This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, through which the petitioner namely Muhammad Saeed Mehdi, a member of the District Management Group of Central Superior Service, is under arrest since 7-4-2000 in a case under section 9(a)(iii)
(vi) of the National Accountability Bureau Ordinance; 1999. The petitioner alongwith two others namely Asif Ali Zardari and Shafi M.Sehwani was challaned to face the trial in the Reference No,6 of 2000 under section 18(g) read with section 24 of the National Accountability Bureau Ordinance, 1999, before an Accountability Court established under the said Ordinance.
2. The petitioner was being charged for the following allegations:--
(a) That he while holding the post of Chairman,' Capital Development Authority, in December, 1993, through misuse of his authority and official position sanctioned an amount of Rs,0.6 millions to the Environment Directorate, C.D.A. For the expenditure of landscaping near Gate No,3 of the Prime Minister's House, Islamabad, in breach of the Rules.
(b) That an amount of Rs,10 lacs was approved for construction of one suite, two stable-sheds, 4- guard rooms with toilets near Gate No,3 of the Prime Minister's House. The report under section 173, Cr.P.C. In the Reference is read as under:-- "For this purpose, as a first step he directed Saeed Mehdi, the then Chairman, C.D.A. For landscaping near Gate No,3 of Prime Minister's House. At this Saeed Mehdi without any proper requisition from Prime Minister House directed Mr. Akbar Nawaz, then Director, M.P.O. Of C.D.A. On 25-11-1993 to shift a bulldozer to P.M.'s House who complied with the directions. Spot inspection showed excessive scope of work at which Mian Mahmood, Deputy Director M.P.O. Who had visited the spot reported that three bulldozers were required and M.P.O. Had no funds and work of landscaping was job of Environment Directorate, therefore, an amount of Rs,6 lacs may be placed at the disposal of Environment Directorate. Mr. Saeed Mehdi approved proposal at which A.F.O.
Formally allocated funds of Rs,0.6 millions on 4-12-1993 to Environment Directorate who started the work of landscaping. Asif Ali Zardari during that period had also directed Mr. Abdul Hamid Bhatti, Assistant Engineer Pak P.W.D. Performing duties in Prime Minister House for construction of Polo Pit who informed him that extra work cannot be taken in the hand without the approval of the Military Secretary, controlling incharge of Pime Minister House. Therefore, the Assistant Engineer politely declined at which Asif Ali Zardari became arrogant and went back with great anger. Thereafter, on 28-4-1994 Ali Mubarik Masud, Deputy Director Special Projects under the directions of Shafi M.
Sehwani, the then Vice-Chairman C.D.A. Went to Prime Minister. House where Tahir Niazi and Allah Ditta, Polo Instructor of Asif Ali Zardari earmarked area for construction of one suite, two stable sheds and four guard rooms with toilets alongside the stables. Shafi M. Sehwani then Vice- Chairman, C.D.A. Without seeing that requirement was not from any lawful authority of Prime Minister House and without any feasibility report approved the proposal of the work on 2-5-1994 with slight modification i,e, two guard rooms instead of four and Saeed Mehdi then Chairman approved the allocation of Rs,1.00 million without any legal justification. Then, an estimate of Rs,15,85,600 for constriction of stable sheds for 16 horses near gate number 3 of Prime Minister House was put up by Deputy Director and Director Special Project, which was later on reduced to Rs,11,18,380. The file shows that under the cover of urgency no tenders were floated instead quotation from approved contractors were obtained and quotations of Messrs Moeen Sons (Pvt.) for an amount of Rs,12,29,994 on 23-6-1994 was ultimately approved by "Shafi Sehwani, the then Chairman. He did not bother to see that there was no requisition from the competent authority of P.M. House and that also no justification existed. It has also come in evidence that requirements of constructions of stables, rooms with toilets and a suite were forwarded by Special Project Division to Directorate of Architecture CDA and Mr. M.D.
General Director Architecture got prepared the drawings for said works. The said designs were shown to Asif Ali Zardari by the said Director and Mr. Mubarik Masud, Deputy Director, Special Projects but the designs were not liked by Asif Ali Zardari who desired that the design be prepared according to the requirements provided to CDA. Consequently drawings were amended and provided to Directorate of Special Projects. Similarly, on different occasions Mr. Asif Ali Zardari had been issuing directions to CDA's officers in connection with construction of Polo-Ground etc. Then on 12-6-1995, Shafi M.Sehwani then Chairman, C.D.A. Directed D.G. Environment and Deputy D.G. (Works-1) for starting additional works of water supply line, one more underground tank and another polo ground. He also directed that these works may be started and completed on urgent basis without further delay and also to report progress weekly. Similarly, other allied work i,e, retaining walls, sitting dias at polo ground, drainage work, roads, car park, electrification of polo grounds area, horses tracks etc. Were executed by the C.D.A. It has also been found that before start of all the works PC-1 was not prepared and administrative approval for the works was also not obtained from the CDWP. No specific funds for polo ground and ancillary construction were available. The expenditure was met illegally from the lump provision available for other approved schemes of P.M.'s House included in the (PSDP) Public Sector Development Programme and Capital grant of C.D.A. For the years 1993-94; 1994-95 and 1995-96.
