MALIK HAQ NAWAZ, J.---The three writ petitions filed under Article 71(2) of Self Governance and Empowerment Order, 2009 have been filed by the petitioners praying for their release on bail, who have been booked under the NAB Ordinance, 1999.
2. Since all the above captioned petitions involve identical question of law and facts, therefore, these are being disposed of by this single judgment, capitulating a brief history of each case.
W.P. No, 24/2016 Mirbaz Ali Faraz v. The State through NAB
3. The petitioner has been booked under section 9(a) and section 12 of NAB Ordinance, 1999 and he has approached this Court through the instant writ petition for grant of bail.
4. The learned counsel for the petitioner at the very outset submits that the petitioner has already gone through the rigor of a departmental inquiry and after conclusion of the said inquiry, he was compulsory retired from service which is a major punishment vide notification of the Govt. Of G.B.
The department of Services and General Administration Gilgit dated 24.1.2014. The petitioner filed an appeal against the said notification in Service Tribunal and the Service Tribunal vide its judgment dated 9.10.2015 set aside the notification of compulsory retirement and re-instated the petitioner, however the option was left open for the respondents to proceed against the petitioner in accordance with Rules 5, 7 of G.B. Disciplinary and Efficiency Rules, 2011.
5. The learned counsel submitted that the said order was not challenged before any competent forum and has attained finality. Per learned counsel the NAB authorities arrested the petitioner on the same charges, which is double jeopardy which is violation of protection provided under section 403, Cr.P.C. The learned counsel submitted that the petitioner is chronic heart patient and now-a- days admitted in PIMS hospital Islamabad. He needs a proper and constant treatment, which is not available in jail and the disease being life threatening, he may be allowed bail, coupled with the other merits of the case.
6. The learned Special Prosecutor NAB vehemently opposed the petition for grant of bail and submitted that the petitioner is well linked with the offences leveled against him and grant of bail, will amount to encourage the likeminded people, as the corruption has the creep in our Society as a social evil. The learned Special Prosecutor NAB further submitted that there exists a prima facie case against the petitioner and NAB law has been promulgated to eradicate the menace of corruption and there is a clear embargo in section 9(B) of the Ordinance that bail facility should not be extended to the accused booked for corruption and corrupt practices, under NAB Ordinance.
W.P. No, 27/2016 Shah Murad v. The State through NAB
7. The case of the petitioner is of an identical nature, as he was also compulsory retired from his service on the basis of departmental inquiry vide Govt. Of GB, Service and General Administration Notification dated 20.3.2015 and his appeal against the said notification is subjudice before the Service Tribunal Gilgit-Baltistan. The learned counsel adopted the same arguments and only added that the petitioner has under gone heart surgery and is still on medication and needs treatment, which facility is completely lacking in Jail.
8. The learned Special Prosecutor for NAB reiterated his arguments as stated supra in Writ Petition No, 24/16 and stated that the petitioner is not entitled for concession of bail, which is not provided under NAB law and he could be treated in jail.
W.P. No, 29/2016 Gujar Khan v. The State through NAB
9. The petitioner was booked by the NAB authorities under section 9(a)(vi) and (vii) on the allegations that he appointed 23 persons in Excise and Taxation Department in various cadres and later on misplaced the record of so appointed persons causing a huge loss to the Government Exchequer. The grounds of arrest mentioned reflects that he .Appointed the persons on a false and self written note "as recommended by departmental selection committee and approved by Secretary Revenue, Excise and Taxation Z & U and co-operative department Gilgit" which minutes were not traceable and were a fake creation on the part of the petitioner.
10. The learned counsel submitted at bar that there is no solid evidence of corruption or corrupt practices and the element of "mens rea" is completely lacking in the instant case. The learned counsel further stated that the allegations are baseless and non out of the 23 persons who were allegedly illegally appointed have not been examined as prosecution witnesses to link the petitioner with the crime that he got any wrongful gain for himself or for any other. Per learned counsel the NAB is in possession of all the relevant documentary evidence and there is no chance that the petitioner will tamper with the prosecution evidence.
11. The learned Prosecutor NAB, when confronted with the arguments raised at bar by the counsel for the petitioner, opposed the petition and stated that the offences committed by the petitioner are of heinous nature and grant of bail to the petitioner will militate against the very object of law, which was enacted in the larger interest of society and to ensure transparency in the government/semi government institutions and ensure rooting out corruption from all the spheres of society.
12. There is a bar to grant bail to the accused booked under National Accountability Bureau Ordinance, 1999 but the jurisdiction of the Superior Courts cannot be taken away by any enactment and if a survey of the past judicial history is carried out, there had always been a tug of war between Executive and Judiciary because, where ill designed efforts A are launched to curtail the liberty of the citizens by means of some executive instruments or by promulgating some statutes, the superior judiciary always plays its role for rescue of the people, and at the same time the Judges of the Superior Courts only to dispense justice sometime paid heavy price, but never bowed before the executive, if their actions were adjudged malicious.
13. There is no cavil to the proposition that when under any special law, the provisions of bail are not available the aggrieved party may approach the Court under its constitutional jurisdiction and the Court can entertain the prayer, keeping in mind the scheme of law, provided under sections 497/498, Cr.P.C., and allow the same if a case of further inquiry is made out or there is discriminations against the mandate of law or the purpose of convenience reference can be made to PLD 2003 SC 668 where it has been held, S. 9(a)---constitution of Pakistan (1973), Art. 199---Bail, grant of jurisdiction of High Court under Art.199 of the Constitution-- Scope---High Court, in exercise of its jurisdiction under Art.199 of the Constitution is empowered to grant bail to a person facing prosecution for an offence under the National Accountability Ordinance, 1999 and all those grounds which are relevant for grant of bail under the Ordinary law, can equally be considered for grant of bail in the constitutional jurisdiction High Court has the power to grant of bail under Art.199 of the Constitution, independent of any statutory source of jurisdiction such as S.497, Cr.P.C.---Provision of S. 9(b) of the National Accountability Ordinance, 1999 to that extent is ultra vires of the Constitution.
