MIAN ALLAH NAWAZ, C.J.--Two batches of Constitutional petitions will-be dealt with by this judgment. First batch comprises four Petitions bearing Nos. 1187,. 1188, 1189 and 1190 all of 2000. Four remaining Petitions Nos. 1651, 1652, 1653 and 1654 all of 2000, form the second batch. All these petitions have been filed by Anwar Saifullah Khan under Article 199 of the Constitution of Pakistan, 1973. The first batch arises out of a consolidated order dated 19-1-2000 passed by Accountability Court/disposing of four civil miscellaneous applications filed in four Ehtesab References of 1999.
The aforesaid applications were moved for grant of post-- arrest bail respectively. These applications were rejected by the Court on the premises that it had no jurisdiction to release the petitioner on bail. The second batch arises out of another order passed by the Accountability Court dated 19-1-2000 dealing with four separate applications in four Ehtesab References. These applications were filed under section 265-K, Cr.P.C. and were directed to seek quashment of the References. These applications also failed with the finding that these were premature, learned counsel for the petitioner focused his energies on first batch of the petitions. No comprehensive arguments were advanced with regard to the second batch.
2. Facts, briefly stated, giving rise to Writ Petitions Nos. 1187, 1188, 1189 and 1190 all of 2000 are as follows: Anwar Saifullah Khan/petitioner was Senator in the year 1994. He became Minister for Petroleum and Natural Resources. On the fall of Government, a Reference No.6 of 1997 was filed before the Ehtesab Court. Subsequently, the prosecution chose to file four References Nos. 6-A, 6-B, 6-C and 6-D in place of Reference No. 6 of 1997. On 3-3-1997, Ehtesab Bench issued bailable warrants in the sum of Rs.50,000 with two sureties each in the like amount returnable to District Magistrate, Laki Murwat for appearance of Anwar Saifullah Khan. Pursuant to this order, he appeared on 17-3-2000 and was directed to furnish bail bonds for his appearance in the Court in the sum of Rs.5,00,000 with two sureties each in the like amount to the satisfaction of the Registrar of that Court. Similar orders were passed in other References. The aforesaid bail was extended by the said Court till 27-12-1999 when the petitioner was arrested in Reference No.4-D and was shown to have been arrested in all other References. In Reference No.4-D, the petitioner was accused of giving a contract of Dry Hole Analysis Study on the Wells to be drilled between July, 1991 and January 1994 to Hydro Development Institute of Pakistan (briefly HDIP) jointly with M/s. Improved Petroleum Recovery International Limited of Dallas (briefly, IPR). This contract was given by the Minister/petitioner without consulting OGDC and, thus, by this act, the petitioner caused a loss of 3,93,526 Dollars to OGDC. Actually, the company was owned by Saifullah family and was being managed by his former employees. According to the Reference. neither the study was necessary nor it was carried out within the terms of report of OGDC's professionals and was wholly without any lawful authority. In this Reference, it was stated that petitioner had caused a loss of Rs.10,955,725 to OGDC in the following manner:-- Total Receipt In Pak. Rs. In US Doll HDIP Rs.3,737,597 100% NIL IPR Rs.7,218,127 35% 65% Total: Rs.10,955,725 57.2% 42% 3.The Second Petition No. 1188 of 2000 arises out of Ehtesab References Nos.6-C of 1997 and 4-C of 1999. Material facts of this Reference are: that the petitioner, in connivance with Riffat Askri, ex-- Chairman of OGDC during the year 1994-95, abused his authority and dishonestly allocated/allowed sale of 2298.55 metric tonnes scrap in favour of his blue-eyed persons in follow order:--
1. M/s. W azeer Ahmad, Laiah 144.075 M. Tonnes 2.M/s. Riaz & Sons, Rawalpindi 413.300 -do-- 3.M/s. Mirani International, Laiah 220.834 -do-- 4.M/s. SKM Enterprises IBA. 53.861 -do-- 5.Mr. Muhammad Aslam, Attock. 49.781 -do-- 6.Mr. Haji Muhamamd Rafique & Sons. 200.587 -do-- 7.Mr. M. W asiq Ahmad, Attock 50.340 -do-- 8.M/s. Allies Commerce International 77.462 -do- The total loss caused to OGDC is as under: Total quantity sold 2298.555 M. Tonnes Public auction rates per ton. Rs.38,084.50 Average rate per ton in allocation Rs.9,180.00 Difference per ton Rs.28,904.50 Approximate loss to OGDC: 2298.555 (M.Tonnes) x Rs.28,904:50 = Rs.66,438,583 + Rs.1,467,578 + Rs.67,906,161.
Petitioner was so accused of having caused loss of Rs.67,906,161.
4. Petition No. 1189 of 2000 arises out of Reference No. 4-A of 1999. It relates to misuse of official Aircraft of OGDC by the Minister/petitioner. According to this, the petitioner caused loss to OGDC and gain to himself in the following terms:-- Period Flying Hours Amount 02-02-1994 to 31-03-1996 179.40 Hours @ 25,000 per Hour Rs.4,491,667.00 01/04/1996 to 4-1 1-1996 054.00 Hous @36,000 per Hour Rs.1,1944,000
5. Petition No. 1190 emanates from Reference No. 6-1) of 1999. It was alleged therein that Mr. Saifullah, by misuse of his authority and in collusion with his staff, appointed 145 persons in the Department of OGDC. Writ Petition No.1653 of 2000 originates from Reference No.6-B of 1997/Reference No.4-B of 1999.
6. The petitioner moved two miscellaneous applications in the each Reference/one was filed under section 497/498, Cr.P.C. read with section 12 of the Ehtesab Act, 1997 (IX of 1997) for grant of post- arrest bail, while the second application was moved under section 265-K of Cr.P.C. for the purpose of seeking quashment of the References, respectively. The applications for grant of post-arrest bail were dealt with by the learned Accountability Court on 19-1-2000 and were rejected on the basis of the lack of jurisdiction. The order was passed in the following terms:-- "I have given anxious consideration to the arguments advanced by the learned Prosecutor as well as by the learned defence counsel. The power to grant bail to an accused person is not available to this Court as - it has been specifically mentioned in section 9(b) of the NAB Ordinance, 1999.
