2016 P Cr. L J 1325
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J
MUHAMMAD HANIF ---Petitioner
Versus
NATIONAL ACCOUNTABILITY BUREAU ISLAMABAD through Chairman and 2
others ---Respondents
C.P. No. 1235 of 2015, decided on 14th January, 2016.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 18(g), 24 & 9(v)(ix)(xii) ---Penal Code (XLV of 1860), Ss. 468 & 471--- Forgery for the
purpose of cheating, using as genuine a forged document and corruption and corrupt practices ---
Bail, refusal of ---Contention of accused for grant of bail was that considerable time would
consume in completion of trial ---Validity ---Second application seeking bail on the same ground
had been declined ---No new ground for bail was a vailable to the accused ---Constitutional
petition was dismissed in circumstances.
Amir Masih v. The State 2013 SCMR 1059 rel.
Raja Rab Nawaz and Barrister Adnan Kasi for Petitioner.
Chaudhry Mumtaz Yousuf, Deputy Prosecutor General NAB and Riaz Akhtar Tareen,
Additional Deputy Prosecutor General NAB for the State.
Date of hearing: 6th January, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The allegation against the petitioner is that he was
appointed as Junior Clerk in WAPDA in the year 1987 and promoted as Accounts Officer in the
year 1989, and subsequently promoted as Divisional Accounts Officer (BPS -17). It was alleged
that during the years 1987 to 2014, petitioner acquired movable and immovable properties
disproportionate to his known source. On the aforesaid allegation, a Reference No.01 of 2015
under section 18(g) read with section 24 of the National Accountability Bureau Ordinance, 1999
(hereinafter "the NAB Ordinance, 1999") was filed before the Accountability Court Balochistan,
in the mont h of March, 2015. The charge against the petitioner was framed on 23rd April, 2015,
which reads as under:
"That you accused (Muhammad Hanif), started your services as Junior Clerk from 20- 01-
1987 in District A/Cs AEB, Quetta and you accumulated assets/pr operties by illegal
means and beyond your non sources of income to your name and to in the name of your
associates/benamidars the detail of the same is as under:
S# Description of
properties Ostensible
Owner
Name Year of
purchase Property
purchased
value Current
market
value
1 7851 sq. ft. house
No. 19- B Thoghi
Housing Scheme
Quetta Cantt. Syed Shahid
Hussain son
of Qrar
Hussain 2012 -2013 52500000 76725500
2 240 sq yds house
No.119/19- C Jinnah
Town, Quetta Kalsoom
Akhtar wife
of
Muhammad 2003 -2004 3300120 18894884
Hanif
3 1 canal house No.
944 phase III,
Baharia Town,
Rawalpindi Amir Yasin
son of
Muhammad
Azhar Yasin 2009 -2010 10150000 21792000
4 67 canal, 18 Marla
land in 141/TDA
Tehsil and Distt.
Layyah Amir Yasin
son of
Muhammad
Azhar Yasin 2009 5887500 5887500
5 4 Canal, 5 Marla
land in 141/TDA
Tehsil and Distt.
Layyah Muhammad
Hanif 2009 500000 500000
6 10 marla, plot No.
134, Sector G,
Phase VIII Baharia
Town Rawalpindi Muhammad
Hanif 2010 945000 3200000
7 Crola Car bearing
Registration No.R -
8264 Model 1986 Muhammad
Hanif 2012 250000 250000
8 Prado Jeep bearing
Registration No.
