to sub-section (a), the provisions for Chapter XXIIA of the Code shall apply to trial under this Ordinance. Notwithstanding anything contained in sub-section (a) or sub-section (b) or in any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.
(d) Notwithstanding anything in Section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with tried at one trial for any number of such offences".
7. We may also refer to Section 9 (b) (un-amended) of the Ordinance, wherein, the application of the of provisions of Sections 426, 491, 497, 498 and 561-A Cr.P.C. to the cases registered under the NAB Ordinance have expressly been ousted. For convenience sake, Section 9 (b) (un-amended) is reproduced as under:- Section 9 (b).
All offences under this Order 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 (including High Court) shall have jurisdiction to grant bail to any person accused of any offence under this Order.
8. Considering the provisions of the Ordinance harsh, the same were challenged before the august Supreme Court in the case titled Khan Asfandyar Wali Vs. Federation of Pakistan reported in PLD 2001 SC 607. The Hon'ble Supreme Court while dilating upon the question of bail, referred to the case of Zafar Ali Shah etc Vs. General Pervez Musharraf Chief Executive (PLD 2000 SC 869), wherein, it was held that the power of superior courts under Article 199 of the Constitution remain available to their full extent notwithstanding anything contained in any legislative instrument enacted by the Chief Executive" whereas Section 9 (b) of the NAB Ordinance purports to deny to all courts, including High Courts, the jurisdiction of bail u/ss 426, 497, 498 and 561-A Cr.P.C. or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well settled that the superior courts have the powers to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as Section 497 of Criminal Procedure Code, Section 9 (b) of the NAB Ordinance to that extent is ultra vires of the Constitution. Accordingly, the same be amended suitably.
9. In the fore noted judgment, the august Supreme Court without declaring Section 9 (b) of the Ordinance ultra vires to the Constitution in toto, recommended suitable amendments in the National Accountability Ordinance, 1999 whereafter through Ordinance No.XXXV of 2001, the word High Court was omitted from Section 9 (b) of the Ordinance.
10. In the case of Haji Ghulam Ali Vs. The State reported in 2003 SCM R 597, it has been made abundantly clear that omission of the word "High Court" in Section 9 (b) through Ordinance No.XXXV of 2001 dated 10.8.2001 would not entitle a person facing prosecution under NAB Ordinance to invoke the jurisdiction of High Court u/ss 426, 491, 497, 498 and 561-A Cr.P.C.
11. In view of the omission of the word "High Court" from Section 9 (b) of the Ordinance ibid, a person accused of an offence under the NAB Ordinance can invoke the constitutional jurisdiction of High Court as no Ordinance or law how special it may be, can curtail or take away the powers given to it by the Constitution as the same is primary law of the land. Every Statute runs subservient to the primary law. Reference may also be made to the cases of "The State Vs. Haji Kabeer Khan (PLD 2005 SC 364), Chairman Accountability Bureau Vs. Asif Baig Muhammad (2004 SCM R 911), Chaudhry Zulfiqar Ali Vs. The State (PLD 2002 SC 546)".
12. The petitioner, during pendency of the writ petition, has filed Cr.M. 594-P of 2014 before this court on the ground that since he has been granted leave to appeal by the august Supreme Court in Criminal Petition No.73-P of 2013, therefore, this court u/s 426 2-b Cr.P.C. shall suspend the sentence of the petitioner pending appeal.
13. This plea of the petitioner has got no weight as there is no statutory silence in the Ordinance with regard to the applicability of Section 426 Cr.P.C. The language used in Section 9 (b) of the Ordinance is plain and un-ambiguous. The words can be modified or varied where the import is doubtful or absurd but where the words are plain and unambiguous, then the courts are bound to give effect to it.
14. The petitioner, as per medical report attached, is patient of ischaemic heart disease and requires regular treatment and care. Having regard to the circumstances of this case, considering the quantum of remaining sentence and the opinion of Medical Board, the petitioner can be released on bail.
15. Accordingly, the prayer for interim relief is allowed and the petitioner is granted ad-interim bail on furnishing bail bonds in the sum of Rs.2.1 million with two sureties each in the like amount to the satisfaction of learned trial court.
16. As we have ordered the release of the petitioner on medical grounds, therefore, Cr.M.No.594-P of 2014 filed for the same relief has become superfluous and dismissed as such. However, the writ petition is to be fixed by the office on appropriate date.
These are the detailed reasons for our short order of even date.