The PC-1 was prepared by C.D.A. In January, 1995, when the work was near completion, costing Rs,39,786 millions and was sent to Planning Division through Cabinet Division in February, 1995. In PC-I the works of polo-ground polo pits and horses stables were not mentioned and the same were concealed by naming the same as landscaping work, horticulture. This was done in order to avoid objections on the works being executed without lawful authority. But the C.D.A. Had to disclose these works on objection from Planning Division mentioned in working paper for the CDWP conveyed to Chairman CDA through letter dated 17-10-1995. In meeting of CDWP dated 10-1-1996, the Chairman, CDWP had taken a very serious view of non-submission of PC-1 before starting the work not obtaining anticipatory approval before incurring the expenditure and violation of the financial and administrative procedures and deferred the consideration of the project. On 26-5-1996, an explanatory note signed by Zafar Iqbal, then Chairman, C.D.A. Was sent to Planning Division through Cabinet Division and through this note the CDWP was misled as it was mentioned in the note that 'the consolidated PC-I comprising of various items of work noted above were accorded priority and executed a pressing demands of Prime Minister's House authorities.' In fact there was no requisition/demand from competent authority i,e, Military Secretary to Prime Minister who was the, controlling officer of Prime Minister House, rather the works were done on verbal directions of Asif Ali Zardari, spouse of then Prime Minister and he had no legal authority to issue such instructions. On 4-7-1996 after receipt of above explanatory note of Chairman, C.D.A., the CDWP ultimately accorded ex post facto approval at a cost of Rs,39.386 millions with the direction that in future CDA should not incur any expenditure without approval of the competent authority. It has also been found that during the period, the PC-1 remained under consideration, the CDA continued execution of additional works on polo ground and ancillary construction and the total amount of expenditure rose to Rs,52.297 million, break-up of which is as under:--
1. Environment Directorate. Rs, 19.381(m)
2. Road IV Directorate. Rs, 22.325(m)
3. Directorate. Rs, 4.000(m)
4. Special Project-II DirectorateRs, 3.642(m)
5. Water Meter Directorate Rs, 1.438(m)
6. W & S Zone "B"
Directorate.Rs, 0.709(m) Total: Rs, 52.297(m) The C.D.A. Also did not obtain approval/sanction of CDWP for the revised amount of Rs,52.297 million. The investigation revealed that the work which started from an amount of Rs,6 lacs was ultimately completed for an amount of Rs,52.97 millions which was a direct loss to the Government Exchequer/CDA just to fulfil the desire of an unauthorised person i,e, Asif Ali Zardari. This amount was also spent in violation of the rule 10(iv) of the Financial Rules of Property GFR Vol-1 of the Government of Pakistan, as the work was not in public interest. The Audit Department of Government of Pakistan has also conducted special audit of this project and held the whole expenditure as unjustified and wasteful. Version of accused persons was obtained and the same has not been found plausible. It has also been found that 47 private horses for polo were kept in the stable sheds constructed in Prime Minister House Complex. It has been found that on the illegal order/directions of Asif AU Zardari, husband of then Prime Minister. Mr. Saeed Mehdi, Mr.Shafi M.Sehwani and Mr.Zafar Iqbal (deceased) as Chairman, C.D.A.
Converted an amount Rs,52.297 millions from Public Exchequer/C.D.A. Funds for illegal construction and development of polo-grounds and allied facilities. They violated legal financial and administrative requirements by obeying illegal order/directions of Asif Ali Zardari and misused and misapplied public funds/CDA funds for the construction of a project which they knew' and had reasons to believe was for the personal use and enjoyment of Asif Ali Zardari. Thus, they committed the offence of corruption and corrupt practices. Asif Ali Zardari aided and abetted the offence of corruption and corrupt practices by issuing illegal order/directions. Thus, he is also guilty of the offence of corruption and corrupt practices under section 10 of the NAB Ordinance."
3. Learned counsel for the petitioner in support of this petition has placed on record the following documents:--
(1) The conviction slip attached with the Reference in which the date of arrest of the petitioner is mentioned as 7-4-2000.
(2) The letter-containing request of Deputy Director (Operation) MPO, Capital Development Authority, for sanction of Rs,6 lacs for the landscaping near Gate No,3 of the Prime Minister's House Complex, Islamabad.
(3) The letter of the Deputy Director, Special Projects Division-II, CDA, Islamabad with the proposal of construction of suits, guardrooms and two stable sheds near Gate No,3, Prime Minister's House Complex accompanied with the Noting of the concerned official/officer in the CDA including the Financial Adviser.
(4) Notification dated 1 1 th January, 1990, relating to the financial powers of the Chairman, CDA.
(5) The minutes of the meeting held on 4-7-1996 in connection with the construction in question in the Prime Minister's House Complex at Islamabad.
(6) The copy of the order of the Accountability Court-I, Attock. Fort, passed in an application moved by the State for separation of trial of Shafi M.Sehwani.
(7) The copy of an order dated 17-3-2001 passed by the Accountability Court by virtue of which the proceedings in the trial were adjourned sine die because of the ailment of Shafi ' M.Sehwani with an observation that the prosecution may inform the Court for fixation of the case on improvement of condition for the said accused.