Under section 24(c) of the NAB Ordinance the Chairman, NAB has been empowered to arrest an accused even in cases which have already been referred to this Court, therefore, the arrest of the accused in pending cases cannot be said to be without lawful authority. Under the present law this Court lacks the power to grant bail to an accused person. Therefore, I have no option but. to follow the law and refuse to allow concession of bail to the accused. The order of the Ehtesab Bench of Lahore High Court, Lahore dated 15-11-1999 was in the field when this reference was received in this Court. I do not consider it within my domain to determine the question of violation of the order of the Ehtesab Bench of the Lahore High Court, Lahore. The petitioner/accused may agitate the same before a competent forum if so advised.
3. As a result of above discussion, I decline to release the petitioner on bail. "
7. The second batch of petitions arises out of an order passed in four applications under section 265-K, Cr.P.C./seeking acquittal in all the four References Nos.4-A, 4-B, 4-C and 4-D of 1999 and were dismissed by the learned Accountability Court on 19-1-2000 in following terms: "I have considered the arguments put forth by both the learned prosecutors as well as by the learned Defence Counsel. There can be no cavil with the proposition that the statute later in time always prevails and the previous proceedings remain alive only it specifically intended by the new enactment. The proceedings against the accused in all the four cases were pending adjudication which have gained a new life with the promulgation of NAB Ordinance, 1999. The facts of each case if examined in the light of the latest law, do disclose the commission of offence triable by the Court.
7. Now I proceed to consider the facts in A.C. Reference No.4-A of 1999 (E.R.No.6-A/97 LHC). The respondent/accused is alleged to have misused the aircraft of OGDC during the period from 2-2- 1994 to 4-11-1996. He is thereby alleged to have caused a loss of Rs.64,35,667 to the Government Exchequer. Learned defence counsel contended that the respondent/accused being a Federal Minister was entitled to use the aircraft and that the only prosecution witness of this case Capt.
Muhammad Abid the Chief Pilot had contradicted the allegations in subsequent proceedings related to his services by stating that he had been forced to make a statement against the accused. Even if it is accepted for a moment that the star witness of this has made contradictory statement, it is yet to be ascertained as to which of the statement is correct. The use of aircraft has not been denied by the accused. The case is being reinvestigated by Mr. Gulzar Ahmad Chughtai, Deputy Director, F.I.A. who stated that he had collected the tour programme and other record relevant to the charges. A perusal of the record shows that the accused/respondent used the aircraft while going to Peshawar, Lahore, Quetta and Faisalabad from Islamabad. Ordinarily, he could have travelled by PIA. The accused has to justify that the use of aircraft was made by him in public interest. Therefore, prima facie the allegation of misuse of aircraft does not appear to be unfounded.
8. The allegations in A.C. Reference No.4-B (E.R. No.6-B/97 LHC) is that the accused/respondent while holding Public Office as Minister could undue. favour to 145 persons by getting them employed in OGDC in violation of the recruitement rules. Learned counsel for the accused described the allegations as factually incorrect. He maintained that only 27 persons were recruited by the OGDC and that too strictly in accordance with law, as such the proceedings against the accused are liable to be terminated. The learned prosecutor did not deny the recruitment of 27 persons. However, he maintained that despite resistance shown by the competent officers of the OGDC appointment letters were issued to 145 persons on the recommendations of the accused/respondent in relaxation of recruitment rules. The mere fact that only 27 persons out of 145 joined the service does not mean that the allegations are baseless. Admittedly the OGDC was the appointing authority. and that the accused/respondent was not required to pass orders in individual cases and that too in relaxation of recruitment rules. The facts of the case do prima facie show that the accused abused his authority.
9. A.C. Reference No.4-C of 1999 (E.R. No.6-C/97 LHC) relates to the disposal of scrap to certain persons/firms in violation of the procedure prescribed by the OGDC itself. The learned defence counsel contended that the accused had simply forwarded certain applications to the OGDC for the consideration. It was for the officers of the OGDC to deal with those applications in accordance with the rules. It is submitted that there is nothing on the record to suggest that the accused compelled the OGDC Officers to sell the scrap to those applicants in violation of prescribed procedure. The learned prosecutor has taken me through a number of applications bearing the recommendations as well as allocations of certain quantities of scrap made by the accused.
Ordinarily a Minister is not supposed to entertain such applications, therefore, the disposal of the scrap by the OGDC otherwise than in due course show that the allegation is not unfounded and there is sufficient material to proceed against the accused.
10. In A.C. Reference No.4-D of 1999 (E.R. No.6-D/97 LHC) the allegation against the accused is that he granted approval to the contract for Dry Hole Study as per of OGDC Explanation Programme. It is alleged that the Dry Hole analysis study was taken up by the HDIP jointly that M/s. IPR-USA which was previously owned by Saifuilah family and at the relevant time it was managed by former employee of Saifullah International. This state proves to be a flare and it did not produce satisfactory results causing loss to US $395526 to' the Government Exchequer. Learned defence counsellor the accused submitted that the accused has absolutely no concern with the firm at the relevant time and that his previous contact with IPR-USA cannot be made basis for implicating him in this case. The accused has not denied his association with M/s. IPR--USA. It is alleged that approved proposal on the same day that is 13-6-1994 without seeking advice/clarification from OGDC. The allegations do not appear to be baseless.
11. As a result of the above discussion, all the four applications merit dismissal."
This is how these eight Constitution petitions have come to this Court.
