KHADIM HUSSAIN TUNIO, J.---Present petitioner is one of the nominated accused in Crime No, 51 of 2014, under Sections 409, 467, 471, 477-A, 109, P.P.C. read with Section 5(2) PCA-II, 1947 [Prevention of Corruption Act, 1947 (II of 1947)] with the allegation that he along with other co-accused committed fraud and passed fraudulent vouchers on various dates. The petitioner was assigned specific role of aiding and abetting in the fraud schemes of accused Zubair Almani.
2. The allegations against the present petitioner is that huge deposits in the bank accounts of accused Zubair Almani were reported at HBL, Pano Akil and Frere Road, Branches Sukkur. Thereafter, inquiry was conducted after transfer of this matter from special court (Offence in Banks) to Accountability Court No,1, Karachi under section 16-A(a) of NAO, 1999 (National Accountability Bureau Ordinance, 1999). The main allegation is that accused Zubair Almani along with his colleagues and present petitioner were involved in embezzling various Government Accounts including account of Controller of Military Accounts on various occasions and such amount was credited through clearing process in the personal accounts of main accused Zubair Almani and others. Present petitioner was working on different intervals of time in NBP Pano Akil Brandi and was Branch Manager.
3. Learned counsel for the petitioner contends that the bail application of the petitioner had been dismissed by this Court on the ground that the learned counsel had not been able to make out a case for grant of bail to the accused; that the petitioner had been falsely implicated in the above NAB reference; that NAB authorities leveled serious allegations of purchasing properties from misappropriated property which is baseless and without substance; that there is no allegation of transfer of funds in the accounts of the petitioner from the embezzled money; that the petitioner has bought all the three properties with his own money and the same are not his share of fraudulent scheming; that he bought plot measuring 1986 sq. feet from accused Zubair Almani for a sum of Rs, 96,000/- on 29.11.2013, he bought plot measuring 1906 sq. ft situated in Survey No, 1352 D No, 407/1-2 in Deli Tapa Pano Akil for a sum of Rs, 100,000/-, and he bought the shop measuring 410 sq. ft. for a sum of 20,000/-; that the petitioner was granted loan of Rs, 9,50,000 as Motor Car loan on 29.02.2012, he was granted another loan of Rs, 1,000,000/- as house building finance and Rs, 90,000/- loan of computer finance; that there are sixteen accused in the reference, from which twelve have been granted bail and only two are in custody; that NAB has submitted a detailed investigation report showing accused Zubair Almani was operating 23 Bank accounts and he was distributing shares of misappropriated amount among the bank employees; that the petitioner is a disabled person and lost his leg in an incident in the year 2011 and he has remained in jail for over two years. He therefore prays for the grant of post arrest bail to the petitioner.
4. Learned special prosecutor NAB has vehemently opposed the bail plea of the petitioner while arguing that the present petition is not maintainable as bail plea of the petitioner has already been declined by this court as well as by the Hon'ble Apex Court. He has further submitted that the grounds, pressed in the present petition, were not pressed by the petitioner in the earlier petitions though same was available to the petitioner. He has also argued that trial has been concluded and statement of numerous accused persons has been recorded by the trial court. He has further submitted hat delay in conclusion of trial is on part of the petitioner and not on the part of prosecution. He has cited the case law reported as PLD 2014 SC 241, PLD 2016 SC 64, PLD 2015 SC 66, PLD 2016 SC 11 and 2013 SCM R 1059.
5. We have heard the arguments of the learned counsel for the parties and have gone through the record.
6. From the perusal of record, it contemplates that the order passed by this court has attained finality as same has not been impugned by the present petitioner before appropriate forum by exhausting proper remedy as provided under the law. Since, on this count the maintainability of instant petition has been questioned therefore, we feel it quite necessary to address this issue first.
