1. ' 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 22-3-2002 passed by a learned Single Judge of Peshawar High Court, Peshawar, in Criminal Miscellaneous No,17 of 2001 filed by the present petitioner for grant of bail in a case registered against him under NAB Ordinance, 1999.
2. ' Facts giving rise to this petition in small compass are that petitioner was arrested on 13-4-2001 under the directions of Chairman, National Accountability Bureau (NAB) for the allegations that he accumulated immovable properties/assets of huge value in his name and in the name of his father, brothers, sons and dependants as Benamidars which are disproportionate to his known source of income and thereby he committed an offence of corruption and corrupt practices as defined in section 9 of NAB Ordinance, 1999 which is punishable under section 10 of the said Ordinance. The reference under the above Ordinance was submitted against the petitioner before the Accountability Court No,3, Peshawar and pending conclusion of the trial, the petitioner moved an application under section 497, Cr.P.C. Before the High Court for grant of bail mainly on the ground that out of 40 witnesses only twelve were examined by the prosecution by that time and no incriminating material against the petitioner was traceable in the statements of these witnesses. It is argued by the learned counsel that sufficient time shall be consumed in recording the statements of remaining prosecution as well as the defence witnesses, therefore, the conclusion of the trial within the reasonable time is not possible. It was also argued that major portion of the properties mentioned in the list attached with the Reference was purchased by the petitioner when he was not holding the public office and the remaining properties included therein were owned by his brothers and father therefore, charge against him was groundless. Learned counsel for the petitioner has contended that the tentative assessment of the prosecution evidence would show that there were sufficient grounds for further inquiry into the guilt of the petitioner. Learned Additional Advocate-General, N.-W.F.P., while opposing the bail application contended that the properties were acquired by the petitioner either while holding the office of councillor or after he seized to hold- the said office and thus there were reasonable grounds to believe that the petitioner had committed an offence under the NAB Ordinance, 1999.
3. ' The learned Single Judge in the High Court without touching the merits of the case dismissed the bail application vide order dated 22-3-2001 with observation that trial was in progress and the prosecution was not responsible for the delay in conclusion of the trial.
4. ' The learned Additional Advocate-General has informed us that the statements of 22 prosecution witnesses have already been recorded and only 10 witnesses were left to be examined. The major ground urged before us for grant of bail is that prosecution has not produced a single witness to substantiate the charge. The question whether the properties owned by the petitioner were purchased by the petitioner before entering into public office or after expiry of the tenure of the said office and the properties in the name of his father, brothers and other relatives were Benami or they were owner of said properties in their own right need not to be gone into by us at this stage as the expression of an opinion in any manner is not proper so that no party should be prejudiced at the trial. The learned counsel when was confronted that how the bail application under section 497, Cr.P.C. Was maintainable before the High Court, he in the light of amended section 9(b) of the NAB Ordinance, 1999 argued that such an application under section 497, Cr.P.C. Would be maintainable before the High Court but he as an abundant caution, had made a prayer before the High Court that if the bail application under section 497, Cr.P.C. Was not maintainable, the same be treated as a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel submitted that all the grounds which are relevant for grant of bail under section 497, Cr.P.C. Can be considered for grant of bail under Article 199 of the Constitution. The reliance has been placed on the judgment delivered by one of us (Muhammad Nawaz Abbasi, J.) as Judge of the Lahore High Court in the case of Muhammad Saeed Mehdi v. State (PLD 2002 Lahore 124) wherein, in the light of law laid down by this Court in Khan Asfand Yar Wali v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) it was held as under:-- "10. There can be no exception to be 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.
5. 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 powers to grant bail under Article 199 of the Constitution independent of any statutory source under section 497, Cr.P.C.
6. 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.
7. ' Bureau Ordinance, 1999, such an accused can be granted bail under Article 199 of the Constitution..
13. The protection provided to the liberty of a person under Articles 4, 9, 10 and 14 of the Constitution of Pakistan has been safeguard 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 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 in its Constitutional jurisdiction can examine the lack of bona fides.