8. The learned counsel for the parties argued at length. Mr. Zahid Hamid, the learned counsel for the petitioner, inter alia, contended: firstly, that prohibition embodied in section 9(b) of the National Accountability Bureau Ordinance, 1999 did not oust the jurisdiction of this Court under Article 199 to grant post/pre-arrest bail to the accused. According to learned counsel the ouster of jurisdiction of superior Courts was not to be readily inferred. Reference was made to Mir Abdul Baqi Baluch v. The Government of Pakistan and others PLD 1968 SC 313, Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66, Zahoor Ilahi, M.N.A. v. The State 1975 PCr.LJ 1413, Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273, Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 and The State v.
Syed Qaim Ali Shah 1992 SCMR 2192. Secondly, that the petitioner had earlier been allowed bail by Ehtesab Bench; that he never abused that concession and appeared before the Bench without fail.
On the strength of the above circumstances, it was contended that the learned Accountability Court erred in law in refusing the concession of post-arrest bail to him. Reliance was placed on Ch. Abdul Malik v. The State PLD 1968 SC 349, The State v. Syed Qaim Ali Shah 1992 SCMR 2192, Government of Sindh v. Raeesa Farooq 1994 SCMR 1283, Ch. Shujaat Hussain v. The State 1995 SCMR 1249 and Tariq Bashir v. The State PLD 1995 SC 34. Continuing his arguments, the learned counsel stated that the petitioner was prepared to deposit cash security to the tune of Rs.10 million (one crore rupees). Thirdly, that the proceedings under Ehtesab Act, 1997 were transferred to the Accountability Court under the N.A.B. Ordinance; that the matter was reinvestigated and so the case of the petitioner was to be tried in accordance with procedure laid down in the Ehtesab Act, 1997. Help was sought from Adrian Afzal v. Capt. Sher Afzal PLD 1969 SC 187, Malik Gul Hassan & Company v. Allied Bank of Pakistan 1996 SCMR 237, Hakim Ali Zardari v. The State PLD 1998 SC 1.
9. Mr. Sher Zaman Khan, learned Deputy Attorney-General, defended the impugned order.
According to him, the grant of bail was alien to legislative scheme in the N.A.B. Ordinance No.XVIII of 1999. He referred to sections 9(b), 9(c) and 9(d) (ibid) to contend that the Court, including a High Court, had no jurisdiction, whatsoever, to grant post-arrest bail to the petitioner. He banked upon section 9(c) of the Ordinance to stress that it was only the Chairman, N.A.B., who had/has the power to release any accused from the custody or detention and he was also required to do so after considering the gravity of charge against; that he is to ensure that the persons will not be released on bail unless the amount due against them was/is deposited with N.A.B. He also referred to section 25 of the Ordinance, which contains the plea of bargaining.
10. From the foregoing the only two issues/questions which arise for consideration are as follows:-- (1)Whether on the facts and circumstances of cases in hand, this Court lacks jurisdiction to grant post-arrest bail to the petitioner?
(2)If not so, on what terms and conditions, Anwar Saifullah is entitled to grant of after-arrest bail? - With regard to first issue/core issue, we are tempted to 'seek guidance from the celebrated case of Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273. In this case Ch.. Zahur Ilahi, an opposition M.N.A. was arrested on 6-2-1976 by the Punjab Police in a case under section 302, P.P.C. On 12-2-1976, he was allowed bail. Regardless of it, he was arrested by Karachi Police on the next day in a case registered under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960 and so was whisked away to Karachi. On 23-2-1976, the learned Additional Sessions Judge, Karachi allowed him bail in the said case. Soon thereafter two more cases were registered against him on 14-2-1976 under Rule 42(6)(e) read with Rule 49 of the Defence of Pakistan Rules, 1971. On 11-3-1976 he moved an application in the Sindh High Court for his pre-trial release in the above cases. His application failed on account of finding of the Courts on the issue of jurisdiction. Ch. Zahur Ilahi moved an application to the Special Tribunal but in vain. Thereafter he again approached the High Court of Sindh. The learned Single Judge of Sindh High Court rejected his application on 17-3-1976 with a finding that the Court had no jurisdiction under the Defence of Pakistan Ordinance, 1960 and Rules 42 and 49 of the Defence of Pakistan Rules, 1971 to grant him post-arrest bail. In these circumstances, the matter came before the Hon'ble Supreme Court.
11. The majority of the Court, on the survey of the relevant law and precedent, came to the conclusion that notwithstanding non obstante clause of the Defence of Pakistan Rules (ibid), the High Court possessed power to grant him post-arrest bail. He was, therefore, directed to be released on bail in the sum of Rs.5,000 in each case with one surety in the like amount to the satisfaction of the Registrar of the High Court of Sindh and Balochistan. Salah-ud-Din Ahmad, J. rendered his leading opinion. He examined the relevant law of pre-partition and post-partition decisions of superior judiciary and came to the conclusion that the superior Courts had power -to order pre-trial release of Ch. Zahur Ilahi. It will be useful to reproduce an extract of the judgment at page 320 of the report:-- "In a, matter like this, therefore, section 16 of the Ordinance does not stand in the way of High Court to examine under section 561-A of the Code of Criminal Procedure the question of lack of bona fides or misuse of the powers. This inherent power of the High Court is very important and it is significant that section 13 of the Ordinance makes no mention of the section 561-A of the Code of Criminal Procedure. This omission is to be considered in the light of the fact that under section 14. of the Ordinance, the jurisdiction of the ordinary criminal and civil Courts has been preserved except as may be provided otherwise in the Ordinance or in any rules made thereunder, etc. Whether section 13 of the Ordinance has ousted the jurisdiction of the High Court, and if so, how for will be discussed hereafter.
The High Court unquestionably has this power under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter called the Constitution) and it should have exercised this jurisdiction when the question of the liberty of the citizen was involved even though the Court had before it the application under section 498 of the Code of Criminal Procedure only. I held this view in the case of Manzoor Elahi v. Federation of Pakistan, I still adhere to and see no reason to depart from it. I had observed thus: 'When the liberty of a person is involved a High Court can exercise its jurisdiction under Article 199 of the Constitution and grant him relief even though he has misconceived his remedy and came up with an application under sections 498 and 561-A of the Code of Criminal Procedure.'
