Petitioner is facing trial in Accountability Reference No,8/2002. Through this Constitutional petition, he has sought his release on bail.
2. The prosecution story as given in the afore-referred Reference is as under:-- "2. That report of the investigation reveals that the accused Khan Haroon Rasikh misused his authority so as to gain benefit and favour for himself by indulging in following corrupt practices and caused loss to the tune of Rs,28,59,241 to the exchequer:
(a) That as CEO, Lahore, the accused got the approval to establish a Housing Colony known as 'Eden Avenue' Phase-1(204 Kanals, 13 Marlas) on Army requisitioned land from the Cantonment Board as well as DML&C Lahore without getting NOC from MEO, Lahore and the local Military Commander in violation of section. 181(3) Cantonments Act, 1924 and Policy Letters Nos.DY/1455- 23/88 dated 20-12-1988 of Ministry of Defence, JS/P/1473 dated 7-4-1985 of JS HQ and 3619/24/Qtg-1 dated 30-8-1992.
(b) That in the year 1996, the accused as DMLC, Lahore illegally and without any lawful justification adjusted the land which was in the use of Army since long towards 20% of the land in lieu of premium of the House No,43 allotted to one Akhar. Moreover the accused without any lawful justification reduced the amount of development charges from Rs,150 sq.Yds. To Rs,120 sq.Yds, already paid by the allottee and refunded the balance amount through cheque dated 29-7-1997 and caused loss of Rs,6,82,605 to the State.
(c) That the accused as CEO, Lahore in the year 1993-94 accorded the permission to establish a school in Bungalow No,47, Tufail Road, Lahore for commercial use to an unauthorized applicant and did not take action when a complaint was received for the illegal use of the premises.
(d) That in the year 1994, the accused while occupying the Cant. House, 39, Sarwar Road Lahore with mala fide intention and in order to get an illegal benefit got constructed two-bed rooms worth Rs,2 lacs adjacent to the said house without any approval from the competent authority.
(e) That in the year 1998, the accused while DML&C living in House No,183/2, Munir Road, Lahore.
Dishonestly and without any lawful justification merged the adjacent old guest house of Cantt.
Board with his residence for the garment workshop of his son Shehryar and thus gained an undue benefit. An amount of Rs,1,91,636 is still outstanding on account of rent and bills of electricity and Sui gas.
(f) That in the year 1999, the accused dishonestly and with an ulteriormotive refunded an amount of Rs,5 lacs to Abdul Jabbar (bidder) which was previously forfeited in favour of State in respect of Toll Tax Plaza, Okara and this was done without any lawful justification in order to cause wrongful gain to the said bidder and thus caused wrongful loss to the exchequer.
(g) That in June, 1990, the accused while posted as MEO, Peshawar illegally and with mala fide intention changed the purpose of Hall located on the first flour of Cant. Plaza, Peshawar from restaurant to store/show rooms and caused a loss of Rs,14.85 lacs to the Cantonment Board, Peshawar and an undue benefit to the bidder.
(h) That in the year 1987, the accused with mala fide intention issued the NOC of old grant property located as 7, 7-A and 8 (Silver Grill Restaurant), the Mall Rawalpindi himself without referring the matter to the department in violation of the- instruction issued by ML&C Department.
3. That the accused remitted US $ 2,63,480 ($ 2,28,480 in 1992 $ 35000 during August-October 2001) to brokerage house 'Charles Schawab' San Francisco, USA and it is estimated that accused may have remitted one million to 1.5 million US Dollars to his foreign account and further probe in his overseas investments is still in process.
4. That during the year 1985-2000, the accused got allotted/purchased 15 plots in his name or in the name of his dependents (list attached) and sold the same. Prior to 1985, the accused had purchased and sold 5 plots. The accused constructed a House No,215 Sector W-DHA, Lahore in 1999-2000 in an area of 1000 sq. Yards on a plot purchased for Rs,2.18 lacs. In the year 1989, House No,2, St.No,9, F-7/3, Islamabad was purchased in the name of wife of accused for Rs,16 lacs. The accused also purchased and sold following houses:
(a) Purchased 1 x Flat (Sea View Apartments) in his own name in 1979 for Rs,3.8 lacs and sold in 1998 for 22.5 lacs.
(b) Purchased 1 x Flat (Sea View Apartments) in his own name in 1979 for Rs,3.8 lacs and sold in 1998 for 22.5 lacs. Purchased 3 x units with basement and a flat each in his own name in 1-10 Markaz, Islamabad in 1987 for Rs,19 lacs and sold in 1988 for Rs,23 lacs.
' The above Transactions show that the accused had been indulging in trade of purchase and sale of properties in violation of Government Servants Conduct Rules and derived pecuniary advantage of approximately Rs,16.5 million.
