ASHER JAN vs THE STATE

ORDER

1. ' S.A. RABBANI, J.---Accountability Reference No,10 of 2001 has been filed by Chairman, National Accountability Bureau, against some officials of Excise Department, Government of Sindh as well as some other persons, on the charge a huge evasion of excise duty and other levies by way of import of wines from Murry Brewery Limited, Rawalpindi through use of fake permits. Present applicant, who was Manager, Sales of Murry Brewery Limited, Rawalpindi, is one of the accused persons. The applicant filed an application for pre-arrest bail which was declined and, thereafter, the applicant surrendered before the trial Court. After his remand to custody, present application has been filed for his bail.

2. The provision in respect of bail in the case registered on references made by National Accountability Bureau is contained in section 9(b) of the National Accountability Bureau Ordinance, 1999. This provision, as it stands now, after the amendment made through National Accountability Bureau (Amendment) Ordinance 2001 (Ordinance No,XXXV of 2001), is as under:-- "(9)(a)

(b) all offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force, no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."

3. ' In section 5(g) of the Ordinance, Court has been defined to mean an Accountability Court. Thus, section 9(b) of the Ordinance totally ousts jurisdiction of the trial Court to grant bail in Accountability cases. Words "including the High Court" were inserted in section 9(b) through Ordinance No,IV of 2000, and, simultaneously, under the same Ordinance, sections 426 and 491 were also inserted. The intention behind these insertions was obviously to put a bar on the jurisdiction of the High Court to grant bail in such cases. However, this bar has now been removed through amendment made by Ordinance No,XXXV of 2001 and now the High Court can exercise its normal jurisdiction for grant of bail in Accountability cases. But the question is, how the total ouster of jurisdiction of the trial Court in respect of bail affects the jurisdiction of the High Court for grant of bail in these cases.

4. ' The intention of the legislator cannot merely be to transfer this exercise from the trial Court to the High Court without any purpose. The total ouster of jurisdiction of the trial Court in respect of bail reflects the legislator's intention that bail in these cases should not be granted normally on the criterion for the purpose of bail in cases under other laws, because otherwise grant of bail by the High Court viz. The Appellate Court, instead of the trial Court, in the first instance, would be without any wisdom. Thus, the criterion for grant of bail in Accountability cases would be different from that laid down for the cases under other laws. The High Court has powers to grant bail in suitable cases and this suitability can be judged on the grounds of hardship and, prima facie, high improbability of conviction of the accused on the basis of material collected by the prosecution against him.

5. ' Ordinance XXXV of 2001 has omitted the words "including the High Court" from section 9(b) of the Ordinance, 1999, to remove the bar on the jurisdiction of the High Court to grant bail in these cases, but sections 426, 491 and 561-A of the Criminal Procedure Code mentioned in this section have not been omitted.

6. ' Section 9(b) of the NAB Ordinance only prohibits the Accountability Courts from granting bail.

7. Reference to sections 426, 491 and 561-A, Cr.P.C. In this section is, therefore, absolutely unnecessary because these sections relate to power of High Court and not that of the Accountability Courts.

8. Mention of sections 426, 491 and 561-A, Cr.P.C. In. Section 9(b) of the NAB Ordinance is thus redundant.

9. ' The case of the present applicant is not one of hardship as he has surrendered before the trial Court only recently when his pre-arrest bail was declined.

10. ' As regards the other aspect of the case, Mr. M.A. Kazi, learned counsel for the applicant, submitted that there is no evidence against the applicant and the evidence of 17 witnesses examined by the Investigating Officer in this case does nt implicate the present applicant. Mr. Kazi referred to the statements of prosecution witnesses and submitted that almost all of them do not implicate the present applicant. It is, however, not disputed that the present applicant was Sales Manager of Murry Brewery Limited, Rawalpindi during the period when alleged evasion of excise duty was made by import of wines from Murry Brewery Limited, Rawalpindi by use of fake import permits, ' Mr. Aamer Naqvi, learned counsel appearing on behalf of NAB, submitted that the fake permits were in the name of the present applicant. According to him, relevant documents were recovered from possession of the applicant and he was involved in the transaction, ' The evidence has yet to be examined and evaluated by the trial Court and, in the circumstances of this case, it would not be appropriate to give a finding of high improbability of involvement of the present applicant in the transaction and gains thereof.

11. ' We, therefore, find that this is not a case fit for grant of bail at this stage. The application is dismissed accordingly.