Being the repository of such jurisdiction and power no technicality should have stood in the way of using them for safeguarding the liberty of a citizen. Rule of law guaranteed to the people in the Constitution would indeed be Illusory if mere technicalities are to stand in the way of enforciqg it.
As may have been noticed above, the High Court already had before it Constitution petitions of the petitioner for the same relief. There was, therefore, no difficulty on the part of the High Court to have heard these petitions alongwith the bail applications and to have given the necessary relief to the petitioner. "
The learned Judge went on to add: "Considered from any angle I think if the learned Single Judge of the High Court had gone a. little deeper into the matter, he would have allowed bail to the petitioner in both the cases. Similarly if the Special Tribunal itself had bestowed the attention to the cases deserved, it might have considered the petitioner's application for bail favourably. None better than the Special Tribunal itself should have known its limitations regarding the early disposal of the cases. As it is the petitioner has been in continuous custody of the police or in the jail since 6th of February, 1976.
The conclusions I have arrived may be summed up as follows:-- (i)Section 13 of the Ordinance does not oust the jurisdiction of the High Court to grant bail under section 498 of the Code of Criminal Procedure in a case exclusively triable by a Special Tribunal.
(ii)The section also does not affect the jurisdiction of the High Court under section 561-A of the Code of Criminal Procedure to intervene in a case of abuse of power of Court, or misuse of power under the Ordinance or the Rules.
I, therefore, hold that the High Court had the power to release and should have released the petitioner on bail."
His lordship Justice Muhammad Akram, another celebrated member of this Bench appended his separate note. Having lucidly dealt with the aforesaid issue he concluded as under:-- "In these cases before us a learned Judge of the Sindh and Balochistan High Court, karachi seat dismissed the two applications moved by the petitioner under Rule 210 of the Defence of Pakistan Rules, 1971, read with section 498 of the Code for bail as incompetent without going into the merits and simply followed the decision by a Division Bench of that Court in the unreported case of Yasin v. State (Crl. B.A.. No. 101 of 1974), decided on 17-5-1974. In that case, the Division Bench after noting the reported cases of Elahi Bakhsh Soomro v. State, State v. Habib Jalib and Muhammad Ismail v.
State laid down the test and observed:-- 'In all these cases, the test laid down is whether as a consequence of the reference, the case was taken outside the ordinary judicial field. The ratio is that once a case is competently withdrawn from the general system of the Code of Criminal Procedure -and validly remitted to the Court or Tribunal of special jurisdiction, the contact of the Court of general jurisdiction with the said case ceases; in such cases the Special Court or Special 'tribunal is no longer under the control or supervision of the Court of general jurisdiction by virtue of powers under the Code of Criminal Procedure.' and relied on Muhammad v. The State for the proposition. I have already distinguished the last- mentioned case on which reliance was placed by the Division Bench. In distinguishing that case I have held that the analogy does not apply to the Special Tribunal constituted under the Defence of Pakistan Ordinance and the test laid down by the Division Bench is not applicable to this cage and does not serve as a safe guide to cases arising under the Defence of Pakistan Ordinance and the rules made thereunder. For the foregoing reason, I am of the opinion that the High Court was not justified in dismissing the two bail applications made by the petitioner as incompetent without entering upon their merits and thereby the High Court failed to exercise the jurisdiction vested in it."
The remaining two members of the Bench, Mr. Justice Gul Muhammad and Mr. Justice Afzal Cheema (as they then were) although recorded their separate note; yet they agreed with the conclusion of Salah-ud--Din Ahmad and Muhammad Akram, JJ. and differed with the view taken by his Lordship Justice Yaqoob Ali Khan, the then Chief Justice of Pakistan.
12. The rule enunciated in Ch. Zahur Ilahi case (surpa) was followed by the Hon'ble Supreme Court in the case of Allied Bank of Pakistan Ltd. v. Khalid FarooQ 1991 SCMR 599. In this case Khalid Farooq/respondent had been maintaining two accounts with Allied Bank of Pakistan Limited Kutchery Bazar Branch, Sargodha. On 31-1-1981 a case was resistered against him under sections 409, 468, 477-A, P.P.C. and section 5(2) of P.C.A. He applied for pre-arrest bail which was allowed by the learned Sessions Judge, Sargodha on 18-2-1981. Thereafter, the case was sent to Martial Law Court for trial. Resultantly, Khalid Farooq was arrested on 24-11-1982. With the enforcement of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, the case was transferred to the Special Court for trial. He applied for grant of bail which was refused on 9-6-1984. Thereafter, he moved the High Court of Lahore for grant of bail, which was allowed by the learned Division Bench on 24-10-1984 with a finding that Khalid Farooq was on bail as granted by the learned Sessions Judge, Sargodha and, therefore, he could not have been arrested. In these circumstances, the Bank went to the apex Court. The appeal was accepted, the order of the High Court was set aside and the case was remanded to the learned Division Bench of High Court for a fresh decision of application moved by Khalid Farooq. Dealing with the question of jurisdiction of the High Court, it was held as under:-- "With regard to the question of ouster of power, it is recognized principle of law that a claim in respect of the ouster of power of the High Court in respect of any matter or subject available to it under the Code of Civil or Criminal Procedure cannot be lightly accepted, unless there is a clear, definite and positive provision ousting the jurisdiction. Express words or clear intendment or necessary implication are required to take away the jurisdiction of a High Court or any superior Court. In Zahoor Elahi v. The State PLD--1977 SC 273, this Court has held that it is a well-settled principle relating to the construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred, that there is a strong leaning against any such exclusion, that this rule is deep-seated and if it is to be over-turned, it must ordinarily be done by a clear, definite or positive provision, not left to mere implication. In this case, the Supreme Court was considering the effect of section 13(1) of the Defence of Pakistan Ordinance of 1971 and rule 210 of the Rules framed thereunder and held that the High Court's jurisdiction to admit to bail persons under section 498 of the Code was not ousted. There are other cases as well, which need not be referred; it being sufficient to state the principle. "
The above rule, was reiterated in the case of Government of Sindh through the Chief Secretary, Karachi v. Raeesa Farooq and 5 others 1994 SCMR 1283. Applying the above propositions of law to facts and circumstances of the cases in hand, we are left with no doubt that this Court has jurisdiction under Article 199 of the Constitution to grant after-arrest bail to Mr. Saifullah.
