' Invoking the constitutional jurisdiction of this court, present petitioner, accused in Reference No.47 of 2008 seeks premium of post arrest bail.
2. Precise allegation against the present petitioner is that he established a firm under the name and style of "Messrs Cash & Future Trading Consultants", inviting public at large to make investment with understanding to pay attractive profit and due to his inducement, members of Public at large invested amount but later on, he misappropriated the amount depriving them from their valuable assets by committing criminal breach of trust and as such after investigation, reference was sent against him, now subjudice before the learned Accountability Court at Lahore.
3. Learned counsel for the petitioner contended that petitioner was arrested on 9th of November, 2012 but the trial has not been concluded. Submitted that during investigation, petitioner got recorded his version that he deposited USD 4,80,000 (equal to sum of Rs.2,93,92,800) with one Shahid Hassan Awan, who was operating the company "Messrs Bulls & Bears (Pvt.) Limited", and also submitted his claim before The National Accountability Bureau which was registered at Sr.
No.7968 along with copy of agreement dated 1st of July 2013 executed by said Shahid Hassan Avvan (who is facing trial before the learned Accountability Court in Reference No. 35 of 2005).
Contended that petitioner himself is victim of said Shahid Hassan Awan, who defrauded the petitioner. Further contended that the total liability calculated by The National Accountability Bureau against the petitioner is included in the liability of Shahid Hassan Awan determined in Reference No.35 of 2005.
' Continuing the arguments, learned counsel for the petitioner contended that initially reference was sent against Shahid Hassan Awan but later on The National Accountability Bureau not only filed separate references against the present petitioner but also against Muhammad Azam Chishti and Masood Riaz Wahia, who were also victim of said Shahid Hassan Awan.
' Further argued that petitioner in fact should have been cited as witness in Reference No. 35 of 2005 but after considerable time citing him an accused Reference No.47 of 2008 was submitted.
Contended that petitioner made an application under section 540 of The Code of Criminal Procedure 1898, for his appearance as witness in Reference No.35 of 2005 which application was not contested by The National Accountability Bureau, and was allowed, by the learned Accountability Court. Submitted that in the circumstances, the contention of the petitioner regarding his victimization from the hands of Shahid Hassan Awan stands established and as such further detention of the petitioner and that too for an indefinite period will not serve any useful purpose.
4. Repelling the arguments and controverting the assertion of the petitioner, learned law officer for The National Accountability Bureau stated that stance taken by the petitioner is clear admission of his liability and guilt and as such is not entitled to relief of bail and that too in the constitutional jurisdiction. Further submitted that the concept of bail in the proceedings under The National Accountability Ordinance 1999 (Ordinance XVIII of 1999) is alien.
' Though it was admitted by the learned law officer that application under section 540 of The Code of Criminal Procedure 1898, made by the petitioner was accepted by the learned Accountability Court for his appearance as witness in Reference No.35 of 2005 pending adjudication against Shahid Hassan Awan, but it was controverted that outstanding liability of the petitioner is included in the liability of Shahid Hassan Awan accused in Reference No.35 of 2005.
' Further submitted that trial is near conclusion and as such no indulgence can be shown in favour of the petitioner.
5. No doubt right of bail has not been expressly provided in The National Accountability Ordinance (No.XVIII of 1999) (hereinafter called The Ordinance) but argument advanced for dismissal of petition on this score is misconceived and ill-founded.
6. It is well-settled law that constitutional jurisdiction can be exercised in order to grant bail in appropriate cases independently of any statutory provisions available under The Ordinance.
' Similar proposition was moot point before a learned Division Bench of this court in "Makhdoom JAVED HASHMI v. THE STATE and 2 others" (2003 PCr.LJ 266) and it has been held at page 272 as follows:-- ' So far as power of this Court under Article 199 of the Constitution is concerned the law by now is settled that this Court can exercise its powers under Article 199 of the Constitution to grant bail in appropriate cases. The ouster clause of the National Accountability Ordinance to which reference was made by the learned Deputy Prosecutor-General was specifically attended to by the august Supreme Court in Khan Asfandyar Wail and others v. Federation of Pakistan and others PLD 2001 SC 607 and it was categorically reiterated the earlier view given in Zafar Ali Shah's case: that the powers 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 in all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 and 561-A 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 power to grant bail under Article 199 of the Constitution independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution". (Underlining is ours).
