' Petitioner, an accused under the Nab Ordinance (No,XVIII of 1999), has sought the concession of bail by filing the instant petition which was admitted to full hearing on 23-5-2002 and directed to be before a Single Bench for disposal being a petition for bail in its essence.
2. The NAB Authorities after holding an investigation and collecting material regarding malpractices in the Ring Road filed a reference, under section 18 of the said Ordinance against Haji Gul Sher Khan, ex-Senator and others. The petitioner was arrested on 6-1-2002 at the Peshawar Airport while coming from abroad in connection with warrant of arrest No,6(8)/COS-NAB dated 4- 1-2002. He was remanded to judicial custody till 21-1-2002 and subsequently supplementary challan was. Submitted against him. It is pertinent to mention that he was placed in Column No,3 of the challan submitted against Haji Gul Sher Khan and others.
3. Learned counsel for the petitioner contended that the petitioner remained as Chief Minister of the N.-W.F.P. On two occasions; firstly, from 2-12-1988 to 6-8-1990 and, secondly, from 24-4-1994 to 12-11-1996. The project of establishing Ring Road was commissioned. From the Notification issued on 11-5-1988 under the Urban Development Planning Ordinance, 1978 when the petitioner was not holding any public office. A Corrigendum Notification was issued on 20-6-1991 and the case of prosecution is that while issuing the Corrigendum Notification on 20-6-1991 opportunity was provided to the affectees/landowners to enter the attest about 144 mutations respecting small pieces of land so that the rate of compensation on the basis of Aust-e-Dosala could be enhanced.
The petitioner could not be made an accused as on 10-6-1991 when Corrigendum was issued, only the proposed area for acquisition was altered and the petitioner was not holding any public office even if it is presumed that Corrigendum was issued with mala fide intention. Another Corrigendum Notification was issued on 19-3-1994 whereby the original Notification was revived but the petitioner was also not holding any public office on that date. The rate of compensation was awarded at the enhanced rate through Award dated 17-7-1994 on the basis of two years' average of the sale mutations preceding the date of Corrigendum Notification dated 20-6-1991.
4. The petitioner has been arrayed as an accused for grant of approval/sanction to the summary placed before him on 24-9-1994 wherein it was suggested by the Minister, for Physical Planning and Housing Department that if the matter regarding exorbitant amount of compensation is taken to Courts by either party the amount would be further increased. It is contended that the Award was announced on 17-7-1994 and the time limits for filing an appeal was one month under section 60 of the N.-W.F.P. Urban Planning Ordinance, 1978 (No,IV of 1978). On the date of granting approval/sanction of the summary on 24-9-1994 the time limits for filing of appeal had already expired. Further contended that there was no need of any approval/sanction of the Chief Minister for filing of appeal against the Award. The Acquiring Department was competent to file an appeal without obtaining any approval/sanction of the Chief Minister. The petitioner could not be blamed for granting sanction/approval to the opinion sought by the concerned Minister for want of any 'criminal mens rea' on his part. It is also contended that the petitioner has been falsely roped as an accused in at least four references and the petitioner has been granted acquittal in all other references while the present one is still under trial and there is no hope of its conclusion, in the near future. Learned counsel for the petitioner also contended that the petitioner is not the beneficiary of the exorbitant Tate of compensation awarded to the affectees/landowners but has been proceeded under presumption of connivance with the actual beneficiaries with no evidence. There is thus no possibility of his coviction and his further detention amounts to humilitation for no wrong.
5. The learned counsel appearing for the NAB Authorities opposed the concession of bail to the petitioner on the ground that smooth trial of the petitioner and his co-accused may be affected adversely. The petitioner, who remained as Chief Minister of the Province, had a commanding position and anything done illegal in his supervision by the Head of Departments or member of his Cabinet and no action was taken by him for the wrongs done, it shall be presumed that he was ,a party to it. He frankly conceded that the petitioner was not holding any public office at the time of first Notification as well as on the date when Corrigendum Notifications were issued but preventing the Department from filing an appeal against the Award, as is evident from the summary, is sufficient for the Accountability Court to presume that the petitioner was guilty of corruption and corrupt practices and it is the petitioner's burden under section 14 of the NAB Ordinance, 1999 to rebut the presumption and prove himself innocent through convincing evidence. Failure on his part to discharge such burden the petitioner cannot claim innocence. The learned Additional Advocate-General adopted the arguments of Additional Prosecutor NAB and maintained that giving finding on merits of prosecution case shall influence/prejuice the mind of the trial Court that is why this Court will never examine in depth the case of the prosecution at bail stage. However, he conceded that there is no evidence to show that the petitioner is beneficiary of the exorbitant rate of compensations fixed through the Award and the only evidence to establish the collusion of the petitioner with the actual beneficiary is the summary approval by the petitioner as Chief Minister referred to by the Additional Prosecutor. NAB.