13. It is true that under section 9(b) all offences under the National Accountability Bureau Ordinance (XVIII of 1999) (briefly referred to as the Ordinance) are non-bailable and it has been stated that notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court including the High Court shall have jurisdiction to grant bail to any person accused of such offences: It is also true that Chairman, National Accountability Bureau has been empowered under subsection (c) of section 9 A (ibid) to release any accused from its custody/detention after considering the gravity of the charge against such person and where the accusation specifies any amount in, respect of which the offence is alleged to have been committed, after the payment of such amount. The underlying objectives of this Ordinance in the words of Preamble is "to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matter .connected and ancillary or incidental thereto". The supreme purpose of 'this legislation is to effect recovery of defaulted amounts of lending institutions, money or gains, obtained through corrupt practices, misuse or abuse of powers, kickbacks, commissions and other like amounts. In Mrs. Shahida Faisal v. Federation of Pakistan etc. (W.P. No.739 of 2000=PLD 2000 Lahore 508) the Full Bench of this Court has held that the powers conferred upon the Chairman, National Accountability Bureau are Draconian in nature, nevertheless these are not incommensurate with the ground realities obtaining in our cherished State. The Full Bench has further held that the Ordinance is a subordinate legislation and this Court had jurisdiction to review, examine and strike down any act or omission of the National Accountability Bureau as A well as that of the Accountability Court if such act or omission is without jurisdiction, in excess of jurisdiction, or is in defiance of patent provisions of law or tainted with mala fides, In this view of the matter, .we have no difficulty in holding that this Court has jurisdiction under Article 199 of the Constitution (1973) to grant bail to4he petitioner.
14. Coming to Issue No.2, we find it necessary to say a few words about the concept of bail.
Conceptually, 'bail' means to procure release of one charged with an offence by ensuring his future appearance in Court and. compelling him to remain within the hands of the Court through sureties.
The person, who is released on bail is known 'principal' while the person who gives security is known as 'surety'. The security, to be furnished, may be in the form of bond or cash. The criminal administration of justice has I inherited this concept from times immemorial. During the era of the I Normans Rule in England, the whole community gave security for the appearance of an accused before the Court of trial. The community was treated as a property and served as a surety. This concept vanished with the 8 march of time and in its place the security of a third person was substituted. The concept of pre-trial release of the accused was developed on three presumptions: firstly, the accused was presumed to be innocent till he was found guilty; secondly, the accused should have a right to prepare his defence and prove his innocence before the Court of trial; and thirdly, the accused should not be punished before the finding of his conviction was rendered by the Court. These rules were developed by the contribution of Jurists and Courts. There was/is a judicial consensus that a Court has no authority under sections 497 and 498 read with sections 513 and 514 of the Code of Criminal Procedure to ask the accused to furnish cash security. However, various approaches to this issue were adopted in different countries in consonance with the ground realities faced by them. A Division Bench of this Court had an occasion to examine this issue in the context of the Ehtesab Act, 1997 (IX of 1997). While dealing with this aspect, the Division Bench held in the case of the State v. Muhammad Hasham Babar PLD 1997 Lah. 605 as under: "6. Forgoing rule, in the context of new dispensation, does not conclude the issue. We are accordingly tempted to examine the various forms of security in bails system of other countries.
We are attracted to examine specially the Illinois Laws of bail. Article 110 of the Code of 1963 is pertinent. It shows that the accused can secure his pretrial release in following manner:--
(1) Under 110-2 he may be released on his personal recognizance.
(2)Under 110-7 he may execute a bail bond and deposit with the clerk, cash equal to only 10% of the bail or $25, whichever is the greater. When bail is made in this way and the conditions of the bond have been performed, the clerk returns to the accused 90% of the sum deposited. The remaining 10% (1 % of the bail) is retained by the clerk ' as bail bond costs'.
(3)Under 110-8 he may execute a bail bond and secure it by a deposit with the clerk of the full amount of the bail in cash, or in stocks and bonds authorised for trust .funds in Illinois, or by unencumbered non-exempt Illinois real worth double the amount of the bail. When bail is made in this way and the conditions of the bond have been performed, the clerk returns the deposit of cash or stocks or bonds, or releases the real estate, as the case may be, without charge of retention of any amount."
In each case bail is 'fixed by a judicial officer. Article 110-5 prescribes factors to be considered in fixing the amount of bail. Under 110-6 either the State or the defendant may apply to the Court for an increase or for a reduction in the amount of bail or for alteration of the bond's conditions. The choice between 110-7 and 110-8 is reserved to the accused". The aforesaid methodology of cash security was challenged by one Schilb on Constitution grounds, in case Schilb v. Kuebel (Supreme Court of the United States (1971) 404 U.S. 357, 92 S.Ct.479, 30 L. Ed.2d. 502). In this case "Jhon Schilb, the petitioner, was arrested and charged with (a) leaving the scene of an automobile accident, and (b) obstructing traffic. Bail was fixed at $500 of the first charge and at $250 on the second charge. In accordance with the Illinois bail statutes of 1963, petitioner deposited $75 in cash with the clerk of the Court. This amount was 10 per cent. of aggregate bail. At his trial, Schilb was acquitted of the first charge and convicted of the second. When he paid his fine, the amount petitioner deposited was returned to him less $7.50 retained as "bail bond costs" pursuant to the bail statute. The amount returned was '1 per cent. of the total bail and 10 per cent. of the amount actually deposited. In a subsequent class action, Schilb challenged the Illinois bail system on Fourteenth Amendment due process and equal protection grounds. The circuit Court of St. Clair County upheld the statute and dismissed the complaint. The Supreme Court of Illinois affirmed, with two justices dissenting. Schilb appealed to the United States Supreme Court".
