MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 2-12-2002 through which a Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi disposed of two separate Constitutional petitions on the same subject.
2. The petitioner and his co-accused namely Shafi Sehwani, Mrs.Roohi Farzana and Aitezaz Ahmed Khan Niazi are facing trial before Accountability Court No,3 Rawalpindi, in a Reference bearing No,52 of 2001 filed by the Chairman. National Accountability Bureau against them under section 18(g) read with section 24 of National Accountability Bureau Ordinance, 1999 (hereinafter called the Ordinance') for the allegation of committing an offence under section 9(a)(iv) and (vi) punishable under section 10(b) of the said Ordinance. The petitioner and Aitezaz Ahmed Khan Niazi filed separate Writ Petitions bearing Nos.2757 and 2756 of 2002 respectively in the Lahore High Court, Rawalpindi Bench, Rawalpindi, for grant of bail and a learned Division Bench of the High Court, vide impugned judgment dismissed the Writ Petition No,2757/2002 and refused bail to the petitioner whereas allowed Writ Petition No,2756 of 2002 and granted bail to Aitezaz Ahmed Khan Niazi. The prosecution case as set up in the reference is that Shafi M. Sehwani the principal accused in his capacity as Chairman, Capital Development Authority (CDA), Islamabad, acquired huge properties and assets, detail of which is given in the reference, in his own name and in the name of his co- accused including the present petitioner in disproportionate to his known source of income and thereby he and his co-accused by acquiring the properties through corruption and corrupt practices, committed an offence under section 9 of the Ordinance. The precise allegation against the present petitioner is that he was holding in his name, Plot Nos.3 and 3-A, Sector 1-10/3, Islamabad Plot No,4 in F-7/3, Margalla Road, Islamabad and in addition thereto also made investment in the business of shares in the stock exchange. The petitioner allegedly did not disclose the above properties in the income tax return submitted by him for the relevant period in the Income-tax Department and instead made a declaration that he being patient of T.B. Was not engaged in any business or service which would be the direct evidence of the illegal character of the properties and assets. The learned Judges of the Division Bench in the High Court, without expressing any opinion on the explanation offered by the petitioner regarding the source of the properties and assets refused bail to him, with the observation that there were reasonable grounds to believe that petitioner has committed the crime with which he was being charged.
3. Mr. Farooq H. Naek, Advocate Supreme Court, learned counsel for the petitioner has contended that the two plots bearing Nos.3 and 3-A, I-10/1, Islamabad were also subject matter of the charge in References Nos.28 and 29 of 2002 tiled by the Chairman National Accountability Bureau against the petitioner and his co-accused in which the petitioner was allowed bail and that there was no legal justification to tile .a fresh Reference (No,52 of 2001) on the basis of same evidence. The learned counsel argued that so far as Plot No,4, F-7/3, Margalla Road, Islamabad, is concerned there was ample documentary evidence in proof of its purchase by the petitioner for a sum of rupees ten lacs in 1984 from one Ahmed Bayat and that after constructing house on the said plot, sold it in 1988. The learned counsel asserted that there was sufficient evidence to show that from the sale consideration of the said plot petitioner made investment in the business of stock exchange and except the alleged income tax return in the record of Income-tax Department, there was not an iota of evidence direct or circumstantial with the prosecution in proof of the charge against the petitioner and that in fact the petitioner was made accused in the case because he was closely related to Mr.Shafi M.Sehwani. The learned counsel lastly argued that the case against the petitioner is not distinguishable on merit to that of Aitezaz Ahmed Khan Niazi, who has been allowed bail by the High Court, therefore, there was no justification for treating him differently.
4. Mr.Muhammad Ilyas Siddiqui, Advocate Supreme Court, representing Prosecutor General, National Accountability Bureau, without contradicting the factual position narrated above by the learned counsel for the petitioner according to which out of three properties (Plots) subject matter of Reference No,52/01, two plots already formed part of the charge References Nos.28 and 29 of 2002, contended that in absence of a plausible explanation for not disclosing of the immovable and moveable properties in the income tax return, the concealment of assets would manifestly establish the commission of an offence under the National Accountability Bureau Ordinance, 1999 and that the case against the petitioner being distinguishable on merits to that of Aitezaz Ahmed Khan Niazi who has been allowed bail by the High Court, he would not be entitled to the grant of bail on the basis of rule of consistency.
