1. IFTIKHAR MUHAMMAD CHAUDHRY. J.---The petitioner calls in question judgment dated 10th December, 2002 passed by Lahore High Court, Lahore whereby Writ Petition No,18071 of 2002 filed by him for his release on bail in a criminal case pending against him being Reference No,39 of 2001 under section 9 read with section 10 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the "Ordinance") has been dismissed.
2. Precisely stating the facts relevant for disposal of the matter are that petitioner was arrested on 21st August, 2041 on the stated allegation that he being former Minister for Petroleum and Natural Resources, Government of Pakistan had been indulging into corruption and corrupt practices.
2. Accordingly Reference No,39 of 2001 was submitted against him in the Accountability Court. On 22nd November, 2001 following charge was read over to the petitioner and as he pleaded not guilty to the charge, as such prosecution was called upon to produce evidence in support of the accusation:-- "Charge-sheet
1. Ch. Iftikhar Hussain, Judge Accountability Court No,2, Lahore do hereby charge you: Muhammad Jahangir Badar son of Haji Badar-U d-Din, Age 57 years Caste Arain, Ex-Federal Minister for Petroleum and Natural Resources, Government of Pakistan, resident of 140/147, Karim Block, Allama lqbal Town. Lahore as under:-- Firstly: That you as Federal Minister for Petroleum and Natural Resources, Government of Pakistan, by misusing your authority as such, during the year 1989-90 illegally and wrongfully passed orders to the Managing Directors of Sui Northern Gas Pipelines 'Limited (SNGPL), Sui Southern Gas Company (SSGC), Oil and Gas Development Corporation (OGDC) and Pakistan State Oil (PSO) for appointment of 99 persons in SNGPL, 74 persons in SSGC, 9 persons in OGDC and 23 persons in PSO and in this way you extended favour to those persons in violation of rules in the matter and with the same caused loss to the public exchequer. Secondly: That you by misusing your above authority (as Minister for Petroleum and Natural Resources) passed orders to the Managing Director, PSO for installation of 61 PSO Outlets (Petrol Pumps) and gained favour for others. Thirdly: That you while holding the above-said public office (Minister for Petroleum and Natural Resources) misused your authority by ordering to issue 11 and 21 Liquefied Pressure Gas (LPG)
3. Licences in SNGPL and SSGC respectively to different persons so as to gain favour for them. Fourthly: That you by misusing your above-mentioned authority ordered to enlist 97 House Pipeline Contractors in SNGPL without any rule and regulation and in this way extended favoritism to such persons and caused loss to the public exchequer. Fifthly: That you during the year 1990 failed to exercise your authority as Minister for Petroleum and Natural Resources/Chairman, Board of Directors SSGC to prevent the rendition of undue benefit of Rs,8 million granted in favour of contractor M/s. Amin Brothers Engineering Ltd. Which you could have avoided/prevented by exercising your authority, as the matter had already stood resolved once for good about 2 years back in view of the written statement Agreements and undertaking given by the Contractor and in this way caused loss to the public exchequer. And thus thereby the above you had committed acts of corruption and corrupt practices as defined in section 9 and punishable under section 10 of the NAB Ordinance, 1999 and the schedule thereto as amended by XXXV of 2000 dated 10-8-2000, which is within the cognizance of this Court.And hereby direct you be tried by me on the above-said charges." Admittedly up to date besides recording statement of P.Ws. Parvaiz Aziz Khan and Maqqdas Ahmad Khan on 7th June, 2002 and 18-12-2002 no other evidence had been produced or recorded by the Accountability Court for one or the other reason.
3. Meanwhile petitioner instituted a writ petition for his release on bail before the Lahore High Court, Lahore but without any success as the same has been dismissed vide impugned judgment.