4. Learned counsel for the petitioner has raised the following contentions in support of this petition:--
(i) That the bare perusal of the report under section 173, Cr.P.C. Dated 11-5-2000 on the basis of which the Reference against the petitioner and others was submitted before the Accountability Court would show that the same does not contain the allegations of corruption, misappropriation of funds or of embezzlement or even mismanagement of finances.
(ii) That it was in the competence of the petitioner as Chairman, CDA to sanction such an amount for the landscaping in routine as competent authority to be sent by the concerned Directorate of the CDA and that neither the amount in question was sanctioned for construction of polo ground nor the report under section 173, Cr.P.C. Contained such an allegation. Learned counsel submitted that in fact, the amount in question was being required for an official project which was sanctioned on the recommendation of the Chief Engineer CDA/Member Engineering, for expenditure of fuel for machinery to be used in the project.
(iii) That on the approval of the proposal of the landscaping by the Deputy Director (Operation)
MPO, Director MPO and the Chief Engineer, for the purpose of security of the Prime Minister's House, the expenditure was to be necessarily sanctioned.
(iv) That the approval of expenditure of another sum of Rs,10 Lacs for the construction of one suite, two stable-sheds; four guard-rooms with toilets was made through bridge financing for the construction of polo ground which was approved by the then Vice-Chairman of the C.D.A. Namely Shafi M. Sehwani being the competent authority. The learned counsel clarified that the approval of bridge financing of Rs,1 million was for construction work in the Prime Minister's House Complex and not for the construction of polo-ground and that in any case, the petitioner was not concerned with the approval of the Project.
(v) That the re-appropriation or bridge financing is a recognised rule of financial arrangement to meet the requirement of a particular project and in case funds are not readily available in the relevant Head, the same are temporarily borrowed from another Head. Learned counsel argued that the concerned officials including the Financial Advisor having examined and recommended the expenditure through bridge financing placed the same before the petitioner as Chairman of the C.D.A. For approval, which was approved accordingly.
(vi) That undoubtedly Rs,0.6 millions was sanctioned for the landscaping whereas approval of Rs,1 million was given for the construction of work in the Prime Minister's House through bridge financing with no personal gain or benefit, rather it was done by the petitioner in discharge of official duty and thus he has committed no wrong under the law. It has been argued by the learned counsel that the fulfilment of the requirement of the Prime Minister's House was neither transgression of authority nor misuse of powers and was also not a financial irregularity to constitute an offence under section 9(b)(iii)(iv) of the National Accountability Bureau Ordinance, 1999.
(vii) Learned counsel while concluding his arguments on the facts has raised the following legal questions:--
(a) That an act done in good faith with no intention to cause loss to the Government or an individual or to make a financial gain for want of mens rea would be not a criminal act
(b) That in the light of official correspondence, the allegations of misuse of powers and dishonest conversion of funds in his control for a purpose other than the public interest unless as a result of scrutiny is established at the trial that the same was done with mala fide intention and in bad faith, the petitioner would be deemed to be innocent and consequently, the curtailment of his liberty through detention pending disposal of the case would be in violation of Articles 4, 9, 10 and 14 of the Constitution of Islamic Republic of Pakistan, 1973, and in any case the continuous detention for the last about seventeen months without trial would make the same illegal.
(c) That the grounds which are relevant for the grant of bail under section 497, Cr.P.C. Without any distinction shall be considered for grant of bail under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to protect the liberty of a person who is detained in a criminal case in which the provisions of section 497, Cr.P.C. Are not invokable. Learned counsel while placing reliance on Zafar Ali Shah and others v. General Pervaiz Musharaf, Chief Executive of Pakistan and others 2000 SCMR 1137 and Khan Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 Supreme Court 607 contended that the superior Courts while exercising the Constitutional jurisdiction always extend the same to protect the liberty of the citizens notwithstanding the law taking away the powers of grant of bail or suspension of sentence under sections 426 and 497, Cr.P.C. Through a special law. The learned counsel has also cited the following judgments in support of his contentions:--
(i) 1995 SCMR 387; (ii) 2000 SCMR 107; (iii) PLD 2000 Lah. 564; (iv) PLD 2001 SC 607 and (v) 2001 SCMR 294.
5. In addition, it was urged by the learned counsel that the petitioner was also entitled to the grant of bail on medical ground in the light of the Report bearing No,66 dated 13-1-2001 given by the Senior Medical Officer, Central Jail, Rawalpindi. Additionally as per direction of the Accountability Court; vide order dated 10-1-2001 the petitioner was medically checked up by Dr.S.A. Haider at Haider's Clinic, Islamabad, and said doctor advised the petitioner for physiotherapy twice a week for six weeks. The medical report given by Dr. Khaliq Dad Raja would also show that the gap appearing between the vertebrae was suggestive of partial nerve compression and seriousness of the condition and it was opined by the said doctor that ultimately it can permanently develop neurological deficit if proper and adequate medical attention is not provided in a well-equipped hospital.
6. During the pendency of this petition, under the direction of the Accountability Court, the petitioner was referred to the Pakistan Institute of Medical Sciences, Islamabad, for his medical examination and investigation. The Professor Dr. Muhammad Shafique, Consultant Surgeon, Head of the Department of Surgery, medically examined the petitioner and through the report dated 1-8- 2001 annexed with this petition gave opinion as under:--
(i) He is suffering from fairly advanced cervical spondylosis with evidence of root compression and has symptoms of vertebrae basalar syndrome.
