The Chairman National Accountability Bureau, Islamabad And Another vs Asif Baig Muhammad And Other
This petition for leave to appeal was filed by the National Accountability Bureau (NAB) against an order of the High Court of Sindh, which had admitted the respondent to bail under Article 199 of the Constitution of Pakistan 1973. The respondent was arrested by NAB in connection with an alleged illegal allotment of land reclaimed from the Malir river, causing a loss of over 954 million rupees to the exchequer. The core legal question was whether the High Court had the jurisdiction to grant bail to an accused facing charges under the National Accountability Ordinance 1999, notwithstanding the statutory bar on bail contained in Section 9(b) of the Ordinance. The Supreme Court of Pakistan dismissed the petition and declined leave to appeal. Relying on its landmark precedent in Khan Asfandyar Wali v. Federation of Pakistan, the Court held that the superior courts retain their constitutional jurisdiction to grant bail under Article 199 of the Constitution, which remains fully available and independent of statutory provisions like Section 497 of the Code of Criminal Procedure 1898 or Section 9(b) of the National Accountability Ordinance 1999.
- Does the High Court retain jurisdiction under Article 199 of the Constitution of Pakistan 1973 to grant bail to an accused facing charges under the National Accountability Ordinance 1999?
- Is Section 9(b) of the National Accountability Ordinance 1999 capable of overriding or curtailing the constitutional powers of the High Court under Article 199 of the Constitution of Pakistan 1973?
- Can an application for bail under Section 497 of the Code of Criminal Procedure 1898 be maintained by an accused facing charges under the National Accountability Ordinance 1999?
- Article 199, Constitution of Pakistan 1973
- Section 9(b), National Accountability Ordinance 1999
- Section 497, Code of Criminal Procedure 1898
- Section 426, Code of Criminal Procedure 1898
- Section 491, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
JUDGMENT SYED DEEDAR HUSSAIN SHAH, J.-- Petitioners seek leave to appeal against the order of the High Court of Sindh, Karachi dated 18.7.2001, passed in Const. Petition No. D- 1283 of 2001.
2. This matter relates to an alleged loss of more than 954 million rupees to the Exchequer through an illegal allotment of land reclaimed from Malir river. Land measuring 341.68 acres was allotted to one Mst. Gulnar Begum, were of Agha Tarique Khan, the then Provincial Minister. After execution of the lease deed in favour of Mst. Gulnar Begum, the land was purchased by respondent Asif Baig Muhammad, through a deed of conveyance and assignment of lease, in the name of M/s. Marina City Development, in his capacity as partner. As the department had cancelled the allotment and lease in favour of Mst. Gulnar Begum, therefore, respondent No. 1 filed a civil suit to protect his interest and title to the property. In this connection respondent No. 1 was arrested by NAB, and the Administration Judge Accountability Court, Karachi, remanded him to NAB custody from time to time, and finally on 26.6.2001 he was remanded to the judicial custody, as the investigation was complete and the NAB authorities were to decide as to whether a Reference may be filed against him or not.
3. Feeling aggrieved respondent Asif Baig Muhammad filed a Constitution Petition in the High Court of Sindh, which was allowed vide impugned order dated 18.7.2001, whereby he was admitted to bail subject to furnishing security in the sum of Rs. One million and P.R. Bond in the like amount to the satisfaction of the Nazir of the High Court. Hence, this petition by NAB.
4. Mr. Akhlaq Ahmed Siddiqui, learned ASC/AOR for the petitioners, inter alia, contended that the impugned order is against the principles of law and justice and the same is liable to be set aside, and the writ issued by the learned High Court may be recalled in the interest of justice and the dictum laid, down by this Court.
5. We have considered the arguments of the learned counsel for the petitioners and minutely perused the material available on record, It would be advantageous to mention here that this Court while deciding the case of Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 S.C. 607) = (2001 PSCC 881) has held that accused facing charges under NAB Ordinance can approach the High Court under Article 199 pf the Constitutional and that application under Section 497, Cr.P.C, before the High Court was not maintainable. 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 Courts, 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) = (2001 PCrR 506 = 2001 PSC/Crl. 526) 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, In our considered view, the impugned order dated 18.7.2001 is well-reasoned, which is not open to exception.
6. For the foregoing facts and reasons this petition has no merit and substance, which is hereby dismissed and leave to appeal declined.