Mst. FATIMA ISMAIL vs THE STATE

' SYED DEEDAR HUSSAIN SHAH, J.---Leave is sought against judgment of the High Court of Sindh, Karachi, dated 4-10-2002, passed in Criminal Bail No, 1069 of 2002.

2. Briefly stated the facts of the case are that petitioner Mst. Fatima Ismail was arrested for the investigation of an offence under section 9(a)(ix) of the National Accountability Bureau Ordinance, 1999. She was remanded into custody initially for 15 days w.e.f, 8-8-2002 for interrogation, which period was further extended. Her husband was first arrested in connection with the same investigation in respect of investment/finance viz. Messrs Alliance Motors and Messrs T.J. Ibrahim & Company. According to the petitioner, she is household lady and has nothing to do with the business affairs of her husband.

3. The petitioner applied for bail, which was refused by a learned Division Bench of the High Court vide impugned judgment, dated 4-10-2002, with the observation to repeat the bail application, if so advised, in accordance with law, after investigation gets completed and reference, if any, is submitted by the NAB Authorities before the competent Accountability Court. Hence, this petition.

4. We have heard the learned counsel for the parties. At the very outset of his arguments Mr. Navid Rasul Mirza, Prosecutor-General NAB, pointed out that this Court while deciding the case of Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607) has held that accused facing charges under NAB Ordinance can approach the High Court under Article 199 of the Constitution and that application under section 497, Cr.P.C. Before the High Court was not maintainable.

5. We have gone through the material available and minutely scanned the impugned judgment.

The point raised by the learned Prosecutor-General is valid and cannot be brushed aside. This Court in the above cited case law observed as under-- "197. It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution 'remain available to their full extent... Notwithstanding anything contained in any legislative instrument enacted by the Chief Executive.' Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Court, the jurisdiction under sections 426, 491, 497, 498 and 561-A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well settled that the superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably."

' Reference may also be made to the case of Anwar Saifullah Khan v. The State and 3 others (2001 SCM R 1040) wherein a Full Bench of the Lahore High Court, while exercising its powers under Article 199 of the Constitution, allowed bail to the petitioner in 4 References already pending against him before the Accountability Court No,1, Lahore.

6. In view of the above settled legal position Mr. Muhammad Ilyas Khan, learned ASC for the petitioner, does not press this petition, which is dismissed as not pressed. Learned counsel further submits that in view of the above settled law, he will again move the High Court for relief. The petitioner is permitted to move the High Court of Sindh again, if so advised. Order accordingly.