IN THE HIGH COURT OF SINDH, KARACHI
CP No.D-2157, 2158, 2159, 2160, 2161 & 2162 Of 2009. __________________________________________________________________
For Katcha Peshi.
Mr. Khawaja Naveed Ahmed, Advocate for the Petitioner.
Mr. Muhammad Arif, Special Prosecutor, NAB.
The petitioner has filed these petitions for grant of pre arrest bail in NAB References No.12/2003 to 16/2003 & 29/2002 pending in Accountability Court No.1, Karachi. The petitioner was granted interim pre arrest bail through order dated 02.10.2009.
Learned counsel for the petitioner has contended that two of the main accused namely Ashiq Ali and Raees Ahmed were convicted and sentenced by the Accountability Court No.1, Karachi in reference No. 29/2002, which conviction was challenged by them by way of Cr. Accountability Appeals No.6 & 7 of 2004, in this Court. By judgment dated 01.11.2005 both the Accountability Appeals were allowed and the appellants were acquitted on benefit of doubt. He further contends that the Chairman NAB had filed Cr. Petitions No.79-K & 80-K of 2006 in the Hon'ble Supreme Court against the judgment passed by this Court which petitions were dismissed vide order dated 18.05.2006 by the Hon'ble Supreme Court maintaining the judgment passed by this Court. Learned counsel states that based upon the judgment of this Court and the Hon'ble Supreme Court other co-accused in NAB References No.12 to 16 of 2003 & 29/2002 were acquitted under Section 265-K Cr.P.C. and that present petitioner being out of country, his case remained on dormant file. He states that the petitioner has now surrendered himself before the Accountability Court and is ready to face the proceedings against him. He further states that as the case of the petitioner is similar to those of Ashiq Ali and Raees Ahmed there is no likelihood of the petitioner being convicted in the Reference Applications. He requests that the interim pre arrest bail granted to the petitioner may be confirmed.
Learned Special Prosecutor NAB does not dispute the facts so stated by the counsel for the petitioner but states that an appeal has been filed by the Chairman NAB before this Court against the acquittal of the co-accused under Section 265-K Cr.P.C., which is still pending. He further states that the petitioner has not alleged any malafide.
We have considered the submissions made by the learned counsel and have gone through the record. Apparently co-accused Ashiq Ali and Raees Ahmed were convicted by the Accountability Court No.1 but their conviction was set aside by this Court and such order of this Court was maintained by the Hon'ble Supreme Court of Pakistan. The Accountability Court has given the benefit of the order of this Court and of the Hon'ble Supreme Court to other co-accused and have acquitted them under Section 265-K, Cr.P.C. Although appeal filed against the said order is stated to be pending but the fact remains that all the co-accused have been acquitted. The case of the petitioner being apparently of similar facts and circumstances as that of Ashiq Ali, Raees Ahmed and other co-accused, there is a possibility that the petitioner may also not be convicted for the offence alleged against him, we find that the petitioner apparently has made out prima facie case for grant of pre arrest bail. Though the question of malafide has been raised by the Special Prosecutor, in view of the orders passed by this Court as well as by the Hon'ble Supreme Court and the order of Accountability Court under Section 265-K Cr.P.C. such argument in our view is of no consequence. We, therefore, allow these petitions and confirm the order dated 02.10.2009 granting interim pre arrest bail to the petitioner on same terms and conditions.
J U D G E
J U D G E