5. That accused is the owner of Cars No,A. 2211 Hyderabad Sindh Model 1962 (Porshe) and LOT 104 Toyota Cressida. Car No,LXX 8844 Santro Model 2001 has been taken on lease from Orix Leasing in the name of his son Shehryar. Car No,LXV 5619 Toyota Corolla Model 2000 has been taken on lease from Orix Leasing in the name of his wife. Car No,LXX 6602 Suzuki Cultus Model 2000 has been taken on lease from Orix Leasing in the name of his son Mahryar Khan.
6. That the accused maintained 25 accounts with different banks. 16 accounts are in Pak-Currency and 09 are in foreign currency. The current balance of all the accounts maintained by the accused is Rs,2.597 million and in the year 1992, the accused deposited Rs,6.48 million in one account. In the year 1991-92, the accused deposited US $ 227495 in his account and he also incurred expenditure of Rs,0.37 million on foreign trips alongwith his family."
3. Learned counsel for the petitioner, in support of this petition submitted that so far as allegations levelled in para. 2 of the Reference, referred to above, are concerned, in most of the instances, he did not pass the final order, that he was merely a recommending authority and in any case those were cases where at worst it could be a misapplication of rules and no transaction in terms of section 9 of the National Accountability Bureau Ordinance is made out. He added that the allegation contained in para. 3 of the reference is concerned, it was lawful to maintain a foreign currency account and in any case the reference itself is indecisive whether it was ill-gotten money or not. The allegations levelled in para. 4 pertained to his purchase and sale of plots and there is nothing to indicate that those plots were illegally got allotted. The allegation with regard to maintaining old Model Porshe and Toyota Cressida Cars do not connect the petitioner with any offence either as the petitioner and his wife had inherited substantial property which is not denied by the prosecution. He contended that para. 6 indicates that the petitioner had sufficient amounts in the bank account. Learned counsel further contended that the petitioner was arrested on 30-10- 2001, reference was tiled on 21-2-2002, ever since his arrest he never obtained any adjournment but till today even the charge has not been framed. He referred to section 16(a) of the National Accountability Bureau Ordinance, 1999 to point out that the law mandates the conclusion of trial within thirty days. He averred that the petitioner is in incarceration from the last more than one year and the prosecution, which has thirty-six witnesses to examine, is not likely to conclude the evidence in the near future. In support of the submissions made above, learned counsel for the petitioner relied on Anwar Saifullah Khan v. The State (2001 SCM R 1040), Ch. Zulfiqzar Ali v.The State (PLD 2002 Supreme Court 546) and an unreported judgment of this Court in.W.P. No,18067 of 2002.
He lastly submitted that the petitioner's wife is suffering from cancer and hepatitis. C which is evident from the report issued by the Shaukat Khanum Hospital Lahore which has been appended with the petition.
4. The learned Prosecutor-General Mr. Naveed Rasool Mirza assisted by the learned Deputy Prosecutor-General Mr. Jawaid Shaukat Malik, opposed the petition by submitting that the petitioner is accused of offences under the National Accountability Bureau Ordinance, 1999; that he misused his official position and acquired properties disproportionate to his known source of income and white collar crimes calls for a deterrent approach even in bail matters. Learned Prosecutor-General, however to be fair to him, conceded that petitioner's wife is seriously sick and if that ground finds favour with this Court, expression of opinion on the merits of the case may not be called for.
5. We have heard learned counsel for the parties and have given anxious consideration to the submissions made at the bar.
6. Admittedly, petitioner is behind the bar for the last more than one year. The Reference was filed in February, 2002 and even the charge has not been framed. There is no allegation that adjournments were sought by the petitioner or his learned counsel. The allegations levelled mostly pertain to violation of some rule but it is not denied that so far as the allegations contained in para. 2 are concerned, mostly the orders were passed by the competent authorities. Mere acquisition of properties is not an offence. The offence is constituted when the accused fails to account for those properties. This exercise of proving the acquisition of properties disproportionate to petitioner's known sources of income and the recording of defence evidence to rebut those charges is likely to take sufficient time. Section 16(a) of NAB Ordinance mandates conclusion of trial within thirty days, therefore, the incarceration of petitioner for an indefinite period would not be in accord with the canons of equity. The august Supreme Court in Anwar Saifullalt Khan v. The State (2001 SCM R 1040) upheld a Full Bench decision of this Court wherein bail was allowed in a NAB case primarily on account of inordinate delay. Yet another aspect which would weigh with the Court, in the peculiar facts and circumstances of this case, is the serious illness of the petitioner's wife and the fact that the petitioner has minor children.
7. In the aforereferred circumstances, this petition is allowed and subject to his furnishing bail bonds in the sum of Rs,10,00,000 (Rupees ten Lacs only) with two sureties each in the like amount to the satisfaction of the learned trial Court Duty Judge, petitioner shall be released on bail. It is, however, observed that the petitioner's passport shall be surrendered to thelearned trial Court and shall not be given " to him without leave of this Court.