1. ' S. ALI ASLAM JAFRI, J.--- The petitioner who is facing trial in N.A.B. Reference No,6 of 2001 before the National Accountability Court No,2, Karachi, has filed this petition for being enlarged on bail pending his trial.
2. ' The petitioner was apprehended on 9-1-2001 under the non-bailable warrants issued by the Chairman, N.A.B. On the allegations that he has accumulated movable and immovable properties and other assets which are incompatible to his known legitimate source of income. After completion of the investigation a reference was filed showing a list of twenty witnesses out of which, according to the learned counsel for the petitioner as many as fourteen witnesses have been examined, four witnesses have been given up and the prosecution has closed its side. Now the case is fixed on 7-9-2001 for the statement of accused under section 342, Cr.P.C.
3. ' In support of his plea for bail Mr. Muhammad Ashraf Kazi, learned counsel for the petitioner, has vehemently argued that in view of the observations of the Supreme Court of Pakistan in Khan Asfandyar Wali's case PLD 2001 SC 607 this Court has jurisdiction and powers to enlarge an accused on bail who is facing a reference before the Accountability Court. 'Mr. Muhammad Anwar Tariq, learned Deputy Prosecutor-General, Accountability, has conceded that in view of the recent amendments in section 9(b) of N.A.B. Ordinance through Ordinance No,XXXV of 2001. High Court has jurisdiction and powers to grant bail in appropriate cases. The question about jurisdiction, thus stands resolved and as such following the dictum laid down in the case of Ch. Zahur Ilahi v. The State PLD 1977 SC 273 we have converted this Constitutional petition into an application for bail and propose to examine whether it is an appropriate case where applicant/petitioner is entitled for being released on bail.
4. ' The offences for which the petitioner is facing trial reads as under:-- Charge ' I, Riaz Ahmed Phulpoto, Judge, Accountability Court No,II, Karachi, do hereby charge you: ' Badar Alam Bachani son of Muhammad Hashim Bachani as follows:- ' That you in your capacity as Chief Executive Officer (BPS-18) Cantonment Board, Hyderabad had in construction of Defence Plaza, Hyderabad fraudulently deprived the Cantonment Board, ' Hyderabad a loss of approximately Rs, 17,34,25,000 also in the construction of Quaid-e-Azam Plaza, Hyderabad fraudulently caused loss to the Cantonment Board, Hyderabad of approximately Rs,8,24,00,000. In construction of 22 shops you fraudulently deprived the Cantonment Board, Hyderabad loss of approximately Rs,99,00,000 awarding the contracts to the Civilian firms contrary to the rules for construction of the Cantonment Board and had allegedly accumulated movable and immovable properties and other assets which are incompatible to your known legitimate sources of income. You, your spouse, dependents and other Benamidars holding properties, which are owned, controlled and possessed by you. The agricultural land 116.01 acres situated at Deh Rajpari, Tapo-A, Qaiser Taluka, Hyderabad, in the name of your two minor sons Fahad Badar and Bilawal Badar, purchased in year 1998, for sum of Rs,75,00,000 (assessed value Rs,11,60,00,000).
5. Agriculture land 80.10 acres situated in Tapo Shaikh Moso, Taluka Tando Allahyar, in your name purchased in year 1993 for Rs,8,68,700 (assessed value Rs,80,20,000) one Bungalow No,71/1 Survey No,26, measuring 429 square yards (double storey) Phase VI, Defence Housing Authority, Karachi purchased in the year 1998 in the name of your minor sons Fahad Badar , and Bilawal Badar for Rs,17,00,000 (assessed value Rs,60,00,000) total immovable property is assessed at Rs,2,56,20,000 (Rupees two crores fifty-six lacs and twenty thousand only). You and your wife Mst. Shamsu-un- Nisa operating the Bank accounts as under:-- Name of account holderAccount No,Bank/BranchBalance (Rs,)Relation- ship with accusedTransactions Badar Alam PLS-2521-2 N.B.P., Cantt.
6. Board Karachi9202 Self 10,400,520 Badar Alam PLS-4854-3 BBP Drig Road Branch, Karachi3362 Self 7,21,245,54 Badar Alam PLS- 011001880 -3Askari Commercial 'Bank Ltd., Kehkashan, Karachi336/33 Self 10,91,183,33 Mst. Shams- un-NisaPPA-36 Allied Bank of Pakistan, Hussainabad Branch, Hyderabad24,37,917 Wife 28,91,697 Mst. Shams- un-Nisa1/1691-8 H.B.L. Shoe Market Branch, Karachi Wife 92,50,000 Total transaction Rs,2,43,54,64,587 ' Two cars in the name of your wife Mst. Shams-un-Nisa Baleno (ACT-846) Price Rs,6,25,000 and Honda City (ACD-388) of Rs,5,75,000. That you are drawing a salary of Rs,8,755 per month. Your expenditure appears to be over 50,000 per month. The assets mentioned above have been acquired by you by corrupt, dishonest and illegal means. The properties obtained by you for yourself, your spouse Mst. Shams-un-Nisa and dependent your minor sons Fahad Badar and Bilawal Badar. The said property is beyond the known sources of income which you owned, possessed and acquired, which you cannot reasonably account for and thereby you had committed offence of corruption and corrupt practice which falls under the ambit of section 9(1) of the N.A.B. Ordinance, 1999, and which is punishable under section 10 of the N.A.B. Ordinance, 1999, and within the cognizance of this Accountability Court.