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 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.
8. ' The considerations relevant for the purpose of grant of bail under section 497, Cr.P.C. May also be relevant for seeking such concession in a Constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 but the effect of omission of words "High Court" in unamended section 9(b) ibid, through Ordinance No,35 of 2001 dated 10-8-2001 would not entitle a person facing prosecuton under NAB Ordinance, 1999, to invoke the jurisdiction of High Court under sections 497, Cr.P.C. And 498, Cr.P.C. The re-constituted 9(b) of the NAB Ordinance 1999 in the light of law laid down by this Court in Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) rend, under:-- ' "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 shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
9. ' We may point out that the use of word "notwithstanding" in the said section would still exclude the applicability of section 497, Cr.P.C. In cases under NAB Ordinance, 1999. However, as held in the above said judgment, the power of High Court for grant of bail in writ jurisdiction would be available and an accused of an offence under NAB Ordinance, 1999 is at liberty to take any ground for grant of bail on the basis of which bail can be granted under section 497. Cr.P.C. The conclusion is that even after amendment in section 9(b) of NAB Ordinance 1999, the legal position regarding the maintainability of a bail application under section 497, Cr.P.C. In a case under the said Ordinance was not changed.
10. ' This Court in Ch. Zulfiqar Ali v. State (Criminal Petition No,827-1/2001) (PLD 2002 SC 546) held as under:-- ' "It is pertinent to point out here that in pursuance of the judgment of this Court in case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) certain provisions of NAB Ordinance were declared to be ultra vires of the Constitution, relevant paragraph were from with regard to bail granting power of the High Court is as under:-- ' 'It was held in the case of Zafar All Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution 'remained 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 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 any 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 the Constitution, accordingly, the same be amended suitably' ."
11. ' Consequently, Ordinance XXXV of 2001 was promulgated, section 8 whereof amended subsection
(b) of section 9 of the Ordinance, in that, after the word "Court" the words "including the High Court" were omitted and after omission of the said words, the existing clause (b) of section 9 of the Ordinance reads as follows:-- ' "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 shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
12. ' After the amendment, the jurisdiction of the Accountability Court for grant of bail remained ousted whereas the omission of the words 'including the High Court' the High Court has jurisdiction to grant bail in NAB cases under Article 199 of the Constitution as held in the case of Khan Asfandyar Wali v.
13. Federation of Pakistan (supra).
14. ' Unamended section 9(b) of the NAB Ordinance reads as under:-- ' "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 including the High Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
15. In amended section 9(b) of NAB Ordinance, 1999, except the omission of word 'High Court' no change was made, therefore, the legal position regarding the maintainability of bail application under section 497, Cr.P.C. Before the High Court in, the case under NAB Ordinance 1999 would remain as such and an accused of such an offence cannot maintain a bail application before the High Court under section 497, Cr.P.C.
16. ' The learned Additional Advocate-General, has informed us that the trial in the present case is in progress and prosecution intends not to examine all witnesses mentioned in calendar of witnesses and that expectedly the trial shall be concluded shortly. On the other hand, learned counsel for the petitioner submits that the conclusion of trial in the near future is not possible as the petitioner also intends to produce quite sufficient number of witnesses in his defence. Be that as it may, we without commenting upon the merits of the case, dispose of this petition with the observation that the trial Court should make efforts for conclusion of the trial within four months. However, the petitioner may, if so advised, approach the High Court in its Constitutional jurisdiction for grant of bail on any ground available to him and if such a petition is moved by the petitioner, the High Court should decide the same at an early date on its own merits without being influenced by the order dated 22-3-2002 impugned in the present petition by virtue of which the bail application of the petitioner was dismissed by a learned Single Judge of the Peshawar High Court, Peshawar. The bail application of the petitioner was not maintainable under the NAB Ordinance, therefore, the same stands dismissed being coram non judice and the order passed thereon stands set aside. This petition is converted into appeal and allowed with the above observations.