BD-1591 Model
1996 Asim Khan 2011 2160000 1350000
9 Crola GLI Car,
bearing Registration
No. APH -873,
Model 2007 Moazzam Ali
Khan 2008 -2009 980000 750000
10 Suzuki Jeep,
bearing Registration
No. JAA- 072 Sibi
Model 1987 Muhammad
Hanif 2014 250000 250000
11 Jewelry Muhammad
Hanif 2014 700000 700000
12 Total value of case
properties 70622620 131108884
Total value of case properties Purchased price
7762260 Current price
131108884
Rent from alleged assets Jinnah
house rent (45000 x 6) 2700000 2700000
Baharia House Rent (85000 x
30) 2550000 2550000
Thougri house rent (49000 x 18) 882000 882000
Layyah land rent (100000 x 5) 500000 500000
Illegal money recovered from
accused house 2100000 2100000
Total liability 83924630 137410884
Less savings and other incomes -12035852 -12035852
Guilt liability of accused 71888768 125375032
That you accused ( Asim Khan) being the proprietor of Asad Construction Company and
power concrete contractors, abetted the main accused Muhammad Hanif to protect his
illegal unjustified properties and to be kept save from the eyes of law, further you
accused also purchased properties and the accounts on your name were used to keep the
commission money and also used to get tenders and quotations, due to influence of
Muhammad Hanif in the QESCO as Labor Union Vice President and payment of
commission to him which used purchased the assets illegally specially house from Syed
Shahid Hussain.
Thereby, you both accused persons along with absconding accused have accumulated
huge property worth Rs.71888768/ - whereas current market price i.e. Rs.125375032/ -
beyond your known sources of income with assistance aid and abetment of co -accused
persons, therefore, the all accused persons have committed offences of Corruption and
Corrupt Practices as defined under section 9(v); (ix) and (xii) read with sections 468 and
471, P.P.C. (offences of schedule of National Accountability Ordinance, 1999)."
2. The petitioner during the investigation of the Reference sought pre -arrest bail by way of
filing Constitutional Petition No.590 of 2014, which was dismissed by this Court on 5th January
2015. T he petitioner assailed the aforesaid order before the Hon'ble Supreme Court of Pakistan
in CPLA No. 17 of 2015, however, prior to hearing, the petitioner was arrested on 12th January,
2015. Thereafter, the petitioner's post arrest bail was also declined by this Court in C.P. No.69 of
2015 vide judgment dated 13th April 2015 on merits. The petitioner filed second post arrest bail
by way of filing Constitutional Petition No. 562 of 2015 on the ground that the prosecution
examined nine witnesses and considerab le time would consume in completion of evidence of the
prosecution and also of the defence. This Court vide order dated 7th July 2015 dismissed the
same. The relevant paragraph is reproduced herein below:
"The papers annexed with the petition described the fact that previously an application to
the effect was filed by the applicant, but the relief was declined by this court vide order
dated 13th April 2015. The petitioner approached the Honorable Supreme Court for the
purpose by filing an appeal against the order of this court. The request was declined vide
order dated 11th May, 2015. The petitioner repeated the application for the same relief
with the same assertions with no new facts. The facts observed that except receiving of
the Reference to the trial court, framing of charge, imitating the trial and recording
statements of nine witnesses there are no new facts for further consideration of the
matter. The allegations against the petitioner and the docume nts pertaining to him were
already considered by this court while entertaining the application filed for the purpose
by the petitioner and findings were recorded to the effect in order dated 13th April, 2015,
thus need not be repeated. The statements of the witnesses were gone through, but they
are less helpful to the petitioner at this stage as the witnesses neither exonerated the
petitioner from the charge nor stated anything which could make out a ground for his
release on bail. As far the case of co -accused Asim Khan is concerned, it was on different
footings, as co- accused was charged for aiding, abetting and assisting the principal
accused Muhammad Hanif (the present petitioner), thus rule of consistency would not be
applicable in the circumstances."
3. The petitioner assailed the order dated 7th July 2015 of this Court in Civil Petition No.
2262 of 2015 before the Hon'ble Supreme Court of Pakistan, which was dismissed with the
following observations:
"On reconsideration, learned counsel for the petit ioner does not want to press this petition
provided a direction is issued to the learned trial Court to decide the NAB Reference
expeditiously. Dismissed accordingly."