The United States Supreme Court rejected this challenge and found that system of cash security was not constitutionally invalid. The same rule is found in:
(1) Manning v. State 190 Okla 65, 120 P 2d 980.
(2) Re Wright, 228 NC 584 SE 2d 296.
The popular meaning of "Bail" is simply the security given for the due appearance of a prisoner to obtain his release from imprisonment, and in this sense it can mean either cash or bond. Sawyer v.
Barbour 142 Cal. App. 2d 827, 300 P2d 187.
(3) State v. Langford, 223 SC 20 73, SE 2d 854.
(4) Bottom v. People, 63 Code 114, 164, P.697.
(5) Isbell v. Bay County Circuit Judge, 215 Mich 364, 183 NW 721, 16 ALR 971.
(6) Scarboro v. State, 207 Ga 449, 62 SE 2d 168.
(7) Wilson v. Justice's Court of San Diego Twp.22 Cal. App.2d 278, 70 P2d 695.
(8) Snyder v. Gross, 69 Neb. 340, 95 NW 636.
(9) Campbell v. Reno County, 97 Kan 68 164 P.257; Re Henderson, 27 ND 155, 145 NW 574 Ahsmuhs v.
Bowyers, 39 Okla 376, 135 P.41,3.
(10) Young v. Stoutamire, 131 Fla 535 m 179 So 797.
(11) Young v. Stoutamire (supra) Clerks of Court as Custodians of cash bail, see Clerks of Courts (1st 3d Sec. 15).
7. Of course the system of criminal administration of justice in United States is essentially based upon Anglo-Saxon Jurisprudence and Common Law of England. However, the Legislature, in the said country, had enacted various laws to provide cash security in the context of their peculiar and local conditions flowing from their socio-economic conditions. The question for consideration is whether we can seek help from the above systems? Has this Court any power in the context of Ehtesab Ordinance, to ask for cash security? It is common between the accused and prosecution that Ordinance is a special legislative measure designed to eradicate corruption/corrupt practices and punish the perpetrators of such offence falling to domain of white collared crime.
The Bench further held in para. 11 of the judgment as under:-- "11. A plain reading of the above provisions show that form of securities enjoined under section 513/514, Cr.P.C. is not applicable in the new dispensation and Court has inherent jurisdiction to evolve its own procedure for securities. In this new dispensation it has been clearly stated that the grant of bail in offences committed under this Ordinance shall not be a rule but an exception; that the Court shall have a right to grant bail if it finds that there are more reasonable grounds to believe that the accused had committed the offence although tentatively. The object of this Legislation is to weed out corruption and see that ill-gotten wealth/money is recovered from such wrong-doers. The Court even has been granted powers to freeze the property of the accused at any time before or during the trial. Taking the above factors into consideration, we are inclined to hold that the area of asking security from the, accused who is allowed bail is vacant and this Court is not enjoined under the law to mathematically follow the systems of securities provided in the Code of Criminal Procedure. Bearing in mind the above factors we applied the rule laid down in Shujaat Hussain v. State 1995 SCMR 1249 and allowed bail to Hakim Ali Zardari in E.R. No. 17 of 1997 vide order dated 24-9-1997 subject to furnishing of security in following terms: Keeping in view the above principles and the rule of accountability in this Ordinance, we are of the opinion that cash security of Rs.1,00,00,000 (one crore rupees) shall serve the ends of justice. We accordingly direct applicant to furnish above cash security to Additional Registrar of this Bench within three weeks of this order. This shall be inclusive of the amount of Rs.20,00,000 (Rupees twenty lacs) already deposited by him under our order dated 8-4-1997. Additional Registrar shall deposit this amount in the Bank where already deposited amount lies. This period was fixed by the Bench with the consent of the learned counsel for the applicant. The applicant shall also surrender his Passport forthwith."
14-A. On the above findings. it was held that the Court was. not precluded from insisting upon cash security in a case being tried by under the Ehtesab Act, 1997. The matter went to the Hon'ble Supreme Court and the view was upheld by the majority in the case of Hakim Ali Zardari v. The State PLD 1998 SC 1. The relevant portion of the judgment reads as under:-- "
15. The provision in the Act conferring jurisdiction on the Court to direct deposit of bail amount in the Court instead of executing bond or offering sureties for the amount in our view related only to a procedural matter which did not affect the existing right of appellant for grant of bail under the Ordinance. Whether the concession of bail allowed by the Court is to be enjoyed by the accused on execution of a personal bond, furnishing of sureties or deposit of amount of bail in Court is purely regulatory and procedural in nature in which the person enlarged on bail, in our view, cannot claim. any vested right. Similarly, the provision in the Act that the amount of bail should not be fixed by the Court less than the amount mentioned. in the charge, is more beneficial to the accused as compared to the provision in the Ordinance, which provided that such amount should not be less than twice the amount mentioned in the charge. The fixation of amount of bail in the case before us is not under challenge and, therefore, mere fact that the accused is required to deposit the amount in Court instead of securing the same through sureties or bond cannot be said to have caused prejudice to the accused or have taken away any of his vested right. Section 31(2)(c) of the Act clearly provides that the proceedings under the Ordinance, were to continue under the Act, and as such all the provisions of the Act relating to procedural matter fully applied to a case pending under the Ordinance. Therefore, without going into the arguments whether the Court was competent under the Ordinance to direct the appellant to deposit the amount of bail in Court, we are of the view that the impugned order of the Ehtesab Bench was valid under the proviso to section 3(4) of the Act. Since the matter relating to grant of bail to appellant was pending in appeal when the Act was promulgated altering the procedure applicable to the grant of bail, the validity of the order of Ehtesab Bench is to be decided in the light of provisions of the Act which applied in the present case. It is not disputed before us that under the Act, the Court while admitting a person to bail in a case arising' under the Ordinance or Act could direct deposit of the amount of bail in Court in terms of the proviso to section 3(4) of the Act. Therefore, no exception could be taken to the impugned order. "
15. Guided by the above rule, we are inclined to take the view that this Court has power to- grant/allow post-arrest bail to any person accused of any' offence under the Ordinance subject to furnishing of cash security. This Ordinance deals with white-.collar crimes relating to massive embezzlement or misappropriation of public money. The Ordinance postulates that all offences thereunder shall be non-bailable and all the Courts including a High Court shall have no jurisdiction to grant bail to any person/accused. The question, as to whether the Accountability Court has inherent jurisdiction to grant bail, was not effectively argued before us. We are, therefore, not in a position to give a view on this matter in these cases and reserve it for future The Accountability Court had rejected the application for the grant of bail on the basis of lack of jurisdiction.