4. Relevant para. Therefrom is reproduced hereinbelow:-- "5. There is no cavil to the proposition that mere wrongful use of Authority or mistake of law, per se, may not be culpable. However, if a person conscious of the fact that the act that he was doing or the order he was passing or the manner in which he proceeded was violative of any law or rule then he may be culpable if the law so mandates. The case of the prosecution, inter alia, is that the petitioner in his capacity as Minister for Petroleum and Natural Resources had issued specific orders for appointment of certain persons against specific posts i,e, 99 persons in SNGPL, 74 persons in SSGC, 9 persons in OGDC and 23 persons in PSO. It has not been disputed before us by the, petitioner's learned counsel that the petitioner was not the appointing authority against the posts in question and it was the Chairman or the Managing Director of the concerned corporation, which had to make the appointments. We would not like to comment in depth on the merits of the afore-referred allegations. However, prima facie, the allegations leveled and the submissions made by the learned Prosecutor-General may not be without substance. In a trial the special law stipulating conclusion of trial within thirty days, we would have considered the delay as a ground for bail alongwith other grounds, but having gone through the interim orders we have not been able to persuade ourselves at this stage, to hold that the prosecution was solely responsible for the said delay."
4. Learned counsel contended as under:-
(i) Petitioner is incarceration for the last about 20 months and disposal of the case in near future is not possible; therefore he deserves to be admitted to bail on the ground of inordinate delay in the conclusion of trial. In support of his contention he relied upon.
(i) Anwar Saifullah Khan v. The State and 3 others (2001 'SCMR 1040), (ii) Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546).
(ii) Petitioner in capacity of Minister for Petroleum and. Natural Resources, Government of Pakistan was over all incharge of the Ministry, therefore, being a public representative if he has allowed any application submitted to him by the members of public praying for their enlistment as contractors to supply the gas to consumers or sanctioning a petrol pump or granting quota of LPG would not make him liable for the commission of corruption or corrupt practices because the prosecution has to establish mens rea on the part of the petitioner to prove that such orders were passed by him for his personal gain or for the gain of any of his dependent etc. In the instant Vase apparently these elements are missing from the prosecution case. As such prima facie he cannot be held liable for the offence charged against him. Reference in this behalf was made to the judgments reported in the cases of (i) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473 relevant at page 626 (KK)), (ii) Aftab Ahmad Khan Sherpao, Ex-Chief Minister, N.-W.F.P. v. The State (PLD 2001 Peshawar 80), (iii) M. Siddique-ul-Farooque v. The State (PLD 2002 Karachi 24), (iv) Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233) and (v) M. Anwar Saifullah Khan v. The State (PLD 2002 Lahore 458).
(iii) Petitioner by his conduct and deed has not caused loss to the public exchequer in any manner, therefore, receiving applications and making endorsement thereon to the concerned department or authority prima facie does not constitute criminal offence against him. To substantiate the plea reference was made to the cases (i) The President of Pakistan v. Mrs. Benazir Bhutto (1994 SCMR 1969), (ii) Mrs. Shahida Faisal and others v. Federation of Pakistan (2001 SCMR 294) and Abdul Qadir v: Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 5 others (2002 SCMR 1478).
5. 4-A. Conversely learned counsel appearing for the NAB argued as under:--
(i) Bail cannot be granted to the petitioner per se on the ground of delay in the trial because he himself is also contributory for non-completion of the proceedings within the stipulated time.
6. Reliance was placed by him to the cases of (i) Allah Ditta and others v. The State (1990 SCMR 307) and (ii) Muhammad Nawaz v. The State (2002 SCMR 1381).