7. ' And I hereby direct that you be tried by this Court on the abovementioned charge.
8. ' On this 25th day of April, 2001.
9. (Sd.) Judge, Accountability Court No,II, Karachi.
10. ' The learned counsel for the petitioner has argued that the allegations against the petitioner are false who has no nexus or even the remotest connection with the alleged offence and he has been falsely implicated. The learned counsel has further argued that as many as fourteen witnesses have been examined in this case and he has taken us through the evidence of the witnesses and vehemently urged that as a result of tentative appraisal of the evidence no case had been made out against the petitioner hence he should be released on bail. The learned counsel has further argued with the help of various authorities including a recent judgment of Division Bench of this Court in C.P. No,D-1283 of 2001 (Asif Baig Muhammad v. The Chairman, N.A.B. And others) 2001 YLR 2509 that the "object of incarceration of an accused before conviction is not, and cannot be, a punishment for the offence, yet to be proved at the trial, because, in that case the trial itself would be a farce". He has pointed out that in the above referred case applicant/accused was admitted to bail in the sum of Rs,1.00 million and P.R. Bond in the like amount. He has further argued that it is well-settled principle of law that in criminal cases rule is bail and not jail. On the other hand Mr. Muhammad Anwar Tariq, learned D.P.G.A., has vehemently opposed the plea for grant of bail and argued that it is not an appropriate or fit case for grant of bail or exercise of the said jurisdiction in favour of the petitioner. The learned counsel with the help of the record has pointed out that the petitioner who joined service in BPS-17 on 2-10-1983 had declared his assets for the year 1984 to the tune of Rs,20,000 only and by 1995 the same became Rs,3,90,000 only. However, in the year 1998 there was a rapid increase in the assets of the petitioner and the total worth of his assets till his arrest in January, 2001 comes to 2,43,54,64,587 (Rupees two billion forty-three crores fifty-four lac sixty-four thousand five hundred eighty-seven) which include agricultural land, in District Hyderabad and double-storey bungalow in Phase VI of D.H.A. Karachi in the name of minor sons.
11. Agricultural land in the name of his wife Mst. Shams-un-Nisa and cash in various accounts as specified in the charge, apart from Honda City and Baleno cars in the name of his wife, though the monthly salary being drawn by the petitioner was Rs,8,755 only. The learned D.P.G.A. Has, therefore, argued that there are no reasonable grounds to believe that the petitioner has not committed the alleged offence. He has further argued that the case is at the conclusion stage, prosecution has closed its side and statement of accused/petitioner is to be recorded within a few days as such there is every likelihood that the petitioner if released on bail shall either abscond away or disappear. The learned counsel in support of his contention has placed reliance on the case of the State v. Dr. Usman Farooqui a Full Bench judgment authored by Saiyed Saeed Ashhad, J. (as his Lordship then was) wherein bail was declined to the accused even on medical grounds where charge against him was misappropriation of colossal amount of millions of public money. The learned D.P.G.S. Has also placed reliance on the case of Imtiaz Ahmed and another v. The State PLD 1997 SC 545 in which the apex Court has laid down a principle that even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C. The Court may decline to admit an accused on bail if there existed a recognized exceptional circumstance. Their Lordships have drawn a line in respect of the offence committed against an individual like a theft and offences committed by public functionary in respect of or in connection with his public office, in the following words:-- "I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. In the absence of an exceptional circumstances may be followed, but in the later category the Courts should be strict in exercise of discretion of bail."
12. ' Replying to the arguments of learned counsel for the petitioner with reference to unreported case of Asif Baig Muhammad (supra) the learned counsel for N.A.B. Has argued that the facts of the said case are altogether different and as such it has no applicability to the case in hand.
13. We have considered the arguments of learned counsel for the petitioner as well as the learned D.P.G.A. And have reached to a conclusion that the nature of the allegations against the petitioner and a tentative assessm ent of the evidence on record does not justify his release on bail. The various explanations advanced for accumulation of such enormous wealth i,e, about two and half billion rupees by a public servant drawing salary of Rs,8,755 during such a short period of about six years has been tried to be explained through cross-examination of the witnesses including Mst.
14. Shams-un-Nisa alias Shama wife of the petitioner/accused but a tentative apparaisal of the entire evidence on record does not justify the same. A deeper appreciation of the. Evidence at bail stage is not permissible under the law lest it may adversely effect the mind of the trial Court particularly when the case is at the stage of conclusion. Under the circumstances no case for bail is made out.
15. ' After hearing the learned counsel for the parties on 21-8-2001 we had dismissed the petition/application for bail by a short order and these are the reasons for the same.