(ii) Lack of proper medical care may lead to further worsening of neurological signs and ever- permanent neurological damage. The Consultant Surgeon has recommended the following treatment:--
(i) To prevent further damage he should have regular monitoring and treatment of cervical spondylosis in the form of cervical traction and SWD from a well-equipped hospital.
(ii) With regards prostatism and history of renal stones he needs proper investigations and appropriate treatment.
7. Learned counsel for the petitioner has submitted that the concept of the life and liberty of a citizen in the form of fundamental right is not only confined to the extent of curtailment of his physical liberty but concept of life in its extended meanings would include the essential need of life.
Thus, the proper treatment of the disease with which the petitioner is suffering is his fundamental right which cannot be denied in any circumstance and that the detention of the petitioner in Jail without the treatment required by him may either lead to his permanent disability or bring any other serious ailment - to him and , such a situation would definitely be due to the denial of fundamental rights of the petitioner under Articles 4, 9, 10 and 14 of the Constitution of Islamic Republic of Pakistan, 1973.
8. The learned Deputy Prosecutor-General, NAB, on the other hand while opposing this petition has contended as under:--
(1) That the petitioner is also facing prosecution in another Reference in which the proceedings have been completed and only the judgment was to be announced.
(2) That this is correct that the amount in question was sanctioned upon completion of normal process but the petitioner being the Chairman of the C.D.A. While acting as competent authority would ultimately be directly responsible for the misuse of funds and would not escape from the criminal liability on the pretext that the irregularity if any was due to the fault of his subordinates.
Learned Deputy Prosecutor-General has argued that the matter relating to the misuse of the funds by the petitioner would fall within the ambit of section 9(b)(iii) and (iv) of the National Accountability Bureau Ordinance, 1999, and that the defence plea of wrong advice of the subordinates or that the transaction was carried in good faith would not be a ground to contend that the arrest of the petitioner for commission of an offence under NAB Ordinance, 1999, and his subsequent detention in Jail was without lawful authority.
(3) That an act contrary to law even if is done in the official capacity which if involved criminal liability would not be excusable on the ground that it was only an irregularity under the Rules.
(4) That the delay in the conclusion of the trial was not due to the fault of the prosecution rather it happened due to the ailment of Shafi M. Sehwani co-accused of the petitioner. The learned Deputy Prosecutor-General submitted that upon rejection of request of the State for separation of trial of Shafi M.Sehwani from the other accused by the trial Court, a Constitutional Petition filed by the State against the said order was still pending before this Court and that the delay in question was either due to an act of God or an act of Court, which would not provide a valid ground for the grant of bail.
(5) That the provisions of sub-Article (1)(b)(i) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is invokable only in a case in which a person is found in an illegal detention and his liberty is being curtailed in violation of the Constitutional guarantees whereas in the present case the petitioner is facing criminal charge before a Court of exclusive jurisdiction under a special law under which the powers of other Courts including this Court under sections 426, 491, 497, 498 and 561-A, Cr.P.C. Have been taken away by virtue of section 9(b) of the National Accountability Bureau Ordinance, 1999, therefore, the grounds for grant of bail under the above said provisions of law would not as such be available to the petitioner for grant of bail under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The Deputy Prosecutor-General has submitted that the apex Court as well as this Court have not declared the provisions of section 9(b) of the National Accountability Bureau Ordinance, 1999, ultra vires to the Constitution of Islamic Republic of Pakistan, 1973, and despite the law laid down by the apex Court in Khan Asfand Yar Wali's case that bail can be granted by the High Court to an accused of an offence under the NAB Ordinance in its jurisdiction under Article 199 of the Constitution, the ground being taken in support of this petition cannot be considered for declaring the detention of the petitioner illegal or unauthorised.
(6) The learned Deputy Prosecutor-General, however, has not denied the right of the petitioner of proper treatment of his disease in the light of the reports submitted by the Specialist and Consultant Surgeon, Pakistan Institutes of Medical Sciences, Islamabad, as indoor patient in a hospital equipped with the medical facility required for his treatment.
9. There is no cavil to the proposition that the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in a case which is brought before it under Article 199(1)(b)(i) relating to the liberty of a person, is empowered to examine the facts and the information laid it to ascertain as to whether the detenu was not being detained without the proper authority and legal remand or that his detention was lack of bona fide and his liberty was being curtailed without any legal justification. The High Court on a complaint made before it for violation of fundamental rights of a person in exercise of its discretionary jurisdiction while stepping into the matter can pass an order which may be found just, legal and equitable in the facts and circumstances of the case. It is an unalienable right of every person to be treated in accordance with law and to enjoy the protection of law as provided Article 4 of the Constitution.
