ISLAMABAD: A division bench of the Islamabad High Court (IHC) here Thursday reserved its judgment in the petition of National Accountability Bureau (NAB), seeking judicial custody of Captain (retd) Muhammad Safdar, and revoking of his release on post-arrest bail.
An accountability court on Oct 2 issued non-bailable arrest warrants for Captain Safdar and on Oct 9, granted bail to him after he was arrested by the NAB officials at the Islamabad airport and produced him before the court. The accountability court had granted bail to him against Rs 5 million surety bond, which the NAB prosecution had challenged, saying that the trial court had no powers to grant a bail.
The IHC bench comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani reserved the judgment on Thursday. During the proceedings, Capt Safdar was reprimanded by the court for using mobile phone in the courtroom and the phone was taken away. The accused was using the mobile phone of another person, who was accompanying him. Capt Safdar apologised to the court, but the phone was returned only after he submitted a written apology, and the owner of the phone deposited Rs1,000 fine.
A NAB prosecutor, Sardar Muzaffar Abbasi, argued before the court that the anti-graft body was directed by the court to execute non-bailable arrest warrants that they did and arrested Capt Safdar. He said the arrest warrants could not be treated like summons. He said the order of trial court on Oct 9, to release Capt Safdar on bail was illegal as only a high court division bench could grant bail to him under the NAB laws and the trial court had no powers in this regard. The IHC bench questioned the prosecutor that whether NAB always seeks permission from the trial court before arresting an accused. To which the prosecutor replied that they were only pleading for the judicialcustody of Capt Safdar and they had made the same request before the trial accountability court also.
Justice Kayani remarked that a court only had to ensure presence of the accused while hearing a case, and putting an accused behind the bars was the mandate of an investigation agency. NAB can arrest the accused at any stage of investigation and it was the right of an accused to file a pre-arrest bail application, the IHC judge said.
The bench said if the NAB prosecution wanted custody of the accused, it should tell the authorities concerned to issue an order in this regard. Counsel for Capt Safdar, Amjad Pervez advocate, stated that the only purpose of non-bailable arrest warrants was to ensure presence of the accuse in the court and if an accused appears or is produced before the court by the investigation, he can submit surety bonds to get release under Section 19 of the Criminal Procedure Code (CrPC). The only purpose to ensure presence of an accused before the court is to answer the charge, Safdar's counsel said.
Justice Kayani remarked that it is now clear that the bail was not required for an accused, who himself appears or produced before the court, faces trial and continues with his presence.
On Oct 2, the accountability court had issued non-bailable arrest warrants for Capt Safdar after he did not appear before the court despite summons. In this petition, NAB had cited Captain Safdar and the accountability court as respondents. NAB, in its application, said Capt Safdar is an accused in Avenfield Apartments corruption reference.
The accountability court on Sept 14 had summoned him to appear before the court for Sept 19. After Safdar did not appear, the court again summoned him for Sept 26 and even then he did not appear. On Oct 2, the court issued non-bailable arrest warrants for him. On Oct 8, NAB arrested the accused from airport and produced him before the court. The court, instead of remanding him in NAB custody, released him on bail against Rs5 million surety bonds, which is unlawful. NAB contended that the accountability court had no powers to grant bail to the accused under Section 9(b) of the National Accountability Ordinance (NAO) 1999.
