MUHAMMAD SAEED MEHDI vs THE STATE and 2 others

' RANA BHAGWANDAS, J.---Petitoner, a Member of the District Management Group of the Central Superior Services with thirty-four years of service at his credit and formerly holding the office of Principal Secretary to the then Prime Minister, seeks leave to appeal against the Lahore High Court, Rawalpindi Bench, Rawalpindi judgment dated 15-8-2001, dismissing his Constitutional Petition, seeking bail pending trial in Reference No,6 of 2000.

2. The petitioner was arrested on 7-4-2000 in connection with a case registered against him and co-accused M/s. Asif Ali Zardari and Shafi M. Sehwani for committing offences under section 9(a)

(iii)(iv) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as NAB Ordinance). Allegations against the petitioner are that in November/December, 1993, while holding the office of Chairman, Capital Development Authority, he sanctioned an amount of Rs,0.6 million to the Environment Directorate, CDA for landscaping near Gate No,3 of the Prime Minister's House, Islamabad in breach of procedure and without following the rules on the subject. It is further alleged that he also sanctioned an amount of rupees one million for the construction of one Suite, two Stable Sheds and four Guard Rooms with toilets alongside the stables in the Prime Minister's House without any legal justification. It is the case of the petitioner that amount of rupees six lacs was sanctioned through book adjustment by transferring it from one Wing of the CDA to another in routine, for land-scaping on the office note/recommendation when there was no mention of construction of Polo Ground in the Prime Minister's House. The amount was required to be spent on fuel/machinery to be used for this purpose and the work was to be carried out departmentally.

With regard to the second amount, petitioner pleaded that in his capacity as Chairman, CDA as far back as on 2-5-1994, he had approved funding of rupees one million as bridge financing on the recommendations of very responsible and experienced officers of the Audit and Accounts Group dealing with financial matters. The petitioner claims that this amount was to be adjusted against the overall allocation of the Complex for the next financial year and he had no role in approval of the project. Perusal of the report under section 173, Cr.P.C. In the Reference, as incorporated in the impugned judgment, tends to reflect that on the illegal directions of Mr. Asif Ali Zardari, husband of the then Prime Minister, M/s. Saeed Mehdi, Shafi M. Sehwani and Zafar Iqbal (since dead), as Chairman, CDA converted an amount of Rs,52.297 million from public exchequer/CDA funds for illegal construction. They violated legal, financial and administrative requirements on illegal directions of the principal accused and misused/misapplied CDA funds for the construction of a project which they knew and had reason to believe was for the personal use and enjoyment of the principal accused. Thus, they committed the offence of corruption and corrupt practices within the meaning of section 18(9) read with section 24 of NAB Ordinance.

3. Mr. Wasim Sajjad, learned Senior Advocate Supreme Court for the petitoner pressed into service the following contentions in support of the petition:--

(i) The petitoner was taken into custody on. 12-10-1999 in PIA plane hijacking case in which he was acquitted by the Anti-Terrorism Court, Karachi vide judgment dated 6-4-2000 (upheld in appeal by Sindh High Court) and arrested in the present Reference with effect from the next day with the result that he is behind the bars for the last about 18 months, without any trial or prospect of his trial in the near future. In the meanwhile he has also been acquitted in a Reference relating to possessing properties disproportionate to his known sources of income.

(ii) Even if the trial commences, it would take at least one year to conclude in view of large number of witnesses and bulk of documents.

(iii) A perusal of the report submitted before the Accountability Court would show that the petitioner neither misappropriated public funds for his own use nor did he cause gain to any of his friends or relatives. In any event the petitioner neither indulged in corrupt practices nor misused his official authority in that it was within his competence to sanction the amount for landscaping in normal course to be spent by the Environment Directorate of the CDA, on the proposal of senior officials of the Machinery Pool Organization after due clearance by the officers of the Audit and Accounts Group in the CDA.

(iv) The petitioner is suffering from fairly advanced cervical spondylosis with evidence of root compression and has symptoms of vertebro basalar syndrome. As suggested by the Consultant Surgeon and Head of the Surgery Department, Pakistan Institute of Medical Science, to prevent further damage, the petitioner needs regular monitoring and treatment of cervical spondylosis in the form of cervical traction and SWD from a well-equipped Hospital. Furthermore, with regard to prostatism and history of renal stones, he needs proper investigations and appropriate treatment.

