' Petitioner seeks bail in a reference filed by the National Accountability Bureau under section 9(v) of the National Accountability Bureau Ordinance, 1999 wherein the charge framed is as under:-- "That you while holding a Public Office within the meaning of section 5(m) of the NAB Ordinance, 1999 acquitted, possessed vast assets worth more than Rs,28 million, assessed at the time of acquisition/construction, having the market value of more than Rs,38 million, in your own name or in the name of your dependents, from 1991 to 1999, disproportionate to your known sources of income,. And which you cannot reasonably account for. The detail of properties and assets acquired is as under:--
(1) Agricultural land measuring 175 acres at Kot Addu purchased for Rs,4, 00,000 out of which 43 acres 6 Kanals and 5 Marlas worth Rs,1 lac is in your name and remaining land is in the name of your brothers Muhammad Nasir Shah, Mukhtar Shah and nephew/son-in-law Zahid Ahmed Shah.
(2) Bungalow on Plot No,50, measuring 9 Kanals at Qasim Road, Multan Cantt. Purchased in the name of your wife Mst. Khurshid Begum on 25-11-1991 for Rs,22,00,000.
(3) Bungalow on Plots Nos.22/C and 22/D, Street No,19, F-6/2, Islamabad measuring 1200 sq. Yds.
Purchased in your own name on 1-9-1991, for Rs,1,20,00,000.
(4) 35% share in Al-Makhdoom Cotton Factory, Village Makhdoom Rasheed, District Multan in 1990 in the name of your daughters, Momina and Javeria, worth Rs,2,00,000.
(5) 20% share in Zahid Daal Factory, Village Makhdoom Rasheed, District Multan, in 1990 in the name of your daughter, Momina, worth Rs,1,00,000.
(6) Share in Adage Advertising (Pvt.) Limited Islamabad on 18-1-1990 in your own name, worth Rs,3,00,000.
(7) Dera with three residential units at village Gharyiala, District Multan. The building was constructed between 1992-98 and construction was assessed at Rs,34,09,910 and your 1/4th comes to Rs,8,52,477.
(8) Three vehicles Pajeros, i,e, Model 1985 (LHM-533) in the name of your wife, Model 1987 (MNK-85) and Mitsubishi Pajero, Model 1993, in your own name, all three valued over Rs,3.5 million.
(9) Prize Bonds worth Rs,2 million in the name of your wife.
(10) 1/3rd share in Mehfil Cinema, bearing Property No,2572/A, A-1 and B, Hussain Aghai Road, Multan. The cinema was purchased on 11-12-1997 for Rs,88,37,500 out of which share of your daughters is valued at Rs,29,00,000.
(11) Plot No,146 Gulshan-e-Wahid-II, Multan measuring 10 Marlas, purchased on 10-7-1996 in the name of your daughter, Amina Javed, valued at Rs,1,73,000.
(12) Plot in village Dorana Langa, Multan measuring 10 Marlas, purchased in 1999 in the name of your daughter Momina Javed, valued at Rs,1,06,000, and
(13) You had received heavy amount of about Rs,11.3 million in the year 1990-91 through telegraphic transfers and bank drafts UBL, Adamjee Nagar Branch, Karachi.
2. Learned counsel for the petitioner in support of this petition submitted that the petitioner is behind the bar for the last more than one year and the trial has not concluded; that only 19 witnesses out of 61 cited by the prosecution had so far been examined; that there are 13 heads of the charges framed and most of them pertain to the properties which are in the name of his blood relations, that the offence under NAB is not constituted merely by acquiring properties the offence is committed if petitioner fails to account for the property acquired; that petitioner was not given an opportunity during investigation to account for the properties held; that section 9(v) of the National Accountability Ordinance, 1999 is analogous to section 5(3) of the Prevention of Corruption Act which was enacted to try the delinquent public servants; that petitioner has never been a public servant in terms of the afore-referred act and the properties which have been acquired on account of his standing as a landowner or through other lawful means have wrongly been made part of the charge, that the kind of allegations which have been levelled requires the petitioner to prepare his defence and his detention is seriously hampering his right to defend himself. He lastly submitted that petitioner has been elected as Member of National Assembly which according to him is a sufficient vindication of his position and that if he is kept in custody the right of representation of his constituents would be adversely effected as he would not be able to attend the proceedings of the Parliament. In support of the submissions made learned counsel relied on Shahida Faisal v. NAB 2001 SCMR 294, Syed Mehdi v. NAB 2002 SCMR 282, Ch. Tanveer Khan v. Chairman, National Accountability Bureau PLD 2002 SC 572, Anwar Saifullah v. The State and others PLD 2000 Lah. 564 and Anwar Saif Ullah Khan v. The State 2001 SCMR 1040.
3. Mr. Javed Shaukat Malik learned Deputy Prosecutor-General. Opposed the petition by submitting that the delay in the trial is accountable to the petitioner; that the Court could not proceed with the trial initially on account of adjournments sought by petitioner's learned counsel; that after the framing of charge 19 witnesses have been examined; that the prosecution may not examine all the 61 witnesses and only 45 may be examined ultimately and that the trial is likely to be made in 4 to 5 months. Commenting on the philosophy behind the NAB laws he contended that this is a special law to check and eradicate corruption in holders of public offices; that this Court may not allow bail to the petitioner in Constitutional jurisdiction. In support of the submissions made by learned Deputy Prosecutor-General quoted from his Book "Treatise on the National Accountability Bureau Ordinance, 1999.