4. The petitioner through the instant petition has sought post arrest bail for third t ime on the
same grounds that the prosecution has produced 27 witnesses and considerable time would
consume in completion of evidence of the prosecution and also of the defence. The learned
counsel for the petitioner was apprised that the previous Constitut ional Petitions for post arrest
bail were authored by the Hon'ble Mrs. Justice Syeda Tahira Safdar, and it is appropriate that the
instant petition be heard by the same Judge after winter vacation, but the learned counsel was
pressing hard and submitted that this may be decided during winter vacation. Since, during
vacation, same bench is not available, therefore, in the aforesaid circumstances, the learned
counsel argued his case.
5. Learned counsel for the petitioner contended that the evidence of the prosecution
nowhere indicates that he had made assets beyond his known sources; that the only evidence
relied upon by the prosecution is the statement of co- accused Asim Khan, who has been made
approver in violation of law; that 27 witnesses had been examined by the prosecution and 36
witnesses are yet to be examined, besides three accused persons are facing trial and they would
also produce their defence witnesses, thus it is not possible for the trial Court to conclude the
trial in near future, therefore, on the ground of delay, the petitioner is also entitled for grant of
bail.
The learned Deputy Prosecutor General, NAB assisted by the Deputy Additional
Prosecutor General contended that on the basis of same evidence, pre -arrest bail and twice post
arres t bail of the petitioner had been dismissed upto the Hon'ble Supreme Court; that there is no
fresh ground in the instant petition, therefore, the same is not maintainable.
6. We have heard the learned counsel for the parties and have gone through the rec ord of the
case. We find that in the second post -arrest bail assailed through C.P. No. 562 of 2015, this Court
(Hon'ble Mrs. Justice Syeda Tahira Safdar) vide order dated 7th July, 2015 declined post -arrest
bail on the ground that an application to the eff ect was filed but the relief was declined on 13th
April, 2015; the petitioner approached the Hon'ble Supreme Court but his bail was declined on
11th May, 2015. The petitioner further approached the Hon'ble Supreme Court in Civil Petition
No. 2262 of 2015, which was dismissed on 7th October, 2015.
7. In the instant petition, there is no new ground for seeking post -arrest bail. The argument
of learned counsel that at the time of filing C.P. No. 562 of 2015, nine witnesses were examined
by the prosecution and now the prosecution examined 27 witnesses. This contention of the
learned counsel for the petitioner is untenable, because while dealing bail to the petitioner in C.P.
No. 562 of 2015, it was held that "the statements of the witnesses were gone through t hey are
less helpful to the petitioner at this stage as the witnesses neither exonerated the petitioner from
the charge nor stated anything, which could make out a ground for his release on bail".
8. The aforesaid findings were assailed by the petitioner in Civil Petition No.2262 of 2015
before the Hon'ble Supreme Court of Pakistan, which was not pressed by the petitioner and was
dismissed on 7th October 2015. The grounds agitated in the instant petition were available to the
petitioner, when he did not press his bail before the Hon'ble Supreme Court, therefore, the instant
petition is not maintainable for want of merit and any fresh ground. In this respect, the case of
Amir Masih v. The State, 2013 SCMR 1059 may well be referred where the Hon'ble Supreme
Court while considering such aspect declined bail and observed as under:
"Learned High Court has dismissed the bail application of the petitioner on the ground
that earlier application filed by him was dismissed as withdrawn vide order dated 5- 12-
2012. I n the case of The State through Advocate -General, N. -W.F.P. v. Zubair and 4
others (PLD 1986 SC 173) it was held by this Court that the grounds which were
available at the time of withdrawal of the earlier application shall be deemed to have been
considere d and dealt with and the second application can only be filed on the fresh
ground: The relevant portion is reproduced as under: --
"8. It might be useful to mention here that the second or the subsequent bail application to
the same Court shall lie only o n a fresh ground, namely, a ground which did not exist at
the time when the first application was made. If a ground was available to the accused at
the time when the first bail application was filed and was not taken or was not pressed, it
cannot be considered as a fresh and made the basis of any subsequent bail application
..................."
In view of the above, the Constitutional Petition No. 1235 of 2015 is dismissed and the
bail is declined accordingly.
ZC/34 -Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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