4. In order to reinforce his submissions, Mr. Wasim Sajad placed on record copies of office note by Deputy Director (Operation), MPO, CDA, duly recommended by the Director, MPO and Member Engineering, CDA for approval of a sum of six lacs and directing Environment Directorate to foot the bill of hire charges of the work pertaining to the said Wing. He has also placed before us copies of the official noting by Deputy Director, Special Projects-II, CDA recommending the sanction of funds amounting to Rs,1.6 million for construction of a Suite consisting of a living room, sitting room, verandah and toilet, four Guard rooms with toilets and two Stable sheds in the Prime Minister's House. This noting was duly recommended by Mr. Shafi M. Sehwani, Vice-Chairman, CDA for the sanction of rupees one million, which was approved by the petitioner as a bridge financing measure, after clearance by Assistant Financial Adviser (Budget) with a clear understanding that the amount will be adjusted against the overall allocation of the complex in the next financial year.

With regard to medical grounds, learned counsel has placed on record detailed report by Professor Dr. Muhammad Shafique, Consultant surgeon and Head of Department of Surgery, Pakistan Institute of Medical Sciences (PIMS), Islamabad. He also referred to. Rules of Business of the CDA reflecting the powers of the Chairman to approve expenditure and to sanction funds to the tune of Rupees five million. He submitted that the petitioners, having been advised to approve certain items of work in the normal course of his official duties, bona fide and in good faith approved the expenditure to be carried out in the Prime Minister's House without any ulterior design or corrupt motive. As to the physical incapacity of the petitioner and the diagnosis made by the Consultant Surgeon, learned counsel emphasized that this ground was not controverted by the prosecution before the High Court. According to him, even the High Court, while declining the relief of bail on technical grounds, had directed that petitioners be shifed to a hospital for provision of necessary treatment, which would not be adequate and appropriate relief in the circumstances. Referring to inordinate delay in the commencement of the proceedings, learned counsel pointed out that co- accused Shafi M. Sehwani is seriously sick, infirm and unable to undertake journey to the Accountability Court at Attock where the case against him and the petitioner is pending. He pointed out that NAB had moved an application for separation of the trial of the petitioner and Mr. Asif Ali Zardari from that of Mr. Sehwani but the request was turned down by the trial Court. He stated at the Bar that the prosecution plea was fully supported by the petitioners, though opposed by the principal accused, which in the end result, was turned down by the Court below on a technical ground that Mr. Sehwani had never been produced before the said Court.

5. Conversely, Mr. Abdul Bawer Qureshi, learned Deputy Prosecutor-General, NAB, appearing on behalf of NAB informed us that a writ petition impugning the vires of the order of the Accountability Court is sub judice before the Rawalpindi Bench of the Lahore High Court. He did not dispute the position that in connection with the request for separation of the trial of the petitioner from that of Mr. Sehwani the petitioner had strongly supported the prayer though it was opposed by principal accused. With reference to sections 497 and 498, Cr.P.C., governing the grounds and principles for the grant of bail in non-bailable offences, learned counsel contended that the embargo on the power of the Accountability Court to grant bail in terms of section 9(b) of NAB Ordinance supersedes the powers of the Court under the Code of Criminal Procedure. Learned counsel was conscious of the judgment of this Court in Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), declaring certain provisions of the NAB Ordinance ultra vires of the Constitution. He was also conscious of the amendment introduced in section 9(b) of NAB Ordinance, omitting the words 'High Court', whereby ouster of jurisdiction of the High Court to grant bail in scheduled offences was done away with. When asked as to why NAB did not like the trial of the case against the petitioners and the co-accused before the Accountability Court, Rawalpindi in order to facilitate co-accused Shafi M. Sehwani to participate in the proceedings without any let or hindrance, he could not make any satisfactory reply. It appeared from the trend of his arguments that NAB authorities are determined to see that the trial against the petitioners and the co-accused takes place before the Court at Attock, irrespective of inordinate delay in the commencement of the proceedings.

6. We have carefully considered the submissions made by the learned counsel for the parties. The object of a criminal trial is to make the accused face the trial and not to punish an undertrial prisoner for the offence alleged against him. The basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. It is also well-recognised priciple of law that bail cannot be withheld as punishment on accusation of non-bailable offences against an accused. It is also a salutary proposition of law that an accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay. In the instant case, it is admitted that the trial against the petitioner has not commenced for no fault attributable to him. It is undisputed that undue delay has taken place in the commencement of the trial against the petitioners for non-production of co-accused Mr. Shafi M. Sehwani, who has been found to be unable to travel to Attock though it is conceded that he is able to appear before any Court at Rawalpindi. Be that as it may, the object of NAB Ordinance, as contained in its preamble, inter alia, provides for expeditious trial of scheduled offences within the shortest possible time. This position is reassured in section 16 of NAB Ordinance postulating for day to day trial of the case and its conclusion within thirty days. Obviously, in the present case such object does not seem to be anywhere near its achievement for the reasons mentioned above.