There would be no denial to the legal position that provision of bail since was ,not included in the NAB Ordinance but application whereof has been through constitutional jurisdiction of the High Court. Since, no criterion is provided therefore, in such eventuality the guidelines, so provided by the law laid down by the Apex Court, shall be followed. Thus, a bail plea in such like cases would be subject to bringing the same within meaning of 'arguable/further inquiry'. Needless to add that even maintainability of bail plea through Constitution petition would also be subject to principles, so enunciated by Apex Court, for maintaining a bail plea under Section 497, Cr.P.C. Reference may be made to the case of Himesh Khan V. NAB Lahore and others 2015 SCM R 1092 wherein it is held as:
8. True that the statutory law on the subject under the National Accountability Ordinance, 1999 does not recognize the grant of bail to accused persons facing charges under the said law, however, in the case of Khan Asfandvar Wali v. Federation of Pakistan through Cabinet Division (PLD 2001 SC 607) the Supreme Court has devised a strategy for granting bail to such accused persons through constitutional jurisdiction of the High/ Court, provided their cases are arguable for the purpose of grant of bail.
7. In the case of Nazir Ahmed v. State (PLD 2014 SC 241), certain principles were enunciated categorically which includes (iii) and (iv) which read as:- iii) Dismissal of an application for bail after attending to the merits of the case amounts to rejection of all the grounds available or in existence till the time of such dismissal whether such grounds were actually taken or urged or not and whether such grounds were expressly dealt with in the order of dismissal or not; iv) In case of dismissal of an earlier application for bail on the merits of the case a subsequent application for the same relief can be filed and entertained only if it is based upon a fresh ground, i,e, a ground which was not available or in existence at the time of decision' of the earlier application."
We would say that since, above principles have categorically been made applicable for an application for bail therefore, same would be applicable even if the bail is being sought through Constitution Petition.
Now, we would proceed further. The perusal of the record shows that the plot, house and shop purchased by present petitioner from co-accused Zubair Ali Almani through registered sale deeds are prior to filing of the reference by the NAB authorities against present petitioner and co- accused. Thus, this plea was very much available to the petitioner at time of the dismissal of his request for bail, made through Constitutional -Petitioner, but surprisingly, the petitioner did not take such plea either in the earlier constitution petitions for grant of anticipatory bail or post arrest bail and even no suggestion has been put forth to the PWs by the petitioner's counsel during their cross-examination per counsel while replying on query of the court. Thus, legally it would be presumed that such plea was not only taken but had been entertained and rejected at time of earlier dismissal of bail plea of the petitioner.
8. The petition for bail of the petitioner has already been dismissed on merits by this court vide order dated 19.06.2017,, relevant paragraph of which reads as under; "Insofar as case of petitioner Nusrat Hussain Shah in C.P. No,5058 of 2016 is concerned, his role appears to be of somewhat different from the rest of the petitioners, as stated hereinabove, as allegations against him is to the effect that he abetted co-accused No,1 Zubair All Almani in this mega fraud, whereas, in the investigation report it has come on record that there are various properties which were purchased by him and even main accused has given a statement that a plot was given to this accused by him as a share of misappropriated money. Record reflects that this accused has been directly benefited from the fraud in this matter; and therefore his role is different as compared to other petitioner against whom there is no material to suggest that they were beneficiaries in this mega fraud. Therefore, this petitioner's case is an exception and cannot be treated as a case of whom benefit of rule of consistency can be applied. Learned counsel has not been able to satisfy us to make out a case for grant of bail to this accused."
9. In the case of "The State through Advocate General, N.W.F.P. v. Zubair and 4 others" (PLD 1986 SC 173) it has been held by the Hon'ble Apex Court that the grounds which were available at the time of earlier bail application shall be deemed to have been considered and second bail application can only be filed on fresh grounds. The relevant para is reproduced herein below; "It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of an merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him. It may be pointed out, with great respect that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived. We are of the view that in the present, case the learned Judge who dealt with the second bail application had, in fact embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application."
10. Similar view has been taken by the Hon'ble Apex Court in case of Nazeer Ahmed and another supra.
11. Further, the trial has already been concluded, prosecution closed its side and statement of accused has already been recorded by the trial Court per learned Special Prosecutor for NAB.
12. As the result of above discussion, petitioner Nusrat Hussain Shah has miserably failed to make out his case for grant of post-arrest bail as bail plea has already been declined by this court as well as by the Hon'ble Apex Court. Therefore, petition is dismissed having no merit. It is needless to mention here that this order being tentative in nature shall not prejudice the mind of learned trial Court.