14. As far as the contention of the contention of the learned Special Prosecutor that in writ jurisdiction this Court cannot travel beyond the grounds/pleadings raised in the constitutional petition is concerned. We are unable to agree with the learned ,counsel for the NAB, as an bail matters, pleadings hardly matters as there is a vast difference in pleading of Order II, Rule 2 and in a writ petition for grant of bail, if a particular ground/grounds is/are not taken in a bail petition it, could be raised at the time of arguments, if it goes to the root of the case. The duty of the Court in such a situation is only to safe guard the interest of both the parties and provide level playing field to them and no party should be allowed to take its opponents in a surprise. The Court may take the notice of subsequent events, while hearing a writ petition.
15. Each and every case is always decided according to its own merits and peculiar circumstances, after taking into consideration all the attending circumstances and having a cursory glance over the material in the hand of prosecution.
16. It is strange to note that the actual beneficiaries, who all were privy to whole of these nasty affairs, are at large and NAB authorities are not interested to arrest them. The NAB authorities in Gilgit-Baltistan are acting so violently and that to with impunity, as they are sure that they are neither answerable nor accountable at any forum or before a Court of law and because of their high handiness they have jeopardized the whole system instead of contributing towards eradication of corruption. They have their own selective system of victimization and always running after the people of low profile category, which has put us E at guard to scrutinize the case with extra care and caution, just to repose the public confidence in Court of law and to make the NAB authorities understand that they are not above law and in case of injustice, the Courts will guard the honor and dignity of the people, which is our prime duty.
17. The NAB Ordinance is a special law and its use in oppressive manner is neither permissible nor can be allowed and it has to be tested on the touchstone of fundamental right guaranteed by the Self-Governance and (Empowerment Order, 2009), which is synonyms the Part-2 of the Constitution of Islamic Republic of Pakistan. Misuse of law F by the NAB authorities cannot be overlooked or ignored by the Courts as the Courts of law are the last ray of hope for the people and it is moral as well as legal obligation of the Courts to safeguard and defend the fundamental rights of the people especially, when someone over steps to encroach these rights. The NAB authorities under the law in respect of their functionaries and use of powers by them in respect of their functional exercise of these powers are not unfettered and always are subject to judicial scrutiny and any arbitrary and perverse action must be curbed and discouraged by the Courts and the cases in hand are classical example of the mis-usc of authority by NAB authorities at Gilgit, where they have arrested only low profile employees and actual beneficiaries are enjoying liberty with the unwarranted blessing of NAB authorities.
18. On our repeated queries the learned Special Prosecutor NAB/I.O. Of the case Mr. Abbas and Additional Director NAB Mr. Hamad Khan Niazi, failed to point out any single piece of evidence against the petitioners to satisfy us that, the NAB is in possession of any direct or circumstantial evidence to the effect that the petitioners got any illegal gain or any pecuniary advantage for themselves or for some others, so much so that non of a single appointee was examined under section 161, Cr.P.C. In support of the allegations that they paid any sort of gratification or bribe to the petitioners for their appointment and if so, such a mass level corruption could not be done in individual capacity by the petitioners without blessing of the people sitting in helm of affairs who are not insight anywhere.
19. Another aspect of the cases is that an illegal order in particular set of fact, may have the penal consequences, the departmental action under Gilgit-Baltistan Civil Servant Disciplinary and Efficiency Act-2011, the questions required to be resolved, in the present cases is whether the act of petitioners by itself will constitute the offence of corruption or corrupt practices as defined in section 9(a)(vi) of the Ordinance without proof of illegal gain and undue favour to constitute such an offence bringing the case within the four corners of corruption and corrupt practices, which needs determination by the trial Court after recording of evidence.
20. Since we are convenience, that the present cases are classical examples of mis-use of authority by NAB, discrimination involving many intricacies and anomalies bringing the cases within the purview of further inquiry under section 497(2), Cr.P.C., and the simple reason that where a criminal action is initiated against a person, which can be termed as mala fides, the Chief Court, becomes under moral and legal obligation to come for rescue of the accused against whom in our view prosecution has been launched Maliciously and on pick and choose basis, then it is our constitutional duty to protect the rights guaranteed under Chapter-II of Self Empowerment and Governance Order, 2009. In addition to the grounds of ailments of petitioners Fraz Ali Fraz and Shah Murad raised at bar and supported with long and delicate clinical history and Medical Boards reports. Bail under section 497(1), Cr.P.C. Is only discretionary and discretion is only exercised, when the Courts comes to the conclusion that despite advance medical technology and availability of most modern ways and means of treatments a particular accused still needs, such an extra and constant care, which is not available in jail.
21. Neither it was possible at bail stage, in the present cases, that accused alone were responsible in commission of crime, being their low profile positions in their respective departments. The role of each of the accused is to be seen in depth including chain of all their superiors, which would only be possible after recording of evidence. The case against accused required further inquiry.
22. The above writ petitions are allowed and the petitioners are admitted to bail subject to furnishing of their bail bonds in the sum of Rs, 20,000/- (Rupees twenty lacs only) with two solvent sureties each in the like amount to the satisfaction of Accountability Judge at Gilgit. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.