(ii) Petitioner has sanctioned 61 Petrol Pumps to different persons in violation of Rule 5(f) of Rules of Business, 1973 and Rules 26 to 28 of the Pakistan Petroleum (Refining, Blending and Marketing)
7. Rules, 1971 as well as. The Liquified Petroleum Gas (Production and Distribution) Rules, 1971. He further stated that as per the policy of the Government applications for grant of licences- for installation of petrol pump are to be processed as per the procedure laid down therein but the petitioner after taking over the charge of the Ministry of Petroleum addressed a letter to relevant quarter's on 1st December, 1989 directing them that the licences in respect of petrol pumps, gas agencies, salt agencies, wax agencies etc. Should in future be issued - with his prior approval. Thus petitioner by misusing his authority extended benefits to the licence holders and has indulged into corruption and corrupt practices, in terms of section 9(a)(vi)(vii) of the Ordinance as such is liable for severe punishment in view of an identical case reported in (Common' Cause a Registered Society v. Union of India) JT 1996 (10) SC 349.
(iii) Petitioner's act of granting licences to 61 owners of the petrol pumps as well as agencies for LPG and enlisting contractors for supplying gas to the consumers, has caused colossal loss to the public exchequer, therefore, he is not entitled for grant of bail.
5. The NAB undertakes to complete the trial within the period which' will be fixed by this Court provided defence also cooperates with the prosecution, therefore, bail may not be granted to the petitioner after this assurance because there is a strong case of corruption against petitioner.
6. It is an admitted fact that after arrest of the petitioner on 21st August, 2001 Reference was submitted on 3rd November, 2001 and thereafter the case v.As taken up for hearing for more than 40 occasions but only two witnesses have been examined. Summary of Court proceedings is reproduced hereinbelow:-- Date of hearing PROCEEDINGS 3-11-2001 Reference was received.
8. 7-1 I-2001 The learned Special Prosecutor filed his memo. of appearance.
9. 15-11-2001 The case adjourned for framing of charge.
10. 22-11-2001 Charge was framed.
11. 1-12-2001 Adjournment on behalf of prosecution.
12. 22-12-2001 Adjournment on behalf of prosecution.
13. 5-1-2002 Adjournment on behalf of accused. .
14. 19-1-2002 Adjournment on behalf of prosecution.
15. 31-1-2002 Examination-in-chief of P.W.1 Pervaiz Aziz Khan was recorded.
16. 8-2-2002 P.W.1 Pervaiz Aziz Khan was not present. Case was adjourned.
17. 13-2-2002 Adjourned as the Prosecutor was in Karachi.
18. 20-2-2042 Adjournment on behalf of prosecution.
19. 2-3-2002 Adjourned at the request of the accused.
20. 12-3-2002 Adjourned because learned trial Judge elevated to the Honourable Lahore High Court.
21. 16-3-2002 Adjourned due to non-availability- of Presiding Officer.
22. 28-3-2002 Adjourned due to non-availability of Presiding Officer.
23. 8-4-2002 Adjourned because P.W.1 was not present.
24. 13-4-2002 Adjourned because P.W.1 was unable tit make proper statement.
25. 22-4-2002 Adjourned because P.W.1 was not present.
26. 29-4-2002 Adjourned because P-W.1 did not bring record.
27. 13-5-2002 Partial cross-examination of P. W. 1.
28. 23-5-2002 Partial cross-examination of P. W.1 as tire Court time was over.
29. 7-6-2002 Partial cross-examination of P. W. 1 The P. W. requested for one month's time as he was to avail his holidays 18-6-2002 Partial examination-in-chief of P.W. 2 and adjourned.
30. 24-6-2002 Examination-in-chief of P.W.2 was completed.
31. 4-7-2002 Partial cross-examination of P.W. 2.
32. 12-7-2002 Adjourned on behalf of accused as the counsel was busy before the honourable High Court.
33. 18-7-2002 An opportunity was given to the accused to cross-- examine P W.2.
34. 23-7 2002 Adjournment on behalf of accused as his counsel was busy before Honourable Supreme Court.
35. 2-8-2002 Adjourned because Court was busy in some other reference.
36. 17-8-2002 Adjourned because P.W.1 did not bring record.
37. 26-8-2002 Adjourned because P.W.1 did not bring record.
