IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P.No.D- 709 of 2017.
C.P.No. D -1351 of 2018.
C.P.Nos.D-1830 of 2019 &
CP No.D-1061 of 2020.
|
Date |
Order with signature of Judge |
Before:
Mr.Justice Nazar Akbar
Mr.Justice
Muhammad Faisal Kamal Alam
-
Petitioners:
1. Ahmed Khan Solangi
In
C.P.No.D- 709 of 2017 Through Mr.Nisar Ahmed Bhanbhro
Advocate.
2. Muhammad Ali Panhwar
In
C.P.No.D- 1351 of 2018. Through Mr.Masood Rasool Babar
Advocate.
3. Muhammad Saleem Sahito
In
C.P.No.D- 1830 of 2019 Through Mr.Abdul Karim Luhrani
Advocate.
4. Mst.Nazia
Akram
In
C.P.No.D – 1061 of 2020. Through Mr.Allah Bux Gabole
Advocate.
Respondents:
Chairman
NAB and others. Through Mr.Muhammad
Zubair Malik, SP NAB.
Date of Hearing
03rd March, 2021.
O R D E R.
NAZAR
AKBAR, J:- By this common order, we intend to
dispose of the above captioned constitutional petitions. Petitioners Ahmed Ali Solangi and Muhammad Ali Panhwar
are seeking post arrest bail whereas
Petitioners Muhammad Saleem and Mst.Nazia
Khan seeking confirmation of interim pre-arrest bail in Reference No.06 of
2016, pending adjudication before the Accountability Court at Sukkur.
2. Briefly stated that the petitioner alongwith
others 59 accused in furtherance of conspiracy and knowingly in connivance with
staff of District Accounts Office (DAO) Naushahro Feroze, in collusion with staff of different branches of
National Bank of Pakistan (NBP) and United Bank Limited (UBL) at Naushahro Feroze had committed offence of corruption, corrupt
practices, criminal negligence, fraud, misappropriation, criminal breach of
trust, embezzlement of funds of public exchequer and misuse of authorities and
caused loss to the Government exchequer to the tune of Rs.155,475,111/= (Rupees Fifteen Crore,
Fifty Four Lac, Seventy Five Thousand and One Hundred Eleven). On the basis of
findings of inquiry, the complaint was converted into an investigation and the
I.O was authorized by the D.G NAB for conducting investigation. After
completing the investigation, the aforementioned reference was filed against 63
persons including the petitioners/accused before the Accountability Court,
Sukkur. But during the trial as many as 43 accused entered into plea bargain
and stand convicted during the period from 07.09.2016
to 12.12.2019 and nine accused are
absconders. At present hardly 20 accused
are facing trial including the four petitioners whose counsel have argued their
cases today and two other petitioners viz Jameel Ahmed Babar (C.P.No.D-1099/2018)
and Muhammad Arif Teevno (C.P.No.D-389/2020) have requested for adjournment. The two
petitions have been adjourned at the request of their counsel.
3. Learned counsel for the petitioners seeking
post arrest bail, mainly contended that the petitioners have been implicated in
this case by the NAB authorities with malafide
intention and ulterior motives; that no such loss has been caused by them to
the Government exchequer. Learned counsel for the petitioner contended that
petitioners Muhammad Ali Panhwar and Ahmed Ali Solangi had earlier filed petitions seeking bail before
arrest and they were on interim bail in C.P.No.D-4499/2015 & C.P.No.D- 3694/2016 respectively. However, this Court had
not confirmed their bail before arrest on 27.07.2017
and therefore both were arrested and in jail for almost last 04 years without
any substantial progress in the trial though this Court while dismissing their
petitions for pre-arrest bail has issued specific directions to the
Accountability Court to conclude the trial within a period of six months. Therefore the petitioners
have also pressed ground of delay in the proceedings beyond a period of two
years to claim entitlement of bail. In this context the learned counsel has
also referred to the order of the dismissal of their earlier petitions in which
the delay in trial by NAB authorities, has been predicted by
this Court. Relevant portion of the order passed in earlier bail petitions
available at page 25 annexure ‘D’ is reproduced as under:-
“119. The
Accountability Court proceeding with this reference is directed to decide the
same within a period of six months
from the date of this order a copy of which shall be immediately transmitted by
the office to the concerned Accountability Court.
120. Before parting with this order we have
observed with some concern that in number of NAB cases in Sukkur (including
this reference) there are more that 20 accused.
