ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-5458 of 2020

(Haji Adam Jokhio … versus ……….. National Accountability Bureau & Others)

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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)

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Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

27.10.2021

M/s. Abbas Rasheed Razvi & Shoaib Ali Khatian, advocates a/w petitioner Haji Adam Jokhio, who is present on interim pre-arrest bail

Mr. Irfan Memon, DAG

Mr. Shahbaz Sahotra Special Prosecutor NAB

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NAIMATULLAH PHULPOTO, J.-- This constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by petitioner Haji Adam Jokhio son of Abdul Rahim for seeking pre-arrest bail in an inquiry initiated against him and others by NAB in the matter of Gulshan-e-Elahi, Gulshan-e-Muhammad and Muslim City Projects of M/s Karim Housing (Pvt.) Ltd., Karachi.

2. Learned counsel for petitioner/accused Haji Adam Jokhio argued that Section 498 of the Code of Criminal Procedure, 1898, confers original and concurrent jurisdiction on the High Court and Court of Sessions, now the National Accountability (Second Amendment) Ordinance XXIII, 2021, has been promulgated whereby under Section 7, powers to deal with bail matters have also been conferred upon the Courts having been established under the NAO, 1999. It is submitted by the learned counsel for accused that in case of availability of concurrent jurisdiction with two forums, lower Court was required to be moved in the first instance, but it is argued that it is not an inflexible rule, because in exceptional case the jurisdiction of High Court could be invoked. Lastly, it is argued that present constitution petition for bail before arrest being one of such exceptional cases, the same may be directly entertained by this Court. In support of his submissions, reliance is placed upon the case reported as PLD 1969 SC 187 (Adnan Afzal vs. Capt. Sher Afzal).

3. Learned Special Prosecutor NAB argued that Accountability Courts have powers to deal with the bail matters in view of the National Accountability (Second Amendment) Ordinance XXIII of 2021 and raised a preliminary legal objection that bail before arrest application is not maintainable because in the first instance application for pre-arrest bail should be moved before the Accountability Court concerned.

4. The factual background of promulgation of the Ordinance is that in the case of Tallat Ishaq vs. The National Accountability Bureau through Chairman and Others (PLD 2019 SC 112), the Hon’ble Supreme Court has observed that the original intent behind introduction of section 9(b) of the National Accountability Ordinance, 1999, ousting jurisdiction of the courts regarding grant of bail under the said Ordinance already stands neutralized by opening of the door for bail through exercise of constitutional jurisdiction of a High Court and resultantly the entire burden in that regard was shouldered by the High Courts which was a huge and an unnecessary drain on their precious time, therefore, the Hon’ble Supreme Court recommended for amendment in the National Accountability Ordinance, 1999, by conferring powers upon the Accountability Courts to deal with the bail matters. Relevant portion of the judgment is reproduced as under:

“25. Before parting with this judgment we would like to observe that the original intent behind introduction of section 9(b) of the National Accountability Ordinance, 1999 ousting jurisdiction of the courts regarding grant of bail in a case under the said Ordinance already stands neutralized by opening of the door for bail through exercise of constitutional jurisdiction of a High Court and resultantly the entire burden in that regard is being shouldered by the High Courts which is a huge and an unnecessary drain on their precious time. Apart from that the High Courts and this Court have always felt difficulty in adjusting the requirements of "without lawful authority" and "of no legal effect" relevant to a writ of certiorari (Article 199(1)(a)(ii) of the Constitution) with the requirements of bail provided in section 497, Cr.P.C. In the changed scenario the legislature may, if so advised, consider amending the National Accountability Ordinance, 1999 appropriately so as to enable an accused person to apply for his bail before the relevant Accountability Court in the first instance. It is also recommended that the unrealistic timeframe for conclusion of a trial specified in section 16(a) of the National Accountability Ordinance, 1999 may also be reconsidered and revisited by the legislature.”

5. In view of the recommendations of the Hon’ble Supreme Court, now, the National Accountability (Second Amendment) Ordinance XXIII, 2021, has been promulgated on 07.10.2021, whereby under Section 7, powers to deal with the bail matters have been conferred upon the Courts having been established under NAO 1999. The jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are, therefore, to be exercised to prevent miscarriage of justice and abuse of NAO, 1999. Such jurisdiction is not to be exercised as a substitute of power under sections 426, 491, 497, 498 and 561-A, Code of Criminal Procedure, 1898, liberally and indiscriminately converting High Court into wholly Court of ordinary criminal jurisdiction, as laid down in the case reported as PLD 2019 SC 250 (National Accountability Bureau vs. Murad Arshad).

6. In the view of above legal position, it is observed that superior Court can entertain application for pre-arrest bail and grant relief to the accused in appropriate cases where accused could inter alia establish that he was prevented from approaching the lower Court concerned in the first instance. An accused normally can approach in the first instance the Court of Sessions/NAB Courts (now in view of the National Accountability (Second Amendment) Ordinance XXIII, 2021) for bail before arrest as propriety so demands but depending on the compelling circumstances, an accused can approach the High Court directly by invoking its concurrent jurisdiction. In the present case, no compelling circumstances have been pointed out.

7. For the above stated reasons, instant constitution petition is converted to an application for protective bail. Without touching the merits of the case, petitioner Haji Adam Jokhio son of Abdul Rahim is granted protective bail for a period of 10 days from today against the same surety already furnished by the petitioner in this petition, to enable him to surrender before the Administrative Judge, Accountability Courts Sindh at Karachi at the first instance. Learned Administrative Judge shall hear the pre-arrest bail application of the petitioner himself or he will make over/transfer the same to other Accountability Court having jurisdiction in the matter for disposal in accordance with law.

The instant constitution petition is accordingly disposed of.

J U D G E

Gulsher/ PS