5. It is not denied that the two plots bearing Nos.3 and 3A, Sector 1-10/3, Islamabad, were made basis of the charge in References Nos.28 and 29 of 2002 in which the petitioner was on bail. In the Reference No,52 of 2001 in addition to above said two plots another plot bearing No,4, F-7/3, Margalla Road, Islamabad, has been included in the schedule to properties for the purpose of framing the charge under section 9(a)(iv) and (vi) of the Ordinance. This is settled proposition of law that one cannot be tried and punished twice for the charge based on the same allegation and evidence in the same transaction. There can be no bar in tiling the separate references in the separate transactions involving the similar allegation but one cannot be charged for the second time for the same allegation on the basis of same evidence. Suffice it to say that separate trial in more than one references of similar nature relating to the separate transaction can continue but in the light of rule that one should not be vexed twice for the same cause the prosecution of the petitioner on the basis of same allegation and same evidence in more than one reference would not be legal. Be that as it may, Reference No,52 of 2001 even with the exclusion of the plot, subject matter of References Nos.28 and 29 of 2001, could independently proceed on the basis of allegation that Plot No,4, Margalla Road, F.7/3, Islamabad, was ill-gotten property. However, the perusal of documents placed on record in support of the legal character of this plot would create a reasonable doubt about the correctness of the allegation and consequently, in absence of any other evidence, it would be difficult to form an opinion at this stage, That the petitioner by making concealment of assets in the income tax return and supplying incorrect information to the Income- tax Department, committed the offence with which he was being charged or the concealment was made with the intention to evade the income tax. It is the fundamental principle of criminal administration of justice that unless the prosecution prima facie,satisfies the Court about the culpability of a person, the bail to him cannot be withheld merely on the basis of presumption of guilt and the essential question for determination in such circumstances would be regarding the true character of the transaction and the nature of offence which was allegedly committed, therefore, unless in the light of evidence in the hands of prosecution, the case is brought within the parameters of expression ' reasonable grounds' to believe that the offence with which a person was being charged was committed by him, the bare accusation would not be sufficient to curtail his liberty. This Court in Khan Asfandyar Wali & others v. Federation of Pakistan through Cabinet Division, Islamabad and others ( PLD 2001 SC 607) held that the High Court in exercise of its Constitutional jurisdiction is empowered to grant bail to a person facing prosecution for an offence under the NAB Ordinance, 1999 and obviously all those grounds which are relevant for grant of bail under the ordinary law, can equally be considered to grant of bail in the Constitutional jurisdiction.
The relevant portion of the above referred judgment is reproduced hereunder:- "197. It was held in the case of Zafar All 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 alt Court, including the High Court, the jurisdiction under sections 426, 491, 497, 498 and 561-A 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 wires the Constitution." (Underlining is by us to provide emphasizes).
6. The grant of bail in Constitutional jurisdiction by the High Court is entirely discretionary but there can be no deviation to the rule that discretion should not be exercised in violation of recognized principles of justice and if it is exercised Only on the basis of presumption, inference, suspicion or bare allegation, it would defeat the very purpose of discretion. The High Court, in exercise of its discretion, should not proceed in departure to the recognized principles and in case such an error is committed, the Supreme Court is always empowered to interfere in the matter in the interest of complete justice. The law does not permit to detain the people in jail only on the basis of presumption and suspicion of commission of criminal acts,therefore, it is the duty of Court to administer the justice. Prevent the abuse of law and protect the liberty of people. The High Court while considering the question of bail in its Constitutional jurisdiction can examine the nature of allegation on the basis of tentative assessment of the evidence in the hands of prosecution to ascertain prima facie, the question of guilt or innocence of an accused for the purpose of grant or refusal of bail and without expressing on the merits of the case, lest it should prejudice the accused or prosecution. Should exercise discretionary jurisdiction in the interest of administration of justice.
This is settled law that bail cannot be claimed as a matter of right but there can also be no departure to the rule that bail in non-bailable offences should not be withheld as punishment, therefore, the High Court while dealing with the question of bail in its Constitutional jurisdiction must consider it carefully and weighed in the scale of justice. The reasonableness of the grounds for withholding the bail to person accused of a non-bailable offence must be shown through the material and merely a suspicion may be sufficiently strong, is not enough to refuse the bail. There can be no cavil to the proposition that the High Court may or may not interfere in a matter in its discretionary jurisdiction but refusal to interfere must not offend the spirit of law and cause of justice as the object of exercise of discretionary jurisdiction is always to foster the justice, preserve the rights and protect the liberties. This Court in Manzoor and 4 other v. State (PLD 1972 SC 81) held as under:-- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him. But no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
7. The refusal of bait by the High Court in its Constitutional jurisdiction merely for the reason that the concept of discretion for grant of bail under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 is different to that of under sections 497/498 Cr.P.C, is not proper. The discretion of High Court under the Constitution and under ordinary law in bail matter is based almost on same principle.
8. The perusal of the record show that the petitioner and Aitezaz Ahmed Khan Niazi, his co-accused, while facing the same charge based on the same allegation, subject to the scrutiny at the trial, in the light of evidence yet to be recorded, stand at par to each other and apparently the case against the present petitioner is not distinguishable on merits.
Consequently, in the light of rule of consistency, the petitioner would also be entitled to the concession of bail.
9. For the foregoing reasons, we convert this petition into an appeal and grant bail to the petitioner in terms of the short order dated 6-3-2003 which is made part of this judgment. This appeal is allowed with no order as to costs.
…and 3 more citing cases