Although it is in NAB’s discretion as to how many accused it places in a
reference based on the evidence before it in our view NAB seriously needs to
consider whether putting so many accused in one reference will lead to an
expeditious disposal of the case in favour of the
Prosecution. For example, in the reference in the instant case there are 63
accused each of whom may have their own counsel which may entail 63 separate
cross examinations of each prosecution witness by 63 different counsel for the accused. Delays are also likely to be caused due to the absence of counsel,
absence of accused, the charge having to be reframed every time an absconder
surrenders before the accountability court (in this case there appear to be
over 20 absconders) which may lead to extremely prolonged trials and use up large
amounts of NAB’s resources which seems to be against the letter and spirit of
the NAO as per its preamble and S.16(a) which aimed to guarantee speedy trials especially
bearing in mind that no statutory bail
is available in NAB cases and only the ground of hardship can be used as a
ground for delay in completing the trial. In this respect we direct the office
to forward a copy of
the last 2 order to the Chairman NAB and DG NAB Sukkur for their
consideration”.
4. In
view of the above, learned counsel for petitioners who are in jail contended
that almost 04 years delay in the trial beside creating
hardship, is also violation of the directions of this Court. Both the learned counsel for the petitioners as well as
NAB have relied upon the case of Tallat Ishaq v National, Accountability Bureau through Chairman,
and others (PLD 2019 S.C 112) and referred
to para-23 of the judgment which is reproduced as under:-
“23. The
survey of the precedent cases detailed above and a careful reading of the
judgments rendered or orders passed in those cases leads us to conclude as
follows:
(a) Section
16(a) of the National Accountability Ordinance, 1999 speaks of prosecution of
an accused person in an Accountability Court and hearing of the case by such
Court on day to day basis so as to be disposed of within thirty days and it
does not speak of the period of custody of the accused person before or during
the trial.
(b) Section
16(a) of the National Accountability Ordinance, 1999 does not contemplate or
provide for bail for an accused person if the timeframe for the trial mentioned
therein is overstepped. In fact section 9(b) of the said Ordinance expressly
ousts the jurisdiction of an Accountability Court in
the matter of grant of bail to an accused person on any ground whatsoever.
(c) The
word "shall" used in section 16(a) of the National Accountability
Ordinance, 1999 has been used in the context of conclusion of a trial by an
Accountability Court and it is directory in nature and not mandatory because it
does not provide for a penalty or a consequence in case of its nonobservance or
non-compliance. It does not provide that if the stipulated timeframe is not
adhered to by an Accountability Court in the matter of
conclusion of a trial then the prosecution of the accused person would stand
terminated and he would be deemed to have been acquitted or that the accused
person would be entitled to be admitted to bail on such ground.
(d) In
an appropriate case through exercise of its jurisdiction under Article 199 of
the Constitution a High Court may grant bail to an accused person arrested in
connection with an offence under the National Accountability Ordinance, 1999
and section 9(b) of the said Ordinance does not affect the jurisdiction of a
High Court conferred upon it by the Constitution. The constitutional
jurisdiction of a High Court is, however, an extraordinary jurisdiction meant
to be exercised in extraordinary circumstances and not in run of the mill cases
or as a matter of course.
(e) There
is hardly any precedent available where a High Court or this Court had admitted
an accused person to bail exclusively on the ground that he had remained in
custody for over thirty days or his trial had not concluded within thirty days
in terms of section 16(a) of the National Accountability Ordinance, 1999,
except a couple of cases wherein the factual background and the ratio decidendi of the case of Aga Jehanzeb
(supra) had not been correctly appreciated on account of lack of proper
assistance.
(f) Ordinarily
bail is allowed to an accused person on the ground of delay only where the
delay in the trial or the period of custody of the accused person is shocking,
unconscionable or inordinate and not otherwise. The primary consideration for
grant of bail on the ground of such delay is undue hardship and more often than
not prima facie merits of the case against the accused person are also looked
into before admitting him to bail on the ground of delay.
(g) Before
admitting an accused person to bail on the ground of hardship caused by a
shocking, unconscionable or inordinate delay a High Court or this Court also
looks for the reasons for the delay and if some significant or noticeable part
of the delay is found to be attributable to the accused person then the relief
of bail is withheld from him.
(h) Even
in cases of delay ordinarily bail is not granted straightaway and a direction
is issued to the trial court in the first instance to conclude the trial within
a period fixed for the purpose by the Court itself (as opposed to the time
fixed by section 16(a) of the National Accountability Ordinance, 1999 which has
already expired). In a case where the Court fixes a time for conclusion of the
trial sometimes the Court also observes that in case of non-compliance of the
Court's direction the accused person would automatically stand admitted to bail
and on other occasions the Court observes that in case of non-compliance of the
Court's direction the accused person may approach the High Court again for his
bail.