7. Keeping in view the above settled proposition of law, now the facts of the case are to be examined in order to reach the conclusion whether the petitioner is able to make out the case for grant of bail or otherwise.
8. We are in agreement with the contention of the learned 'law officer that there is an admission on the part of the petitioner regarding his liability which he owes to different claimants but nevertheless that B admission by itself would not be sufficient to decline the relief keeping in view the defence which has to be considered in its totality.
9. It is the case of the present petitioner that amount received by him from the different investors was invested by him with Shahid Hassan Awan who was operating a company under the name and style of "Messrs Bulls & Bears (Pvt.) Ltd.".
10. Though the learned law officer disputed the stance of the petitioner that the petitioner invested the amount with the company of Shahid Hassan Awan, accused in Reference No. 35 of 2005 but facts and circumstances of the case negates the contention of learned Law Officer.
11. It is to be noted that present petitioner filed Writ Petition No.17091 of 2013 seeking multiple relief including issuance of direction to The NAB to include his name in the list of prosecution witnesses in Reference No.35 of 2005 titled "The State v. Shahid Hassan Awan", in order to prove his claim of Rs.2,93,92,834, relief regarding quashment of Reference No.47 of 2008 filed against the petitioner and to put restraint upon The National Accountability Bureau, to recover the amount. Though reliefs were declined by the learned Division Bench of this court' as is evident from Para-3 of the order dated 26th of September, 2013 but it was opined that contents of the reference No.35 of 2005 clearly spells out that two cheques issued by Shahid Hassan Awan are part of the reference pending against him.
12. With this background the petitioner was advised to approach the learned trial Court for redressal of his grievance by making an appropriate application as one of the affectees who accordingly made application under section 540 of The Code of Criminal Procedure 1898, before the learned Accountability Court for his appearance as witness which application was allowed by the learned Accountability court which order was not assailed by The National Accountability Bureau.
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17. It is further to be noted that Criminal Miscellaneous No.37-T of 2014 was filed by the present petitioner, for entrustment of reference No.47 of 2008 subjudice against him as well as Reference No.35 of 2005 pending against Shahid Hassan Awan to one and the same court which was allowed.
In Para 5 of the said order, reference was made to the reply of the application under section 540 of The Code of Criminal Procedure 1898, filed by NAB admitting the claim of the petitioner as part of the Reference No.35 of 2005.
14. Learned counsel for the petitioner drawn our attention to the statement of Hamad Khawaja (P.W.14) appeared in Reference No.35 of 2005 in order to substantiate his contention regarding inclusion of amount of his claim in Reference No.35 of 2005 and perusal of statement of said witness substantiate the contention of the petitioner as his claim finds mention at Serial No. 993 in the statement of that witness.
15. In view of the matter argument canvassed by the learned law officer for The NAB disputing the assertion of the petitioner to the effect that claim of the petitioner as one of the affectees is not included in Reference No.35 of 2005 stands negated.
16. It is further to be noted that one Masood Riaz Wahla against whom Reference No. 44 was prepared, made offer of plea bargain which was approved by The National Accountability Bureau as is evident from letter dated 16th of April 2008 in which claim of Rs.120-Million which was against the said accused was deferred by The National Accountability Bureau keeping in view his stance that said amount was invested by him with the company of Shahid Hassan Awan.
17. Keeping in view all the facts and circumstances of the case, we are of the considered view that it is an appropriate case for grant of bail to the petitioner which would enable him to prepare his defence not only in the reference pending against him but also to prove his claim in Reference No.35 of 2005 being one of the affectees.
18. Epitome of above discussion is that while accepting the petition, petitioner is admitted to bail subject to furnishing bail bonds in the sum of five million rupees with two sureties in the like amount to the satisfaction of the learned trial Court.
19. Name of the petitioner shall be placed in the Exit Control List by the Interior Ministry, Government of Pakistan till the decision of reference pending against him and due Intimation shall be sent by NAB to the Ministry of Interior, Government of Pakistan for compliance of the said direction.