' ISHTIAQ IBRAHIM, J.---Sajahid Gul through this Constitutional petition, craves the indulgence of this Court for his release on bail on the ground of delay in conclusion of trial in Reference pending in the Accountability Court No,II, Peshawar.
2. Prior to the present Writ Petition, bail prayer of petitioner on merits was turned down by this Court vide order dated 16.4.2015 in Writ Petition No,745-P/2015.
3. Petitioner was arrested on 17.10.2014 in pursuance of Warrant of Arrest issued by the Director General, NAB (Khyber Pakhtunkhwa) on the charges of being operating illegal business under the garb of Mudaraba with the name and style of Galaxy Star Company deceiving public at large and despoiling them of their arduous earnings.
4. Learned counsel for the petitioner argued that he was arrested on 17.10.2014, whereas Reference was submitted on 15.1.2015 before the learned Administrative Judge. Petitioner along with others were formally indicted on 21.2.2015, when so far only thirty nine (39) PWs have been examined. The total number of prosecution witnesses are one hundred and four (104) while Sixty Five (65) witnesses are yet to be examined. Learned counsel further contended that delay has not been occasioned due to any act or omission on the part of petitioner or any person acting on his behalf.
He fortified his arguments by relying on the following judgments of august Apex Court and of this Court in the light of these cases, 2015 SCMR 1696, Civil Petitions Nos. 86, 134, 167, 179, 180, 181 of 2016 decided on 28.4.2016, Civil Petitions Nos. 3603 and 3604 of 2015 decided on 21.1.20,16, PLD 2016 Sindh 41, 2015 YLR Sindh 2016, PLD 2003 Karachi 292, 2005 SCMR 1666, 1999 PCr.LJ 948, PLD 2008 SC 645, PLD 2012 Sindh 261, 2002 SCMR 282, 1998 SCMR 190, PLD 1990 SC 934, 1990 SCMR 1045.
5. Repelling the arguments, learned D.P.G.., vehemently opposed the grant of bail to the petitioner on the premise that petitioner is charged for deceiving public at large and an amount of 522 Millions have been swindled by the petitioner along with others, has made a judicial confession before Judicial Magistrate. He also submitted that delay has not been occasioned due to any fault of prosecution. He lastly contended that the 3rd proviso of Section 497(1), Cr.P.C. Is not strictly attracted to the cases under NAO, 1999.
6. First we will advert to the applicability of 3rd proviso of Section 497(1), Cr.P.C. Third proviso was inserted for the first time in the year 1979 by Ordinance No, LXXI promulgated on 22nd December, 1979, which is reproduced as under:-- ORDINANCE LXXI OF 1979 CODE OF CRIMINAL PROCEDURE (SECOND AMENDMENT) ORDINANCE 1979 An Ordinance further to amend the Code of Criminal Procedure, 1898.
' (Gazette of Pakistan, Extraordinary, Part 1, 22nd December, 1979.
3. Amendment of section 497, Act V of 1898. ---In the said Code, in Section 497, in subsection (1) in the second proviso, for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely:- "Provided further that the Court shall, except where it is of opinion that the delay in trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail. -
(a) Who being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not commenced; or
(b) Who being accused of an offence punishable with death, has been detailed for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."
(PLD 1979 Central Statutes 19).
7. Prior to, this amendment there was no provision under the law to govern grant of bail on the ground of delay in conclusion of trials. The apex Court in cases of "Riasat Ali v. Ghulam Muhammad and others" (PLD 1968 SC 353) and thereafter in case of Ahrar Muhammad and others v. The State"
(PLD 1974 SC 224) and Seer Zaman v. Muhammad Azad and others" (1978 SCMR 248), allowed bail on the ground that delay in prosecution of case amounts to abuse of process of law and delay was considered to be a good ground for the grant of bail in offences which were even punishable with death sentence
8. The objection of learned DPG is over ruled to that extent, even this Court and the august apex Court has been entertaining petitions for bail under the National Accountability Ordinance on the ground of delay in conclusion of trial.
9. In this reference charge was framed on 21.2.2015. As per index of witnesses annexed with the Reference, total number of witnesses to be examined by the prosecution, are one hundred and four (104). From 21.2.2015 till date only 39 PWs have been examined within a space of almost 20 months.
By now Sixty Five (65) witnesses are yet to be examined and if the trial proceeds with such a pace, there is remote possibility of conclusion of trial in the near future. Guidance is sought from the judgments of the apex Court delivered in cases of "Himesh Khan v. National Accountability Bureau"
(2015 SCMR 1092), Muhammad Nadeem Anwar v. National Accountability Bureau" (PLD 2008 SC 645), Anwarul Haq Qureshi v. National Accountability Bureau" (2008 SCMR 1135) and Ch: Zulfiqar Ali v. The State" (PLD 2002 SC 546).
10. Needless to mention that heinousness of offence or embezzlement of huge amount would not be a good ground for refusal of bail on the ground of non-conclusion of case within statutory period. Section 16-A of the National Accountability Ordinance, circumscribe a limit for conclusion of trial within 30 days from its commencement.
11. For what has been discussed above, this Writ Petition is allowed, petitioner Sajahid Gul is admitted to bail provided he furnishes. Bail bonds to the tune of Rupees (20 Millions) with two sureties each in the like amount to the satisfaction of learned trial Court who shall ensure that the sureties are local, reliable and men of means. The petitioner shall surrender his Passport to the trial Court which shall be kept in safe custody till the conclusion of trial. The NAB authorities are directed to approach the Ministry of Interior for placing the name of petitioner on the Exit Control List.
' The above are reasons of our short order of even date.