7. As regards the nature of accusation against the petitioners, the truth or otherwise of such allegations can only be determined at the trial by the Court after deep analysis of the evidence that may be adduced by the parties. Without going deeper into the merits of the prosecution case, it may suffice to observe that prima facie the petitioner does not appear to be guilty of misuse of official position or misappropriation of public funds to his own use or in order to cause monetary loss of public funds or to obtain illegal gain for himself or for any of his relatives or friends. It is not the case of the prosecution that the amount sanctioned by him was not actually spent on the works for which it was approved. In the peculiar circumstances of the case, in the event of a requisition, whether oral or otherwise, emanating from quarters not less than Prime Minister's House, it might have been highly embarrassing and difficult for the petitioner to decline the same, which involved the sanction of amount within his competence.

8. Adverting to bar of jurisdiction in the matter of grant of bail under NAB Ordinance, the High Court, apart from dealing with the provisions of sections 491, 497, 498 and 561-A, Cr.P.C., appears to have been impressed by the provisions contained in section 9(b) of NAB Ordinance. The observation that the bar of jurisdiction under clause (b) of section 9 of NAB Ordinance was not only confined to the Courts constituted under NAB Ordinance but it extended to all Courts, including the High Court, we suffice by observing that this quegtion has been set at rest by a Full Bench of the Lahore High Court in Anwar Saifullah Khan v. State (PLD 2000 Lahore 564) ratio whereof is binding on the learned Judge in Chambers. In this case, various provisions of the Code of Criminal Procedure as well as section 9(b) of NAB Ordinance was elaborately discussed at length and as per majority view it was ruled that the High Court had the jurisdiction under Article 199 of the Constitution to grant bail to a person accused of an offence under NAB Ordinance in appropriate cases in that the bar of jurisdiction thereunder being in the nature of legislative enactment could not take away the jurisdiction of the High Court under Article 199 of the Constitution. It was rightly held that Constitutional jurisdiction can also be exercised on the well-known principle of ubi jus ibi remedium i.e, 'where there is a wrong there is a remedy'. Furthermore, this Court having directed in Khan Asfandayar Wali (supra) to amend the provisions of NAB Ordinance suitably so as to bring them in conformity with the Constitutional dispensation, narrower view taken by the High Court can hardly be appreciated. Moreover, quite recently, the Sindh High Court has exercised such jurisdiction in Syed Ghous Ali Shah's case in C.P. No,1312 of 2001, decided on 17-8-2001 and in. Asif Baig's case in C.P. No,1312 of 2001 decided on 16-7-2001, which provided valuable guidelines for the exercise of Constitutional jurisdiction rather than its abdication. As to the jurisdiction of this Court, needless to reiterate that even the unamended provisions of section 9(b) did not bar the jurisdiction of this Court to grant bail in appropriate cases. Moreso this Court expressed the same view in Shahida Faisal v. Federation of Pakistan (2001 SCMR 294), Anwar Saifullah Khan v. State (2001 SCMR 1040) and Mian Manzoor Ahmad Wattoo v. State (2000 SCMR 107). Although the last case arose out of prosecution under the Prevention of Corruption Act, 1947, guidelines and principles have been laid down in the said precedent for grant of bail to an accused on the ground of serious ailment.

9. Medical ground urged in support of the prayer for bail has also not been controverted by the prosecution. It was rather conceded that the petitioner requires immediate treatment, hospitalization and close monitoring by Specialists in a well-equipped hospital. This object obviously cannot be achieved by detaining the petitioner in jail indefinitely or to refer him to a hospital for the purpose of treatment for a limited time. Since the petitioner has been found to be entitled to the concession of bail on variety of grounds and the grant of bail cannot be withheld by way of punishment, we hold that petitioner has made out a case for grant of bail.

10. For the aforesaid facts and reasons, at the conclusion of the hearing, we passed the following short order:-- ' "For the reasons to be recorded later, this petition is converted into appeal and accepted.

Consequently the petitioner is granted bail pending trial in the sum of Rs,16,00,000 (Rupees sixteen lacs) with two sureties in the like amount to the satisfaction of the Registrar of this Court."

11. Aforesaid are the detailed reasons for the short order of even date.