S.ALI ASLAM JAFRI, J.--- This is second bail application on behalf of applicant Jamil A. Durrani who alongwith principal accused Badar Alam Bachani, co-accused Riazur Rehman Hashmi and absconding accused Colonel (Rtd.) Aftab Ahmad, the then Station Commander Cantonment Board, Hyderabad, has been sent-up before the Accountability Court No,II by the Chairman, NAB to stand trial in Reference No,35 of 2001 for offences under sections 18(g) and 24(b) of the NAB Ordinance, 1999. Previous Bail Application No,1454 of 2001 filed on behalf of the present applicant was rejected by this Court on 13-12-2001 whereafter this application has been filed on 29-5-2002 in view of some new grounds and subsequent developments in the case.
2. The allegation against the present applicant is that he in collusion with co-accused named above obtained contract for construction of a residential-cum-commercial complex, namely, Quaid-e-Azam Shopping Centre in Hyderabad in pursuance of tender notice published by Cantonment Board, Hyderabad in various newspapers of country including daily 'JANG', Karachi despite there being a ban imposed by the Government for launching any cantonment project on self-financing basis and, as such, caused substantial loss of Rs,7,00,00,000 (Rupees Seven Crores) to the Cantonment Board, Hyderabad fraudulently and dishonestly through illegal and corrupt practices, Such act of the applicant according to the prosecution falls under section 9 of the NAB Ordinance, 1999 which is punishable with imprisonment up to 14 years or with fine or with both and further liable for forfeiture of the assets and properties obtained through such corrupt practices.
3. Mr. Khalid Anwar, learned counsel for the applicant, in support of his plea for bail has argued that he is fully conscious of the fact that earlier bail application filed on behalf of the applicant was rejected on merits, but according to him certain subsequent developments have taken place which now justify grant of bail to the applicant. His first contention is that the applicant was a contractor and his bid in response to the offers/tenders invited through public notices published in various daily newspapers including daily 'JANG', Karachi dated 13-10-1995 was approved by the Cantonment Board and not any individual but the Members of the Cantonment Board have not been named or sent up to stand trial in this reference as accused and, as such, a policy of pick and choose has been adopted by the Chairman, NAB which is against fundamental rights of a citizen guaranteed under Article 25 of the Constitution of Pakistan. He has further pointed out that even otherwise ex post facto sanction of the contract was accorded by the competent authority which is evident from the Letter No,10/2/Budget/ML&C/96 dated 1-10-1996 issued by the Ministry of Defence, Government of Pakistan, Rawalpindi, duly signed by Assistant Director-General (Budget). Another letter of even number dated 25th October, 1998 signed by Deputy Director-General (HQ), Rawalpindi, has also been placed on record to show that the competent authority by granting ex post facto sanction had decided to allow Cantonment Board, Hyderabad to permit the completion of remaining construction of the Quaid-e-Azam Plaza by M/s. Progressive Engineers, Hyderabad, as per terms of agreement in the interest of Board and sub-lessees who had booked the shops, flats, clinics, etc. In the said plaza and were suffering due to delay. The Cantonment Board, was, therefore, allowed by the competent authority to execute subleases in favour of the sub-lessees.
Mr. Khalid Anwar has, therefore, vehemently urged that the said letter clearly shows that contract which was based on self-financing scheme was approved by the Government of Pakistan. In order to show that construction of various projects on self-finance basis has remained the policy of the Government and at various occasions even ex post facto sanction has been accorded as in this case and such policy is still in existence. Mr.Khalid Anwar has placed on record copy of public notice issued/published on 16-11-2001 under the signature of Brigadier Saulat Abbas. Director- General, Pakistan Sports Board, Islamabad, inviting applications alongwith proposals from interested leading contractors/companies on self-financing basis to construct Sports Complex at Karachi.
4. Mr. Khalid Anwar had further referred to a document/No Demand Certificate placed on record to show that an amount of Rs,32,64,104 has already been paid by the applicant as an, amount of penalty to the Board for certain deviations/alterations in the construction of the project apart from enhancing the amount of premium and rent. Learned counsel has also argued that after rejection of the earlier bail application of the present applicant by this Court on 13-12-2001, certain other events have taken place inasmuch as on 19-1-2002 proceedings against principal accused Badar Alam Bachani have been stayed by the Accountability Court No,II, Karachi, in this very Reference No,35 of 2002 as well as in another reference being No,34 of 2001 on the ground that the said accused was already tried and convicted for the said charge in Reference No,6 of 2001 hence in view of the provisions of sections 235 and 403, Cr.P.C. And Article 13 of the Constitution he could not be tried again for the same offence hence the trial of the applicant is also not within sight in near future. He has further argued that proceedings against co-accused Riazur Rehman Hashmi who is also on interim pre-arrest bail have also been stayed by this Court in a criminal miscellaneous application filed by him and that the present application has also filed Criminal Miscellaneous Application No,67 of 2001 resulting in stay of the proceedings against him as well.