Under Article 9 of the Constitution the guarantee of life and liberty has been provided to every person and no person can be deprived of such right saved in accordance with law and to protect this right a safe-guard against the arrest and detention of a person is provided under Article 10 of the Constitution. However, the detention of a person under preventive Laws is different to that of the detention of a person as an accused in a criminal case and thus the legality of an act of the curtailment of liberty of a person in the case of preventive detention or detention without being an accused in a case is always questionable before the superior Courts and the High Court in exercise of its Constitutional jurisdiction under Article 199(1)(b)(i) of the Constitution if finds that a person is being kept in an illegal custody can direct his release and similarly under section 491, Cr.P.C. In case of illegal and improper custody can pass an appropriate order. The normal remedy for a person who is under arrest as an accused in a criminal case is to knock the door of the Court under sections 498 and 497, Cr.P.C. For grant of pre/post-arrest bail and after conviction can invoke the provisions of section 426, Cr.P.C. For suspension of sentence and grant of bail. Notwithstanding the bar of jurisdiction of the Court to grant bail including the superior Courts under sections 497, 498 and 426, Cr.P.C. Under a special law, the Constitutional powers of the superior Courts to protect the liberty of a person is not affected. It was consistently held by the superior Courts in the case-law cited by the learned counsel for the petitioner that in suitable wises, the superior Courts can grant bail to a person in its Constitutional jurisdiction. The apex Court in Khan Asfand Yar Wali v.
Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 held as under:- "It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution 'remain available' to their full extent... 'Notwithstanding anything contained in any legislative instrument enacted by the Chief Executive.' Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 and 561-A, Cr.V.C. Or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well-settled that the superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires of the Constitution. Accordingly, the same be amended suitably."
10. There can be no exception to the law laid down by the apex Court regarding the exercise of Constitutional powers by the superior Courts in the matters relating to the liberty of a person.
However, this power is subject to determination of the question as to whether this Court while exercising its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, can also exercise its powers under section 497 read with section 561-A, Cr.P.C. For the purpose of grant of bail to the petitioner despite specific bar of jurisdiction under section 9(b) of the National Accountability Bureau Ordinance, 1999. The apex Court in Asfand Yar Wali's case without declaring the provisions of section 9(b) of the National Accountability Bureau Ordinance, 1999, ultra vires to the Constitution in toto held that the superior Courts have the powers to grant bail under Article 199 of the Constitution independent of any statutory source under section 497, Cr.P.C. And section 9(b) of the National Accountability Bureau Ordinance, 1999, to that extent is ultra vires to the Constitution. In the light of dictum given by the apex Court in Khan Asfand Yar Wali's case and Shahida Faisal's case despite the bar of jurisdiction of the High Court for grant of bail to an accused under National Accountability Bureau Ordinance, 1999, such an accused can be granted bail under Article 199 of the Constitution.
11. In Ch. Zahoor Elahi v. The State PLD 1977 Supreme Court 273, it was held as under:- "So far as the powers of the High Court to grant bail, irrespective of the fact whether there be can appeal on conviction or not are concerned, this deliberate omission should be considered vis-a-vis the mention of section 491 of the Code which authorises the High Court alone to issue a writ in the nature of habeas corpus. The specific mention of section 491 of the Code in section 13 of the Ordinance has the effect of excluding the jurisdiction of the High Court under section 491 of the Code in respect of any proceedings of a Special Tribunal. This exclusion, however, does not affect the jurisdiction of the High Court under section 491 in respect of a person against whom the Special Tribunal has not yet taken cognizance of the case in terms of rule 209(1) of the Rules. This rule says that no Court or Tribunal shall take cognizance of any alleged contravention of these rules or of any order made thereunder except on a report in writing of the facts constituting such contravention made by a public servant. In the case of Gopal Marwari (AIR 1943 Pat. 245) while dealing with section 26 of the Special Criminal Courts Ordinance (II of 1942) which was similar to section 13 of the Ordinance, it was observed that where the appointment of the Special Magistrate was held to be not legal the High Court could interfere under section 491 of the Code of Criminal Procedure and put a stop to the petitioner's detention." In Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 313, the apex Court made the following observation:-- "However, as I have said earlier, my reading of the majority decision in Ghulam Jilani's case to which I am a party, is that it alters the law laid down in Liversidge's case only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98(2)(b)(i) be in turn satisfied that the detention is not being held without lawful authority or in any unlawful manner. The wording of clause (b)(i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be a matter for the Court to decide as to whether the document concerned is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned." In Ch. Manzoor Elahi v. Federation of Pakistan and others. PLD 1975 Supreme Court 66, it was observed as under:-- "While Article 4 embodies provisions of the utmost important to the individual in the matter of his life, liberty, body, reputation and property, his right to freedom of action and immunity from illegal restrain of any kind, yet it does not form part of Part II of the Constitution containing fundamental rights, and, for that reason, any violation of this Article would not bring the case within the four corners of the jurisdiction concerned on the Supreme Court by clause (3) of Article 184 of the Constitution. That jurisdiction has reference only to the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II of the Constitution. Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution, would be fully competent to deal with a case involving violation of the provisions of Article 4 of the Constitution. In the case of Agha Shorish Kashmiri to which reference has already been made by me in another context, the wide scope of the jurisdiction conferred on the High Courts by Article 98 of 1962 Constitution, corresponding to, Article 201 of the 1972 Interim Constitution and Article 199 of the present permanent Constitution, has been fully explained by this Court. In the same case, the full implications of Article 2 of the 1962 Constitution, corresponding to Article 4 of the present Constitution, have also been brought out. This is, therefore, a matter which must be left to be dealt with by the High Court of Sindh and Balochistan in the petition which is still pending there. Article 9 of the Constitution, forming part of the Chapter on Fundamental Rights, is narrower in scope than Article 4 of the Constitution, as it deals only with the security of person, as opposed to many other matters dealt with in Article 4; yet, in content, as regards the subject with which it deals, it carries the same meaning and substance. This Article is comparable to Article 21 of the Indian Constitution, Article 40(4) of the Irish Constitution of 1937. Section 16 of the Constitution of the Union of Burma (1948) as well as to the 5th and the 14th Amendments to the Constitution of the United States of America." In Mrs. Shahida Faisal and others v. Federation of Pakistan and others 2001 SCMR 294, the following observation was made by the apex Court:-- "Learned Deputy Attorney-General has opposed the request and pointed out that jurisdiction of the Courts to grant bail in such matters are expressly barred by virtue of section 9(b) of NAB Ordinance. Section 9(b) on which reliance has been placed is as follows : 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 any person accused of any offence under this Ordinance.' From the bare reading of this section, it is manifest that the Courts other than the Supreme Court are covered under the said section, for it has been expressly mentioned- in this section that the Courts including the High Court shall have no jurisdiction to grant bail. The omission of the words 'Supreme Court' is significant, therefore, jurisdiction of this Court under this section is not barred to grant bail to such persons." In Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283 the apex Court held as under:-- "The principle laid down not only governs the cases of preventive detention but applies to all such cases where detention or arrest has been challenged in the Constitutional jurisdiction of the High Court. The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorised and mala fide acts of omission and commission by any authority or person. In the instant case, the information laid before the High Court was deficient and no substantive material was produced to satisfy it that till then there existed reasonable grounds that the detenu had committed the crime. In fact the statement of two witnesses was not produced which was basis for involving the detenus in a crime committed five months back report of which did not mention the names of the detenus. The prosecution, therefore, failed to produce material statement, which was the basis for the arrest of the detenus. How could in such circumstances the High Court close its eyes to the glaring illegalities perpetuated in the background of the failure to arrest Dr. Imran Farooq. In the circumstances, the High Court was justified td reasonably conclude that the arrest was mala fide and intended to extract information about the whereabouts of Dr. Imran Farooq and therefore exercised its Constitutional jurisdiction in a limited manner by releasing the detenus on furnishing surety bond and leaving the prosecution free to make further investigation, if necessary. The High Court had, thus corrected actions of the Investigating Agencies in the right direction without in any manner interfering with the investigation. These observations find support from the following dictum of Hamoodur Rahman, C.J. In Mst. Shahnaz Begum v. Hon'ble Judges of the High Court Sindh and Balochistan PLD 1971 SC 677:-- 'If an investigation is launched mala fide or is clearly beyond the jurisdiction of the Investigating Agencies concerned, then it may be possible for the action of the Investigating Agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the letter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
12. It is essential to examine the provisions of section 497, Cr.P.C. To ascertain the circumstances under which the bail can be granted in a non-bailable offence. Section 497, Cr.P.C. Is read as under:-- "S.497.--When bail may be taken in cases of non-bailable offences.---(1) When any person accused of non-bailable offence is arrested or detained without warrant by an Officer-in-Charge of a police station, or appears or is brought before a-Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or (imprisonment) for life or imprisonment for 10 years: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of which such an offence be released on bail: Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released: [Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall, be released on bail--
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further that the provisions of the third proviso to this subsection shall not apply to previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism].
(2) It appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it should release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody." This section has two subsections.. The bail under subsection (1) except in the offences, which are punishable with death or imprisonment for life or imprisonment for ten years, bail after hearing the prosecution is normally granted as a general rule. The Court may grant bail to a woman or a person under the age of sixteen years or a sick or infirm person in its discretion. The bail on the statutory ground is also granted under this subsection of section 497, Cr.P.C., whereas under subsection (2) of section 497, Cr.P.C., the Court on the basis of tentative assessment of evidence if comes to the conclusion that there are sufficient grounds for believing that the accused has not committed the offence with which he was being charged and his guilt would require further inquiry, such shall be entitled to be released on bail. The provisions of section 491, Cr.P.C. Being parallel to Article 199(1)(b)(i) of the Constitution of Islamic Republic of Pakistan, 1973, provides as under:-- "S.491.--Power to issue directions of the nature of a habeas corpus.--(1) Any High Court may, whenever it thinks fit, direct--
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that prisoner detained in any Jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) (Nothing in this section applies to persons detained under any law providing for preventive detention).
Section 9(b) of the National Accountability Bureau Ordinance, 1999, excluded the application of sections 497 and 491, Cr.P.C. In the cases under the said Ordinance. The existing section 9(b) of the NAB Ordinance is read as under:- "S.9(b).--All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance." Sub-Article 1(b)(i) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, provides as under:- "199(1)(b)(i).---Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(b) on the application of any person, make an order---
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner."