4. We have heard the learned counsel for the parties, have gone through the precedent case-law which has been relied upon and have given anxious considerations to the submissions made.
5. There is no cavil with the proposition that the exercise for the accountability of holders of public office is a commendable endeavour. Notwithstanding the noble objectives reflected in the preamble of the NAB Ordinance, if the exercise is to inspire confidence it must be across the board, transparent and regulated by canons of natural justice and the A law declared by the superior Courts. An accused is presumed to be innocent unless proved otherwise. In a trial under the NAB Ordinance the initial burden of proof continues to be on the prosecution and it is only when it has rendered a reasonable proof before the trial Court qua the guilt of an accused that the onus shifts on the accused to prove his innocence by showing that the properties were acquired through lawful means. The petitioner is in custody for the last more than one year and admittedly out of the 61 witnesses cited by the prosecution only 19 witnesses have been examined so far notwithstanding the explicit provision of section 16 of the NAB Ordinance which inter alia mandates that 'the case shall be heard from day to day and disposed of within 30 days". In the instant case where 7 out of 13 charges pertain to Benamidars, the task of an accused is all the more arduous. The learned Deputy Prosecutor-General was not too sure as to how many P.Ws. Would be,given up and how many would be examined. It is only after the recording of the entire prosecution evidence that the accused would put up his defence. When the accused enters his defence, even the "Benamidars" may have to be produced in defence or made a party in view of the judgment of august Supreme Court in C.P. No,221 of 2001 which was followed by a Division Bench of this Court in Criminal Appeal No,1360 of 2000 the conviction was set aside, the case was remanded and it was held as under:-- "However, as regards his father, mother and sister we are of the view that in course of trial, they ought to have been heard and afforded an opportunity to show that the property forfeited by the trial Court vests in them because their case stands on different footing. In this view of the matter, we would remand the case to the Accountability Court No,IV at Peshawar with direction that in post remand proceedings, the father, mother and sister `Benamidars' shall be called upon to show cause as to why their property be not confiscated. In those proceedings they would be at liberty to adduce any evidence which they wish to produce to establish their own, ownership subject to the discretion of the trial Court and law. `Benamidars' can recall any P.W. For cross-examination confined only to the ownership or history of the property."
' When the prosecution has yet to examine a major part of its evidence of the petitioner has yet to enter his defence, the fate of trial hangs in the balance. In the afore-referred circumstances the questions which require consideration are, can the petitioner be kept in custody for an indefinite period?, can he effectively exercise his right to defend can he be denied bail particularly when there is no allegation that he is likely to abscond or tamper with prosecution evidence? A learned Full Bench of this Court was called upon to decide some of these questions in Anwar Saifullah v.
NAB PLD 2000 Lah. 564 wherein at page 579 it was observed as under:-- ' "The concept of pre-trial release of the accused was developed on three presumptions; firstly the accused was presumed to be innocent till he was found guilty; secondly the accused should have a right to prepare his defence and prove his innocence before the Court of trial; and thirdly the accused should not be punished before-the finding of his conviction was rendered by the Court."
' The afore-referred judgment was not appealed against by the NAB and it was affirmed by the august Supreme Court in the judgment reported in Anwar Saifullah v. The State and others 2001 SCMR 1040.
6. So far as power of this Court under Article 199 of the Constitution is concerned the law by now is settled that this Court can exercise its powers under Article 199 of the Constitution to grant bail in appropriate cases. The ouster clause of the National Accountability Ordinance to which reference was made by the learned Deputy Prosecutor-General was specifically attended to by the august Supreme Court in Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607 and it was categorically reiterated the earlier view given in Zafar Ali Shah's case; 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 in all Courts, including the High Courts, 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 vires the Constitution". (Underlining is ours). It was in defence 'to the afore-referred dictum of august Supreme Court that the National Accountability Ordinance, 1999 was amended. The afore-referred dictum is in accord with the time honoured principle of natural justice i,e, Ubi jus ibi remedium (every wrong has a remedy). There is yet another aspect of the matter. The petitioner during his period of custody contested the election for the seat of National Assembly. His nomination papers were scrutinized, the objections were repelled and he stands elected as member of the National Assembly from Lahore. This development has two-fold dimensions, firstly as a Legislator he has to attend the Sessions of the National Assembly to contribute his bit in the business of Parliament and, secondly, he has to represent his Constituency.
If the opportunity to attend the Sessions of Parliament is not given to the petitioner it would be denial of his right to represent the people. In that event even his constituents would go unrepresented which would be violative of their Constitutional rights. We specifically asked the learned Deputy Prosecutor-General for NAB as to whether he apprehends abscondence of the petitioner to which he replied he was not in a position to say anything but could not controvert that petitioner's name has already been placed on Exit Control List.
' For what has been discussed above, we are inclined to allow this petition that subject to his furnishing bail bonds in the sum of Rs,five lacs with two sureties each in the like amount to the satisfaction of the trial Court, he shall be released on bail.