MUHAMMAD NASIR vs STATE through National Accountability Bureau
The petitioner, a former Director Education Department, sought post-arrest bail in a case involving allegations of corruption and corrupt practices under the National Accountability Ordinance, 1999, for making illegal appointments in excess of sanctioned posts and accumulating wealth beyond known sources. The core legal question was whether the petitioner was entitled to bail given the gravity of the allegations, the delay in filing the reference, and the principle of consistency with co-accused who had already been granted bail. The Gilgit Baltistan Chief Court held that the petitioner was entitled to bail, noting that documentary evidence was already in possession of the prosecution, co-accused had been granted bail, the reference had not been filed despite delays, and the gravity of an offense alone is not a ground to keep an accused in indefinite detention. The court laid down the principle that liberty cannot be curtailed without justification, similarly placed accused must be treated alike, and pre-trial detention cannot be used as a form of preventive punishment.
- Whether bail can be granted in corruption cases under the National Accountability Ordinance when co-accused facing similar allegations have already been enlarged on bail?
- Does the mere gravity or heinousness of an offense justify keeping an accused behind bars for an indefinite period of time during pre-trial detention?
- Can an accused be denied bail when the documentary evidence is already in the possession of the prosecution and there is no risk of tampering or absconding?
- Section 9(a)(i), National Accountability Ordinance, 1999
- Section 9(a)(iv), National Accountability Ordinance, 1999
- Section 9(a)(v), National Accountability Ordinance, 1999
- Section 9(a)(vi), National Accountability Ordinance, 1999
- Section 9(a)(vii), National Accountability Ordinance, 1999
- Section 23, National Accountability Ordinance, 1999
MALIK HAQ NAWAZ, J.---The petitioner has been booked for the offence of corruption and corrupt practices under section 9(a)(i), (iv), (v), (vi) and (vii) of National Accountability Ordinance, 1999.
2. The main gist of allegation annexed with the warrant of arrest are that during his posting as Director Education Department, he appointed 296 persons as staff in excess to the sanctioned posts, he also appointed 411 persons, illegally without test and interview, including appointments on abolished post, upgraded, under age, over age and also Un-Qualified ineligible individuals and by such illegal appointments he accumulated 26.5 m (aprox) and a sum of 17.596 m was deposited in bank through cash, and he also purchased properties in the name of different people as benamedars.
3. The learned counsel for the petitioner submitted at bar that the allegations are false and result of malafidies as the actual culprits are not in sight and the petitioner has been made a scope goat.
The learned counsel further submitted that the NAB authorities are in possession of documentary evidence and it is sufficient to allay the apprehension that the accused tamper with the prosecution evidence in any manner whatsoever the petitioner will not be able to prepare his defense if kept in jail, as the allegations leveled against him are to be repelled and rebutted through cogent and convincing evidence. As per submission of the learned counsel the appointing authorities were Secretary Education and Minister Education, who are at large and the petitioner and some others have been arrested just to fill in the blank, the individual criminal liability of the petitioner will be determined by the trial Court, after recording of evidence.
4. On the other hand the learned counsel for the respondent submitted that the petitioner accumulated wealth through illegal means worth million of rupees, which cannot be accounted for, as he appointed hundreds of ineligible persons not only in excess of sanction strength, but also appointed some under age and over age persons for monetary consideration only. The bank accounts of the petitioner speak about his involvement in the crime and the petitioner cannot account for the huge amount, which he deposited in his account during his posting as Director Education. The learned Special Prosecutor vehemently opposed the petition for the grant of bail on the score that sufficient incriminating material is available against the accused.
5. We have heard both the learned counsel for the parties and have also gone through the law cases cited at bar pro and contra. The allegations against the petitioner are that he appointed many people against the rules and regulation and obtained rupees 3 to 4 lacs per appointment, thus accumulated wealth beyond. His known sources. The learned Prosecutor NAB when confronted as to why the Secretary Education and Minister Education have not been arrayed as accused, he candidly conceded that they could not be arrested despite the best possible efforts by the NAB authorities. We are afraid that there is no evidence that either the above stated person have left the country or not available in Pakistan. Now a day's world is a global village and wanted criminal could be brought to justice through Interpol by the country of their origins, if a wanted criminal has left the country, which is not the case of prosecutor that the accused are not traceable in Pakistan.
6. It is inconceivable that any wanted criminal can hide himself for an indefinite period of time, owing to the facilities available by modern trace and track system. Despite all the recourses available to NAB authorities they did not bother to cause arrest of those, who were at the helm of the affairs, when all these obnoxious acts were being committed. We have already held in the cases of similar nature titled Mirbaz Ali Faraz, Shah Murad etc. That the persons placed in similar situation are to be treated alike and law does not grant immunity to any criminal because of his high status, since everybody is equal before law. Mere gravity or heinousness of an offence cannot be a reason to keep an accused behind the bars for an indefinite period of time. The liberty and freedom guaranteed by Chapter-11 of Gilgit-Baltistan (Self-Empowerment and Governance) Order, 2009 could not be curtailed except in accordance with law and Courts have to strike a balance between rights of an accused and interest of the society and any accused booked by NAB authorities under various provisions of NAB could not to be kept in jail merely the allegation that the accusations are heinous in nature against the accused. To ensure the presence of an accused before the Court the mechanism is provided under section 23 of the Ordinance and if the Court or the prosecution is apprehensive that accused will jump bail, the court may fix heavy sureties beside imposing conditions while granting bail in NAB cases.
7. The bail facility to some of co-accused of Education Department has already been allowed. The present petitioner is in detention over 05 months and the reference against him has not yet been filed before the Judge/Accountability Court. We are informed that the learned Trial Court has issued direction many a time for filing of reference; the same has not yet been filed. The petitioner being an old age person and senior government official, and there is no chance that either he, will abscond or tamper with the evidence, which is documentary in nature and already in possession of NAB authorities. His detention in jail will not serve any useful purpose as there is no concept of in advance punishment in criminal Jurisprudence.
8. As a result of above discussion the petitioner is admitted to bail subject to the furnishing of a bail bond of Rs, 20,00,000 (Twenty lac only) with two sureties to the satisfaction of Judge Accountability Court Gilgit.