13. The protection provided to the liberty of a person under Articles 4, 9, 10 and 14 of the Constitution of Pakistan has been safeguarded under sub-Article 1(b)(i) of Article 199 of the Constitution and the High Court for the purpose of satisfaction that a person was not being held in custody without lawful authority or in an unlawful manner may while taking into consideration the facts and circumstances of the case, pass such an order as may found just, legal and equitable. Under Constitutional jurisdiction, the High Court while examining the matter relating to the liberty of a person has the jurisdiction to determine that prima facie, the detention does not lack bona fides, the accusation is not manipulated, the detenu is not being detained without lawful authority and there appears to be reasonable grounds for believing that the detenu is involved in the crime with which he is being charged. If the High Court is satisfied that the action was lawful and was not taken in violation of law and fundamental rights as envisaged under Articles 4, 9, 10 and 14 of the Constitution is not supposed to invoke the discretionary jurisdiction under Article 199 of the Constitution and grant bail to a person declaring his arrest and detention illegal on the ground on the basis of which bail is granted under section 497, Cr.P.C.
14. This may be noticed that as a result of bar of exercise of powers by the Courts of general jurisdiction and this Court under sections 426, 497,498 and 561-A, Cr.P.C. In the cases registered under the NAB Ordinance, 1999, by virtue of section 9(b) of the said Ordinance, the cases have been completely taken over from the Courts of general jurisdiction and the High Court to be remitted to the Court of special jurisdiction and thus the Court of general jurisdiction ceased to exercise their jurisdiction in such cases and in consequence thereto, the Courts of general jurisdiction even have no control over the ancillary matters. However, due to this ouster of jurisdiction of Courts established under ordinary Law, the jurisdiction of the High. Court under the Constitution is not affected and the High Court in its Constitutional jurisdiction can examine the lack of bona fides and misuse of powers, when the question of liberty of a person is involved. It was observed by the apex Court in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 as under:-- "The words 'in an unlawful manner' in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the acceptance forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb. It is in this sentence that an action, which is mala fide or colourable, is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner."
15. If an act is not supported by a reasonable ground for believing that the same is justified under the Statute and could be said to be bona fide, the High Court under Article 199 of the Constitution can declare the act to have been done in an unlawful rummer. The power of High Court to grant bail under Article 199 of the Constitution is not affected due to the exclusion of its jurisdiction under sections 426, 497, 498 and 561-A, Cr.P.C. In the cases under the National Accountability Bureau Ordinance, 1999, and can put a stop to the detention of a person if he is being detained illegally or without lawful authority or unauthorisedly or his arrest and detention is lack of bona fide, but the scope of power under Article 199 of the Constitution cannot be enlarged to extend a detailed analysis of the evidence and the appraisal of facts through deep scrutiny to hold a person innocent and then declare his arrest and detention in a criminal case illegal and without lawful authority to grant him bail. In Syed Muzaffar Hussain v. The State PLD 1974 Lahore 242, the observation made by the then Hon'ble Chief Justice of Lahore High Court, Sardar Muhammad Iqbal being relevant in this behalf is reproduced hereunder:-- "It is manifest that the rule does not contemplate that the Court must hold that the accused person is innocent and then admit him to bail. If this had been the intention, then the very concept of bail under the Defence of Pakistan Rules would be negated. In view of the allegations made in a report against an accused person it may be most difficult, if not impossible, to hold in any case that a person is positively innocent. Moreover, a person cannot be held to be innocent in proceedings for bail because if the Courts are to do so, they will have to scan the whole record and pass judgment, which will indubitably be wrong in a case where truth or falsity of the allegation- is yet to be determined in the light of the evidence which may have to be led. It will be against the fundamental principles of jurisprudence and the concept of justice to permit such a course of action. It is, in fact, the duty of the Court to ensure that nothing is said in the order or judgment which may prejudge an issue, because it may prejudice either of the parties and also affect the objectivity of the judicial officer."
16. The question involved in the present case is that on what ground a person, who is an accused of an offence under National Accountability Bureau Ordinance, 1999, can be granted bail in the Constitutional jurisdiction. The examination of the above-referred leading cases cited by the learned counsel for the parties would show that the principle laid down was that once a case is completely withdrawn from the jurisdiction of Courts established under Criminal Procedure Code and remitted to the Court of special jurisdiction, the said case would remain out of the reach of Courts of general jurisdiction. The Special Courts seized of such cases if are not as such under the control and supervision of the High Court by virtue of Article 203 of the Constitution still the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution can go into the question of legality of an order passed by such a Court of special jurisdiction or by any other authority functioning under the special enactment.
17. In the present case, the petitioner is under arrest in a case under section 9(a)(ii)(vi) National Accountability Bureau Ordinance, 1999, for the allegation of mis-use of his authority as a public functionary, in the matter of sanctioning of funds which were used for landscaping and for construction of polo-ground within the premises of Prime Minister's House, Islamabad. The case against the petitioner is pending in trial before the Accountability Court constituted under the NAB Ordinance, 1999, and under section 9(1) of the above said Ordinance, it is provided that all offences triable under the said Ordinance shall be non-bailable and notwithstanding anything contained in sections 496, 497, 498 and 561-A, Cr.P.C. Or any provisions of Criminal Procedure Code or any other law for the time being in force, no Court shall have the jurisdiction to grant bail to a person who is an accused of a criminal case under the National Accountability Bureau Ordinance, 1999. The bar of jurisdiction under clause (b) of section 9 of the Ordinance is not only confined to the Courts constituted under the NAB Ordinance but it extends to all Courts including the High Court in respect of its powers under sections 497, 498 and 561-A, Cr.P.C. The curtailment of the power of Courts for grant of bail under sections 497, 498 and 561-A, Cr.P.C. Would not debar the High Court to look into the question that the arrest was mala fide., illegal, unauthorised or without lawful authority and that the arrest and detention of a person under NAB Ordinance was suffering from the above mentioned defect to be declared illegal under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The considerations for the grant of bail to a person in non-bailable offences under section 497 being different, the grounds which are relevant for the purpose of sections 497 and 498, Cr.P.C. May not as such be a ground for the grant of bail under Article 199 of the Constitution.