6. It is an admitted position that the petitioner was not holding any public office when the Ring Road Project was launched. The initial Notification for acquisition of land and the Corrigendum Notification were issued before the induction of the petitioner as Chief Minister of the N.-W.F.P. This is also a fact that the basis of Reference against the petitioner and his co-accused is the Corrigendum Notification whereby opportunity was allegedly provided to the landowners to manipulate the entry and attestation of 144 sale mutations during the year 1993-94 which were considered in the Aust-e-Dosala prepared for determination of rate of compensation of rate of compensation. Under the law rate of compensation is fixed on the basis of average of sale mutation in the preceding year than the Notification. Assessing the market rate as Rs,5,772.25 for village Lala Ahmad and Rs,3,805.50 for village Salu per Marla was based on two years' average of sale mutation in that revenue estate. But subsequently when the market value was reassessed after Corrigendum Notification considering the 144 mutations attested subsequently the rate of compensation went up to Rs,2,19,178.76 per Marla in Moza Lala Ahmad and Rs,1,13,199.08 for eastern side of land and Rs,25,000 for western side of land in Moza Salu. There is also consensus between the parties that actual beneficiary of the enhancement made in the rate of compensation is Haji Gul Sher Khan, Ex-Senator and his brothers. Haji Gul Sher Khan and the concerned Revenue Officials are also co-accused in the Reference.
7. Haji Gul Sher Khan is also charged for receiving compensation of the Government-owned land in village Lala Ahmad wherein he was having only possessory rights. He was recorded owner of only 7 Kanals, 7 Marlas out of total acquired area of 42 Kanals, 4 Marlas land and could get compensation for the crops or any other improvement or superstructure on the land measuring 34 Kanals, 17 Marlas owned by the Government and possessed by him. It is also an admitted fact that not an iota of evidence was collected by the NAB Investigating Officer to establish that the petitioner entered into any connivance with him or obtained any share/benefit in the said ill-gotten money.
The only evidence on which the prosecution has relied upon to establish the connivance of petitioner with the beneficiaries in the illegal loss caused to the Government is the summary approval by him on 24-9-1994 and the Planning Urban Development Board or Physical Planning and Housing Department were not directed to file an appeal against the exorbitant rate of compensation. This is an admitted position that for filing an appeal by the concerned Acquiring Department there was no legal requirement of obtaining sanction of the Chief Minister and there is no evidence to show that the petitioner had forbidden the Acquiring Department from filing an appeal in the Court of law. This being documentary fact that the summary in question reached in the hands of the petitioner on 24-9-1994 when the prescribed period for filing appeal had already expired on 17-8-1994. The learned Prosecutor contended that the Department could competently sought condonation of delay in filing appeal, if the Chief Minister had issued a direction to that effect. When posed with a query that on what grounds the Department could be granted condonation of delay and was it proposed in the summary. It was replied that condonation could be granted sought on the ground of obtaining copies of documents. Such ground could not be accepted for grant of condonation as the Government or the Acquiring Department was already in possession of all the record including the final Award and even otherwise the Acquiring Department had the means and resources to get the copies of the relevant documents in time.
Under section 5 of the Limitation Act, 1908 the condonation of delay could only be granted when the appellant has satisfied the Court that he had sufficient cause for not filing appeal within time.
There is no difference in law between a Government Department and a private individual and both are treated equally in Courts of law. If some case-law is needed, I may quote PLD 1958 S.0 (Pak.) 167, PLD 1973 Karachi 618, AIR 1962 Himachal Pradesh 16 and 1969 DLC 642. The appeal etc. Filed by the Government are frequently dismissed by the Courts if found barred by time and no reasonable explanation is offered. Even otherwise, the petitioner as Chief Minister was not highlighted the legal position in the said summary rather it was suggested by the Minister concerned that filing of appeal would not be in the interest of Government or the Acquiring Department as there was every possibility of further enhancement of rate of compensation in Court. In the final approval of summary by the petitioner as Chief Minister on 24-9-1994 was nothing but approval of suggestion of the concerned Minister. The suggestion was as under:-- "As for the awarded amount although it appears very exorbitant but I feel that if it is taken to the Courts by either party, the amount would be further increased."
' The endorsement/approval of the petitioner as Chief Minister reads as follows:-- "Judicial remedies of appeal would lead us no where (as pointed out by the Minister) and further delay the project. I am afraid we have to suffer for the follies of others."
The bare reading of the suggestion of Minister and approval by the petitioner as Chief Minister do not establish any "criminal mense rea" on the part of petitioner. Regarding "mense rea" this Court has held in a large Bench reported in Aftab Ahmed Khan Sherpao, Ex-Chief Minister of N.-W.F.P. v.