16. Having concluded that this Court has jurisdiction under Article 199 of the Constitution to release the petitioner on bail, we further find that the principle of ubi jus ibi remedium is attracted to this case. It means where there is a wrong, there is remedy. In this case, law does not equip the Court C of trial with the power to grant bail to a person accused of any offence under the Ordinance. This being the position, we are not persuaded to send back the case to the Court of trial and are inclined to examine the plea for the grant of post-arrest bail ourselves.
16-A. Applying these principles to the facts and circumstances of the case in hand, it is quite clear that Anwar Saifullah was summoned to appear before the Ehtesab Bench; that he appeared before it on. 17-3-1999 and furnished bail bonds in the sum of Rs.500,000 with two sureties each in the like amount to the satisfaction of the Registrar of this Court. It is also clear from the record that he had been appearing before the Ehtesab Bench without fail and never absented on any occasion. From the above, it clearly follows that neither he misused the concession granted by the Court nor caused and interference with the proceedings of the Bench. In the first reference. he had been accused of having caused a loss of about Rs.10,955,725 to the O.G.D.C. In the second reference, Anwar Saifullah is accused of causing a cumulative loss of Rs.67,906,161. The 3rd Reference relates to the misuse of official aircraft of O.G.D.C. by the petitioner. The allegations constituted by, this Reference make him liable for a sum of Rs.64,35,667, which is the loss suffered by the O.G.D.C. in terms of money due to the said misuse. As regards the 4th Reference, there is no allegation that the National exchequer sustained any monetary loss. However, it is alleged that he got inducted more than 124 persons in the O.G.D.C. The aforesaid persons have been confirmed in service and so no loss is reported to have been caused to the National exchequer. This is a case of misuse of political power. The accusations against him flow from a massive documentary evidence. The petitioner, naturally, needs an occasion to see these documents, prepare his defence and face the trial. This entitles him prima facie, the concession of post-arrest bail. Seeing from the above perspective, we are clear in our mind that he has a prima facie case calling for exercise of our jurisdiction to order his pre-trial release. This will enable him to prepare his defence.
The learned counsel for the petitioner voluntarily stated that he was prepared to deposit Rs. one crore as cash security with the Accountability Court. The petitioner is accused of having, caused a total loss of Rs.8.05 crore to the National Exchequer. In the context of the above amount, we are of the view that cash security in the sum of rupees two crore will meet the ends of justice. For the aforesaid reasons, we allow the first batch of Petitions bearing Nos.. 1187, 1188, 1189 and 1190 all of 2000. The petitioner shall be released on bail in the four references noted above subject to his deposit of cash security in the sum of Rupees two crore with the Accountability Court.
17. As regards the second batch of Petitions bearing Nos. 1651, 1652, 1653 and 1654 all of 2000, these fail and are hereby dismissed. The petitioner will be within his right -to move an application for acquittal at appropriate time before the original Court.
(Sd.)
Mian Allah Nawaz, C.J.
(Sd.)
Falak Sher, J.
(Sd.)
Tanvir Ahmad Khan, J.
(Sd.)
Mian Nazir Akhtar, J.
(Sd. )
Malik Muhammad Qayyum, J.
In view of majority opinion 4/1, we hereby allow "the first batch of Petitions bearing Nos. 1187, 1188; 1189 and 1190 all of 2000. The petitioner shall be released on bail in the four references noted above subject to his deposit of cash security in the sum of Rupees two crore with the Accountability Court.
As regards the second batch of Petitions bearing Nos.1651, 1652, 1653 and 1654 all of 2000, these fail and are hereby dismissed. The petitioner will be within his right to move an application for acquittal at appropriate time before the original Court".
(Sd.)
Mian Allah Nawaz, C.J.
FALAK SHER, J.---Anwar Saif Ullah Khan petitioner a former Senator and Minister for Petroleum and Natural Resources after ouster from office was proceeded against for criminal misconduct, corruption and corrupt practices abusing the official position under the Ehtesab Act, 1997 envisaging four counts, by virtue of Ehtesab Reference, styled as, E.R. No.6 of 1997, (conjunctively with the late Rifaat Askri former Chairman, O.G.D.C. against whom the same stood abated upon his demise) cognizance whereof was taken by the Ehtesab Bench of this Court headed by a learned Member of this Bench, Tanvir Ahmad Khan, J. on 2-2-1997.
2. Wherein, upon joining the proceedings pursuant to bailable Warrants returnable to District Magistrate, Laki Marwat, lie was required to furnish bail bonds. in the sum of Rs.500,000 with two sureties each in the like amount to the satisfaction of Registrar of this Court for appearance.