Under section 498, Cr.P.C., a person can be extended the concession of bail before arrest for the consideration different to that of the consideration relevant for the grant of post-arrest bail under section 497, Cr.P.C. And similarly, the powers under section 426, Cr.P.C. Are exercised for different consideration. Under Article 199(1)(b)(i) of the Constitution of Islamic Republic of Pakistan, 1973, the High Court while exercising the powers of judicial review and can examine the question relating to the liberty of a person who is under detention and the consideration for exercise of such power under Article 199 of the Constitution are whether the detention is not bona fide and the detenu was not being kept in custody without lawful authority or his custody was illegal, unauthorised or he was being kept in an unlawful manner. And if any of such ground is available, notwithstanding the bar of jurisdiction under sections 497 and 498, Cr.P.C. This Court can protect the liberty of a person under Article 199 of the Constitution even if he is detained as an accused in a criminal case, if the Court is satisfied that any of the ground referred above does not exist in the case and there are reasonable grounds for believing that the person under detention is involved in the crime with which he is being charged, it will not interfere in such case in its Constitutional jurisdiction through the import of a ground which can only be relevant for the purpose of sections 497 and 498, Cr.P.C.
The exercise of powers by the High Court under sections 497/498, Cr.P.C. And the exercise of powers, under Article 199 of the Constitution are independent to each other and the High Court while exercising powers under sections 497/498, Cr.P.C, can take notice of any illegality in exercise of its Constitutional jurisdiction under Article 199 of the Constitution but while dealing a matter relating to the liberty of a person in its Constitutional jurisdiction it is difficult to substitute the Constitutional petition into a petition under sections 497/498, Cr.P.C. And grant bail to a person by declaring him innocent through assessment of evidence. In Ch. Zahoor Ellahi's case PLD 1977 SC 273 it was observed by the apex Court as under:-- "The High Court under Article 199 of the Constitution has unquestionably this power and should exercise this jurisdiction when the question of liberty of a citizen is involved even when the High Court has before it only application under section 498, Cr.P.C."
18. It cannot be denied that in a case in which it appears that there was a criminal action against a person and such action can be termed as mala fide, this Court in such circumstances in its Constitutional jurisdiction can release a person on furnishing bail bonds. There is also no cavil to the proposition that the Court while considering a bail application has to tentatively look into the facts and circumstances of the case and if it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-cognizable offence, the Court in its discretion can release the accused on bail. However, for the purpose of ascertaining the question whether reasonable ground exists or not, the Court is not supposed to go into the merits of the case, rather it has to confine itself to make an assessment that the evidence available in the hands of the prosecution even if is believed would not lead to an inference of guilt.
19. In the present case, learned counsel with reference to the documents placed on record pleaded that even if the allegations as such are proved, it would not result in the ultimate conviction. The question that the allegation against the petitioner for misuse of powers in the discharge of his official duty is not sustainable on the basis of evidence in the hand of the prosecution, cannot be answered without the detailed scrutiny of evidence and thus on the basis of material placed on record, it-is, difficult to ascertain that prima facie there are reasonable grounds to believe that the accused has not committed the crime with which he was being charged. The documents placed on the record and the information raid before the Court in support of the contentions would be relevant to the defence plea of the accused that he while discharging the official function in accordance with the Rules has committed no offence, but the material on the basis of which the prosecution was proceeding against the petitioner would apparently suggest that there were reasonable grounds for believing that the accused has committed a non-cognizable offence or that the arrest and detention under National Accountability Bureau Ordinance, 1999, was not suffering from the defect of mala fide or that it was unauthorised and illegal, or that there was no evidence to constitute an offence under the said Ordinance.
20. The present case in the light of the case given facts will not qualify the test for interference of this Court and grant of bail to the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan.
21. The petitioner has also sought bail on medical ground. In view of the health condition of the petitioner and the nature of disease and the treatment being required as advised by the Specialist and Consultant Surgeon through the reports submitted by the doctors under the direction of the Accountability Court and the reports that there is no proper arrangement for the treatment of the petitioner in the Jail Hospital, the Deputy Prosecutor-General has not denied the right of the petitioner of treatment as indoor patient in some hospital other than the jail hospital. He has also not offered any explanation that why the petitioner was not being provided the treatment as per advice of the doctors. It is the duty of the State to protect the life of a person under arrest and this.
Court while keeping in view such rights of the citizens can pass an appropriate order in the suitable cases. The petitioner while confined in Jail is entitled to be provided the treatment required by him for the disease with which he is suffering. I, therefore, direct that the Superintendent Jail in the light of the opinion of the doctors shall make necessary arrangement of shifting of the petitioner to a hospital, preferably Pakistan Institute of Medical Sciences, Islamabad, for treatment.
22. For the foregoing reasons and with the above direction, this Constitutional petition is dismissed as notice case with no order as to costs.