The State (PLD 2001 Peshawar 80) as follows:-- "Examining the whole summary, the Chief MinNter, Aftab Ahmed Khan Sherpao agreed with the proposal of the Chief Secretary and made the allotments. So far as the replanning and creation of plots are concerned, it is evident from the very evidence of the prosecution and past correspondences that it always had been the job of the Authority (PDA). To prove that such allotment was violative of law and rules, the learned Assistant Advocate-General and the learned counsel relied upon different Rules and Regulations. These were pressed into service also to substantiate that the direct correspondence between the two convict-appellants was collusive and mala fide. This is fact in the main grievance of Mr. Abdul Hameed Khan, the then Secretary, who, immediately with the fall of the Government of Aftab Sherpao, took action, reacted sharply and got a case registered. The prosecution quite amazingly, seems to have also been suffering from `Hameed Khan Fixation'. We have given our considered thought to the point in question and do believe and hold that mere irregularities in allotment of plots (which also is not proved) and mere bypassing of someone in correspondence, might be dubbed as irregularities but cannot attract criminal liability unless criminal mense rea, dishonest monetary advantage, extended or gained, is distinctly and independently proved. On file there is no an iota of evidence to the effect."
8. The petitioner was also tried as accused in Reference No,1 of 2002 and No,3 of 2002 and was granted acquittal by Accountability Court vide judgment dated 26-4-2002 and 24-4-2002 respectively. Even the punishment of petitioner under section 31-A of the NAB Ordinance was set aside by a Division Bench of this Court vide judgment dated 17-4-2002. It was not stated at the bar that either the orders and judgments of acquittal passed by the Accountability Court are the orders of acquittal passed by Division Bench of this Court has further been challenged in appeal.
The learned counsel for the petitioner argued that conclusion of trial of the petitioner will take sufficient time as the prosecution has applied for production of 144 mutations attested in-between the initial Notification and the Corrigendum Notification. If more than 144 sale mutations are, intended to be proved at the trial it will take sufficient time as under Article 79 of Qanun-e- Shahadat any document required by law to be attested could be proved by producing its two marginal witnesses. It was also argued that the material evidence has already been recorded and the case of the prosecution is based on documentary evidence in possession of the prosecution and there is no apprehension that the petitioner could tamper with the documentary evidence relied upon by the prosecution or could influence the proposed prosecution evidence. Since liberty of the citizen is involved and on the available record prosecution evidence no case could be made out against the petitioner, therefore, the petitioner applied for his acquittal under section 265-K, Cr.P.C. But the same was rejected by the Accountability Court vide its order, dated 26-4-2002 which is not an appealable order and the only remedy available to the petitioner under the existing law is to seek the concession of bail till disposal of the trial by the Accountability Court.
9. The contention of the learned Additional Advocate-General that trial has already commenced and any observation/assessm ent of prosecution case will prejudice mind of the trial Court is misconceived as the observations or assessment made at this stage will amount to a tentative assessm ent with no bearing on trial. The commencement of trial could hardly be considered as an impediment in the grant or refusal of bail. In this regard PLD 1989 SC 585 and 1995 PCr.LJ 310 could be conveniently referred.
10. Under unamended section 9(b) of the NAB Ordinance, 1999 all offences under the Ordinance were made non-bailable and any Court including the High Court were held not competent to grant bail. Since there was no mention of the august Supreme Court as held in Anwar Saifullah's case (2001 SCMR 1040) that the Supreme Court possesses the power to enlarge an accused on bail, section 9(b) was subsequently amended and the words 'including the High Court' were omitted thus the powers of the High Court under sections 497/498, Cr.P.C., regarding bail were restored on the aforesaid analogy. This factum was considered by a Division Bench in Haji Ghulam Ali's case (E.Cr.Misc. No,17 of 2001) on 27-2-2002 and held that the High Court can entertain bail petitions under the NAB Ordinance.
11. In view of the admitted position noted in the aforesaid paras. And the fact that the petitioner has been granted acquittal in Ehtesab References Nos.1 and 3 of 2002 and that fact that there is no apprehension that the petitioner would tamper with the prosecution evidence if enlarged on bail and the conclusion of trial in the Accountability Court will take sufficient time as at least 144 sale mutations are yet to be proved by the prosecution at the trial, I am of the view that the petitioner deserves to be extended the concession of bail in the peculiar circumstances of the case. Any observation made above is a tentative assessment for the disposal of the instant petition and shall have no bearing upon the trial of the accused-petitioner. I allow this petition and direct that the petitioner be released on bail provided he furnishes bail bonds in a sum of Rupees five lacs (Rs,5,00,000 only) with four sureties each in the like amount to the satisfaction of the trial Court.
12. Above are the reasons for the short order announced on 3-6-2002.