CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and another vs ASIF BAIG MUHAMMAD and others

' SYED DEEDAR HUSSAN SHAH, J.---Petitioners seek leave to appeal against the order of the High Court of Sindh, Karachi, dated 18-7-2001, passed in Constitution 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, wife 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 Messrs 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 videimpugned 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 Advocate Supreme Court/Advocate-on-Record for the petitioners, inter alia, contended that the impugned order is against the principles of laws and justice and 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 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. The 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 561A 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,I, Lahore. In our considered view, the impugned order, dated 18- 7-2001 is well reasoned, which 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.