5. Mr. Muhammad Anwar Tariq, learned DPGA, has not controverted the above stated factual aspect of the matter but has opposed to the grant of bail on the ground that earlier bail application was -rejected on merits and there is no fresh ground for filing this bail application. He has further pointed out that State/NAB has filed criminal revision before this Court against the order of the Accountability Court No,II, dated 19-1-2002 staying the proceedings against accused Badar Alam Bachani in Criminal References Nos.34 and 35 of 2001.
6. In support of his plea for bail Mr. Khalid Anwar has referred to the case of Abdul Qadir v.
Federation of Pakistan and others 2002 SCM R 1478 to show that in somewhat identical type of case where advertisements were published in the press inviting tenders/proposals from the experienced developers/builders to design, build and rent out constructed buildings on various vacant plots/old buildings of the Sindh Provincial Cooperative Bank under Self-Financing Scheme with an ultimate aim of generating maximum income and the offer made by the builders/developers/accused was considered by the sub-Committee of the Board of Directors, bail was granted to the accused/contractor. The relevant observation made by the Hon'ble Supreme Court is reproduced as below:-- ".... ....The record suggests that the loss to the Bank, if any, was caused by the Board of Directors itself who decided to sell the building to the Company at the price fixed by it. It may be mentioned here that the Bank is registered under Sindh Cooperative Societies Act, 1916 (since repealed under the Act of 1925) and under Bye-law No,38. Of its, Bye-laws, the power to do entire business and affairs of the Bank including its management and transactions, vested in the Board of Directors as such, it was obligatory on it to safeguard and protect the interest of the Bank. If any loss has been caused to the Bank in building project or in sale transaction, its responsibility primarily lies on its Board of Directors as it was in a dominating position either to award or refuse the contract of construction and in case the Bank was likely to suffer loss, it should not have offered the sale of the property, to the Company on the price fixed by Board itself, whereas the position of the Company was secondary as it was firstly a seeker of contract of construction and secondly, a purchaser of the building on the terms and conditions of the Bank. In these circumstances it looks very strange and surprising that those who were at the helm of affairs and authorities, have not been made answerable but those who were subject to authority have been nabbed.
7. Placing reliance on the same authority as well as the case of Muhammad Rafiq alias Rafiq Ahmed Qadir and another v. The State 2002 PCr.LJ 1845 and an unreported judgment from a Division Bench of this Court in the case of Asif Baig v. The State C.P. No,D-1283 of 2001, the learned counsel has urged that bail is not to be withheld as .a punishment and nobody can be kept under incarceration for an indefinite period. In this context he has again drawn our attention to the observations of the Hon'ble Supreme Court in the case of Abdul Qadir (supra) which are reproduced as below:-- "13. In view of the above, we are of the view that the detenu has made out a case for his release on bail and moreso when it is settled law that bail cannot be withheld as a punishment and he cannot be kept in jail for an indefinite period. Consequently, we convert this petition into appeal, allow the same, set aside the impugned judgment of the High Court and order that Muhammad Rafiq, the detenu son of the petitioner be released on bail in the sum of Rs,2,00,00,000 with two sureties each in the like amount to the satisfaction of the trial Court."
7. We have given due consideration to the arguments of the learned counsel for the parties and have gone through the record of the case with their assistance. Though, section 369, Cr.P.C. Is not applicable to the bail applications as held in a number of authorities by the Hon'ble Supreme Court of Pakistan and in this context reference can be made to the case of Guizar Hussain Shah v.
Ghulam Murtaza and 4 others PLD 1970 SC 335 but there must be some justification for the second or successive bail applications. We are in agreement with the view expressed by Mr. Khalid Anwar, learned counsel for the applicant, that there are certain happenings and the developments in the case after rejection of the earlier bail application on 1342-2001. We find that proceedings have already been stayed against C principal accused Badar Alam Bachani by the trial Court against which order State has filed revision before this Court which is yet to be decided. We also find that accused Colonel (Rtd.) Aftab' Ahmad is still absconding and co-accused Riaz A. Hashmi, the Project Engineer, is on interim pre-arrest by this Court and the proceedings against him have also been stayed by this Court in a criminal miscellaneous applications filed by him. The present applicant has also sought such relief for quashment of proceedings against him and proceedings against him too have been stayed. We find force in the contentions of Mr. Khalid Anwar that prima facie a policy of pick and choose appears to have been adopted by the NAB Authorities by not including the members of the Board as accused in this reference. The applicant is in jail for last more than nineteen (19) months and the trial is not within sight in near future. It is cardinal principle of law that bail cannot be withheld as a punishment and nobody can be kept in jail for indefinite period as held in the case of Abdul Qadir (supra), therefore, we feel inclined to hold that under these circumstances a case for grant of bail has been made out. We would', therefore, grant bail to the applicant Jamil A. Durrani on his furnishing two sureties in the sum of Rs,1.00 million (Rupees one Million) each and P.R. Bond in the like amount to the satisfaction of'the trial Court.