3. Being composite in nature it germinated into quadrouplets on 3-6-1997 and were numbered as E.Rs. 6-A to 6-D of 1997 encampassing the following:--
(i) DRY HOLE STUDY: Dry hole analysis study contract was awarded to Hydro Development Institution of Pakistan (I-DIP) jointly with M/s. Improved Petroleum Recovery International Limited of Dalas U.S.A. (IPR) a family concern of the petitioner being operated by a former employee of another private limited company of M/s. Saif International Combine (Pvt.) Limited. of Kassum Plaza Blue Area, Islamabad as undue favour in violation of the rules including special concessional conditions. i.e. 25% Mobilization advance in Pak rupees and U.S-, Dollars; 25% on final billing and 50% in two equal' instalments to be defrayed within 2/4 months of the commencement of the contract. (All payments to HDIP were to be made in Pak currency while to IPR 65% in U.S. Dollars and 35% in Pak currency) making wrongful gain to -the petitioner's company causing wrongful loss to the O.G.D:C. of Rs.10,955,725.
(ii) PERMISSION TO SELL OGDC's SCRAP/STORES: Violating the prescribed procedure for sale of scrap/stores weighing 2298.555 metric tones, were sold to eight favourites of the petitioner on his direction and two of the late Rifaat Askri causing a wrongful loss to the O. G. D. C. to, the tune of Rs.67,906,161.
(iii)GROSS MISUSE OF OGDC'S AIRCRAFT: Abusing the official capacity multitudinal deployment of the OGDC's Air Craft unauthorisedly beyond the scope of duty causing wrongful loss to the O. G.D.C. of a sum of Rs.19,44,000.
(iv)APPOINTMENT TO FAVOURITES: Employing-145 persons in different capacities without applications or insufficient particulars on the petitioner's recommendation in relaxation of the rules without advertisement of posts in the press and test/interview contrary to the advice viz. The O.G.D.C"s work force being, already considerably over encumbered and severe budgetary constraints.
4. Wherein, the petitioner consequent upon furnishing of copies of the documents perceived by section 265-C of the Cr.P.C. and fixation of the case for framing of the charge moved petitions tending to seek bail and quashment of the proceedings in terms of section 265-K (ibid) on 30-7- 1997 which remained pended pending hearing of the petitions assailing vires of the Ehtesab Act and proceedings thereunder and upon finalization thereof were taken up on 4-5-1998 and eventually upon repeal of the Ehtesab Act 1997 were entrusted to the Accountability Court constituted under the National Accountability Bureau Ordinance, 1999 (No.XVIII of 1999) (hereinafter referred to as the Ordinance) in terms of section 35 thereof on 16-1-1999 and were renumbered as A.C.R. 4-A to 4-D of 1999 who finally dismissed the same through separate orders dated 19-1-2000 viz. declining bail in terms of the jurisdictional bar envisaged by section 9(b) of the Ordinance and the quashment petition for the allegations levelled being not ill-founded ex facie duly vouched by the appended documentary evidence. .
5. Tending to assail legality thereof two sets of writ petitions were preferred viz. W.P. Nos.1187 to 1190 of 2000 and 1651 to 1654 of 2000 reiterating the pleas of bail and quashment respectively. ,
6. By virtue of the proposed judgment drawn up by the' learned Chief Justice the latter set of writ petitions has been dismissed being premature and practically having not been pressed in any consumable sense of the word, to which I concur.
7. While granting the former set of petitions petitioner has been allowed bail. subject to furnishing cash security of Rs.2,00,00,000 (two crore) with the Accountability Court.
8.Which finding I do not subscribe on facts, though having commonalty of opinion qua the jurisdictional bar envisaged by section 9(b) E of the Ordinance, text whereof is reproduced hereinbelow:- Section 9(b).--All offences under this Ordinance shall be non---bailable and, notwithstanding anything. contained in sections 426, 491,.497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court including the High Court shall .have jurisdiction to grant bail to arty person accused of any offence under this Ordinance."
Since the same can't overreach or circumvent the Constitutional power conferred under Article 199 of the 1973 Constitution duly preserved by the Provisional Constitution (Amendment) Order. 1999 being a subordinate legislation.
Concerning which due reliance has been placed on the precedent case-law cited at the Bar by the learned counsel 'for the petitioner viz. Zahoor Ilahi, M.N.A. v..The State 1975 PCr.LJ 1413, Ch. Zahoor llahi, M.N.A. v. The State PLD 1977 SC 273, Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599, The State v. Syed Qaim Ali Shah 1992 SCMR 2192 and Government of Sindh v. Raeesa Farooq and 5 others 1994 SCMR 1283.
9. Primarily for the reason that the allegations levelled, in particular in three references pertaining to the Dry Hole Study, the Sale of Scrap and unauthorised use of Air Craft ex facie being vouched by the documentary evidence are not ill-founded, demonstrating abuse of authority and making wrongful gains to the detriment of the public exchequer constituting sufficient grounds for believing the petitioner's involvement in the offence charged; rendering him disentitled to the extraordinary discretionary relief exercising powers contemplated by section 199 of 1973 Constitution.
10. Specially visualized in the- light of the fact that the references initially preferred on 2-2-1997 under the Repealed Ehtesab Act, 1997 were not allowed to take off the ground for practically three years, enjoying the privilege of extraordinary concession being on bail upon furnishing personal bond, resultantly the bail application and the quashment petition were G eventually dismissed vide the impugned orders by the Accountability Court on 19-1-2000 which practice if encouraged, in all probabilities would render fate thereof undetermined in the forseeable future, frustrating the very concept of accountability..
11. Further, it is not a fit stage for the grant of bail since according to the learned. Deputy Attorney- General, in one of the references out of the cited five prosecution witnesses three have already been examined while the remaining two could be off-loaded within a week whereafter recording the H petitioner's statement contemplated by section 342, Cr.P.C. and the evidence in defence, if any he would like to adduce including examining himself on oath in terms of section 340(2) (ibid), the case could be concluded in a couple of weeks.
12. In view whereof the petitioner is not entitled to the sought for bail.
13. Resultantly, Writ Petitions Nos.1187-B to 1190-B of 2000 are hereby dismissed.