38. 27-8-2002 Record brought by P. W. was made part of judicial file. Case was put off for cross-examination.
39. 9-9-2002 Part cross-examination recorded. Application was made for a direction to P.W. to produce relevant record for remaining cross-examination.
40. 9-9-2002 Cross-examination of P.W.1 completed.
41. 17-9-2002 Adjournment on behalf of accused as counsel was busy before Honourable High Court: 23-9-2002 On defence counsel's objection the case was put up for completion of statement of Maqadas Ahmad Khan P.W.
42. 28-9-2002 On objection from defence as regards memo. Of appearance the representative of NAB sought time to seek instructions as regards power of attorney.
43. 8-10-2002 Learned PGA brought on record his special power of attorney and adjourned for arguments on Criminal Miscellaneous No.269 dated 28-9-2002.
44. 19-10-2002 The learned prosecutor was directed to hand over copy of application to the accused. The case was adjourned for reply and arguments.
45. 24-10-2002 The case was adjourned for reply and arguments.
46. 26-10-2002 The learned prosecutor sought time for seeking instructions from NAB, Islamabad.
47. 4-11-2002 Learned Special Prosecutor sought time for seeking instructions from NAB, Islamabad.
48. 13-11-2002 Learned Special Prosecutor filed miscellaneous application for bringing on record certificate of Prosecutor-General, NAB.
49. 20-11-2002 The Accountability Court No.2, Lahore was pleased to summon former Prosecutor-General Accountability alongwith record. Court proceedings in detail available on record indicate that on some of the dates of hearing the case was adjourned for interesting reasons i,e, prosecutor is not available as he has gone to Karachi or he is away to Saudi Arabia for performing Hajj. Surprisingly without making alternate arrangement of the Prosecutor to progress the case. Inasmuch as on one of the dates of hearing the witnesses were in attendance but the prosecutor was not present to conduct the case. Such examples are very rare in the cases of criminal nature because it should be the duty of the prosecution to get the case decided as early as could be possible. Likewise for the' reason that the office of the Presiding Officer is lying vacant the case remained pending for an indefinite period without realizing the fact that under the law i,e, section 16(a) of the Ordinance 30 days' time is fixed for disposal of the case, therefore, all out efforts should have been made to get another officer appointed by making request to competent authority.
7. There is no cavil with the proposition that the State machinery has a right to arrest the culprits and put them to trial for the purpose of establishing guilt against-them but it has not been bestowed with an authority to play with the liberty and life of an accused under detention because no one can be allowed to remain in custody for an indefinite period without trial as it is a fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for the completion of the trial. As in the instant case under section 16(a) of the Ordinance the Court is bound to dispose of the case within 30 days. It may be noted that inordinate delay in the prosecution case if not explained, can be considered, a ground for bailing out an accused person depending on the nature and circumstances on account of Which delay has been caused as has been held in the case of Riasat 'Ali v. Ghulam Muhammad and State (PLD 1968 SC 353). Relevant para.Therefrom is reproduced hereinbelow:-- It appears that some adjournments were caused in the case for the non-production of the accused persons in the Court on some hearings due to an epidemic having spread in the jail where they were lodged. One or two adjournments were caused in the case for summoning the constable who had tried to trace Yaqoob, the absconding accused in order to proceed against him under section 512 of the Cr.P.C. It seems that one or two more adjournments were occasioned because of the absence. Of the Presiding Officer from the Court for one reason or another. It would thus appear that the observation of the learned Single Judge that the Committing Court was sitting over the case without having recorded any evidence, was not grounded on facts. In the circumstances it would be unjustified to put any blame on the Committing Court for indifference or inactivity in proceedings with the case. Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all dispatch eliminating every avoidable delay in order to bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution can be permitted to enlist the will of the Court on its side directly or indirectly prolonging the worries and harassment of and accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated.
