ALI NAWAZ CHOWHAN, J.- This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 asking for release of the petitioner on bail.
2. The matter pertains to the case F.I.R. No. 130/2001 registered on 16.3.2001 having correspondence NAB Reference No. 17/2002, dated 17.4.2002. The petitioner alongwith 11 other co- accused are indicted in this case and who are facing trial.
3- According to the learned counsel two of the co-accused namely Agha Jahanzeb and Arif Sharif applied for their bail and the Honourable Supreme Court of Pakistan allowed them bail while observing as follows:- In the case of Agha Jahanzeb in C.P. Nos, 50 and 51 of 2003 the observations of the Honourable Supreme Court were:- "When questioned that under the NAB Ordinance, trial is to conclude within 30 days, Mr. M. Ibrahim Satti, ASC submitted that this time period is not mandatory but directory. For the time being we would refrain from expressing any opinion as to whether the time frame is mandatory or directory, but would direct that after submission of challan in this case on 7th of May, 2003, if the trial does not commence or conclude within 30 days from the said date, petitioner would automatically become entitled to the' grant of bail, subject to his furnishing bail bonds in the sum of Rs. i.e millions with one surety in the like amount to the satisfaction of the Trial Court at Lahore.
Both petitions disposed of."
4. Whereas in the case of Arif Sharif in C.P. Nos. 1264-L/2003 and 1265-L/2003, decided on 12.6.2003 the Honourable Supreme Court in paragraph 6 observed as follows:- "Perusal of the above provision of law clearly envisages that a person cannot be detained for purposes of investigation/inquiry for a period not exceeding 90 days and for every remand, reasons have to be recorded. Petitioner is in the judicial lock-up and no Reference could be filed by NAB over a period of about two long years. No doubt, as pointed out by learned counsel for NAB that Reference has been filed on 4.3.2003, but again no progress whatsoever has taken place towards . The conclusion of petitioner's trial despite lapse of a considerable time. Admittedly petitioner was arrested on 6.4.2001 and is in continuous detention over a period of 25 months and cannot be allowed to be detained for an indefinite period. Therefore, we are of the considered view that it is a fit case that warrants interference by this Court. Accordingly, we convert these petitions into appeal and allow the same with direction, that the petitioner Arif Sharif shall be released on bail subject to his furnishing bail bonds in the sum of Rs. Ten million with on surety in the like amount in each Reference to the satisfaction of the Trial Court."
5. The learned counsel is asking for bail while pressing the principle of equality and while stating that role of the petitioner was not different then the role of the two co-accused who have been granted bail in this case rather he stated that his role was lesser than the role of Agha Jahanzeb. It was further stated that they were incarcerated in the Jail together during the same period of time.
Their trial has not yet commenced and the learned counsel for NAB informed this Court upon a query that even a charge has not been framed so far.
6. Learned counsel for NAB states that the case of the petitioner was distinguishable from the case of other accused. But the question is whether he has suffered lesser period of incarceration and whether the principle as laid down by the Honourable Supreme Court would not be applicable to him on the basis of the facts, the answer was not cogent.
7. We are only applying the principle of equality in view of the observations of the Honourable Supreme Court in both the petitions. Consequently, we enlarge the petitioner to bail and keeping in view the allegation of quantum of money alleged to have misappropriated by him said to be 37,000 US $ (according to the I.O.), they shall furnish bonds in the sum of Rs. 3 millions each with one respectable local surety each in the like amount to the satisfaction of the Trial Court. After they are released on bail, they shall be appearing regularly before the Trial Court, otherwise, it would be a ground for recalling the order.