This order shall dispose of following Writ Petitions seeking post-arrest bail:
1. W.P. No,161594 of 2018 titled "Abdul Hameed v. NAB and others"
2. W.P. No,171692 of 2018 titled "Muhammad Jameel Ahmad v. NAB and others"; and
3. W.P. No,160398 of 2018 titled "Fayyaz Ahmad Khan Ghauri v. NAB and others".
2. These writ petitions have been filed by the petitioners, who were convicted by the learned Special Judge, Accountability Court No,V, Lahore, vide judgment dated 22.12.2017 while deciding the Reference No,40 of 2013 and sentenced them to 7 years' R.I. with fine of Rs, 1,91,05,000/- each. The amount of fine was directed to be recovered as arrears of land revenue. They were also ceased to hold public office, if any, held by them and further they shall stand disqualified for a period of ten years to be reckoned from the date they are released after serving out their sentence for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any province. They were also not allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the Government for a period of 10 years from the date of conviction.
However, benefit under section 382-B of The Criminal Procedure Code, 1898 was extended in favour of the petitioners.
3. The petitioners filed appeals bearing Cr. A. No,153529 of 2018 titled "Abdul Hameed v. The State through NAB", Cr. A. No,151477 of 2018 titled "Muhammad Jameel Ahmad v. NAB and others" and Cr.
A. No,136240 of 2018 titled "Fayyaz Ahmad Khan v. NAB and others" against the said conviction which are still pending adjudication in this Court.
4. Learned counsel for the petitioners states that the petitioners were arrested in this matter in the year 2015, charge was framed against them on 17.06.2015. They faced agony of trial for many years and ultimately were convicted on 22.12.2017. They were arrested and are behind the bars since then.
Further stated that under section 32-B of NAB Ordinance the appeals of the petitioners were to be decided within a month. It is stated that now more than one year and about 4 months have passed but the appeals preferred by the petitioners have not been decided. Learned counsel states that petitioners were extended benefit of section 382-B, Cr.P.C. and reports dated 26.05.2018, 10.03.2018 and 16.05.2018 submitted by jail authorities indicate that they will be released in 2020, if fine paid.
The petitioners have already undergone 2/3rd of sentence awarded to them if remissions are added. It is stated that there is no likelihood of hearing of appeal of the petitioners in the near future and they apprehend that before their appeals are heard the petitioners may undergo whole sentence.
5. On the other hand, learned Special Prosecutor for NAB while controverting contentions made on behalf of the petitioners has vigorously opposed this petition by contending that they launched an illegal Housing Scheme in the name of Gulshan-e-Dost Muhammad Housing Scheme, Mega Road, Pattoki without approval of layout plan and issuance of NOC from the Tehsil Municipal Administration concerned and as such have rightly been convicted by the learned trial Judge.
6.We have heard learned counsel for the parties and have gone through the record. The petitioners have already undergone substantive portion of their conviction and sentence and it is also within our knowledge that appeals of the petitioners are not likely to be fixed in the near future. It was mandatory that the appeals of the petitioners be decided within a month and now more than one year and 4 months have passed but the appeals have not been decided. Keeping in view the fact that the petitioners have already undergone more than 2/3rd portion of their sentence and while considering that the appeals are not likely to be A heard in the near future and the petitioners have faced the agony of trial for about three years and while relying on the dictum laid by the apex Court in "Saeedullah Soomro and another v. The State through National Accountability Bureau"
(2004 SCM R 660) where the honourable Supreme Court observed under section 32(b) of The National Accountability Ordinance, 1999, held that the appeal of such petitioner should be decided within 30 days and lapse in such period entitles him for suspension of sentence, so keeping in view the above-said case law, the petitioners have made out a case for suspension of sentence. We are also guided by the judgment reported as "Makhdoom Javed Hashmi v. The State" (2008 SCM R 165).
We have also gone through the impugned judgment and have noticed that liabilities of the petitioners have not been determined by the learned trial court while recording judgment of conviction against them, which prima facie appears to be an irregularity/illegality. Besides, in paragraph No,28 of the judgment it was discussed that the petitioners were not the owners but had agreement to sell with the owners and the parties were already engaged in civil litigations and that the total land was 96 kanals, 8 marlas, nearing 100 kanals; a requirement to issue the NOC. Whether a contractual liability can possibly be equated with cheating public-at-large was not discussed, which also appears to be a legal infirmity in the judgment.
7. In view of above facts of law and circumstances, the writ petitions are accepted and sentence of the petitioners awarded to them in Reference No, 40 of 2013 through judgment dated 22.12.2017 is suspended. The petitioners be released on bail subject to their furnishing bail bonds in the sum of Rs,10,00,000/- (Rupees ten lac) each with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. The petitioners shall, however, remain present in this Court on all future dates of hearing either to be fixed by the Court -or by the Office in Criminal Appeals filed by them respectively.