50. But delay in the prosecution of a case or the procrastination of the proceedings in a trial furnishing as a ground for bail have to be weighed and judged in, each case on its own merits."
51. ' The above view consistently is being followed by this Court. Reference if need be, can be made to judgments reported (i) Nazir Hussain.v. Ziaul Hay and others (1983 SCMR 72), (ii) Ashiq Hussain and 3 others v. The State (1989 SCMR 1580), (iii) Anwar Saifullah Khan v. The State and 3 others (2001 SCMR 1040), (iv) Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546).Relevant para.From the last mentioned judgment is reproduced hereinbelow:- "9. Under section 16(a) of the Ordinance, all persons accused of a scheduled offence are exclusively tribal by the Courts established under the Ordinance and the cases have to he heard from day to day and disposed of within 30 days but in the instant case trial has not been concluded in 9 months whereas the petitioner is in custody for the last about 27 months. Although delay in disposal of the case was attributed by both the parties to each other but the order sheet of the trial Court shows that both the parties have been taking adjournments, therefore, both the parties were responsible for delay in disposal of the case. Notwithstanding the merits of the case, the inordinate delay in disposal of the trial is a good ground recognized by the Court in various judgments holding the same to be abuse of process of the Court and treating it as sufficient ground for grant of bail." In the above-noted case bail was granted to Zulfiqar Ali petitioner because he remained in custody for 27 months and the delay in the conclusion of trial was" attributed to both the parties.
52. Against the above prevailing consistent view only one exceptional principle can be pressed into service namely that if the trial of the case has commenced then instead of releasing the accused on bail direction should be made for expeditious disposal of the case by adopting certain modalities to ensure that the accused is not detained further for an indefinite period. Reference in this behalf is made to the case of (i) Allah Ditta and others v. The State (1990 SCMR 307) and (ii)
53. Iftikhar Ahmad v.The State (1990 SCMR 607). Under such circumstances we are of the opinion that in the instant case as well, such a device is required to be adopted, because prima facie involvement of the petitioner in the case cannot be overruled at this stage without commenting on merits of the case in depth so the prosecution may also get a final opportunity to conclude the case within the time which will be fixed by this Court and at the same time to ensure that the accused is not kept in custody for an indefinite period because the trial of the case has already commenced and statements of two witnesses have been' recorded, and a good number of documents have also come on record so far. Therefore, following the observations of this Court in the case of Ashok v. The State (1997 SCMR 436) the trial Court is directed to complete the trial within 30 days by holding proceedings of the case on day to day basis and raven then the trial is not concluded then the accused shall be liable to be released on bail by the trial Court subject to surety which has already been specified in the short order.
8. So far as remaining grounds urged by the learned counsel for the parties are concerned they are not required to be gone' into because on the basis of available material prima facie case has been made out justifying the trial against the accused and appreciation of merits of the case in the light of the arguments advanced by the learned counsel for the parties shall cause prejudice to either of the parties at the final hearing of the case.
9. Before parting with the judgment we would direct the Registrar of Lahore High Court, Lahore to initiate disciplinary action against Muhammad Ibrahim, Junior Clerk who failed to supply copy of the order dated 20th September.
54. 1.990 passed by his lordship Mr. Justice Munir A. Sheikh (as he then was Judge of Lahore High Court) in Case No,1/Ref/Dis-90 for the reason mentioned in the apology tendered by him before this Court. A copy of the same be also sent to the Registrar alongwith this order.
10. Hereinabove are the reasons of our following short order of the even date:-- "For the reasons to be recorded later on, petition is converted into appeal and the trial Court is directed to complete the trial of the case within thirty days from the receipt of this order, by holding the hearing of the case on day to day basis without granting undue adjournment. If the trial is not concluded within the stipulated period, petitioner shall be released on bail by the trial Court, subject to furnishing surety bond by him in the sum of Rs,2.00 million and P.R. In the like amount to the satisfaction of the said Court."