(i) Even
in cases where a direction is issued by the High Court or this Court regarding
conclusion of a trial within a specified period fixed by the Court for the
purpose of admission of the accused person to bail upon non-compliance of such
direction is not always automatic, be it a case under the National
Accountability Ordinance, 1999 or under any other law. In the
cases of Ashok v. The State (1997 SCMR 436), Jadeed Gul v. The State (1998 SCMR 1124), Muhammad Aslam
v. The State (1999 SCMR 2147) and Aga Jehanzeb
v. N.A.B. and others (2005 SCMR 1666) the accused person was admitted to bail
or was deemed to have been admitted to bail in such an eventuality but in the
case of Nisar Ahmed v. The State and others (PLD 2016
SC 11) this Court had refused to admit the accused person to bail even on such
a ground. It goes without saying that a direction issued by a superior Court to
the trial court to conclude a trial within a specified period is an
administrative direction and non-compliance of such a direction by the trial
court for whatever reason may not entitle the accused person to claim bail as
of right.
5. Learned
Special Prosecutor NAB has contested the ground of hardship and delay for grant
of bail. He claims that the delay is to be examined by calling the report from
the trial court to ascertain whether a case for bail on delay in the case is
made out or not. However, learned SP NAB has not been able to dispute the
observations of this Court reproduced above from the order whereby bail before
arrest petitions were dismissed. In the above referred order Honourable Bench has categorically pointed out that the
delay amongst other is likely to be
caused when the charge having to be reframed
every time an absconder surrender before the Accountability Court. Learned
SP NAB has confirmed that recently one more accused who was absconder in the
case, has surrendered and charge has been amended. However, he submits that a
separate charge has been framed against the absconder on his appearance before
the trial Court and same Reference has been treated as Reference No.6-A/2016
for the newly surfaced accused. The reference in hand is Reference No.6/16 and
evidence in fresh Reference No.6-A/2016 is in progress. He conceded that
Reference No.6-A is one and the same Reference which the present petitioners
are facing and even if it is to be decided separately, it would also be decided
simultaneously by the Accountability Court. Admittedly, there are other
absconders, who may surrender in future. Therefore, the delay beyond six months time given by this Court on 27.07.2017 cannot be
attributed to the petitioners, who are in jail for the last three and half
years by now.
6. Despite above stated position with regard
to the plea of hardship and delay in the trial for almost four years, learned
counsel for the petitioners have submitted that the petitioners
are ready to deposit the alleged amount of loss determined by the NAB against
each petitioner. Learned Special
Prosecutor NAB assisted by I.O has objected to the acceptance of such proposal
even if the entire amount is secured. He has contended that in the case of Rai Muhammad Khan (2017 SCMR 1152) the Honourable
Court has disapproved this kind of concession at the bail stage. However, on query he has placed on record
statement showing individual liability of the four petitioners duly signed by
the I.O NAB Sukkur and learned SP NAB. It is taken on record. According to this
statement the alleged loss caused by the petitioners is as under:-
|
S.No. |
Name |
Individual
Liability |
|
1. |
Muhammad
Ali Panhwar |
Rs.5,33,93,871/- |
|
2. |
Ahmed
Ali Khan Solangi |
Rs.45,97,524/- |
|
3. |
Muhammad
Saleem Sahito |
Rs.73,76,482/- |
|
4. |
Mst.Nazia Akram |
Rs.7,79,482/- |
7. We have heard arguments advanced by the
learned counsel for the parties and perused the material available on record.
8. The
contention of learned counsel for the NAB that the Honourable
Supreme Court in the case of Rai Mohammad Khan
reported in 2017 SCMR 1152 has been rebutted by learned counsel for the
petitioners by placing reliance on two unreported judgments of Honourable Supreme Court passed in (1) C.P.No.
2300 of 2018 & C.P.No.1175 of 2020. In Civil
Petition No.1175-K/2020, the relevant portion of the order dated 26.11.2020
is reproduced as under:-
“We have observed that bulk of
accused nominated in the reference are enlarged on bail either due to
acceptance of plea bargain or had deposited their incurred liability with the
trial court. Otherwise we have been informed that as per order of
Accountability Court, Sukkur dated 27.07.2020 a letter bearing No.ABL/JCD/2(20) dated 27.07.2020
from Allied Bank Limited Jacobabad Branch
was received to the trial court wherein it is submitted that DD bearing
No.BBB1351295 dated 20.07.2020 amounting to Rs.34,72,100/- is genuine and the
entry of the same has been made in the register in the name of trial court. It is noticed that the pre-arrest bail of
co-accused Mujeeb-ur-Rehman
has been confirmed on deposit of
pay-order in civil petition No.277-K/2020 by this Court vide order dated
15.07.2020. The petitioner has already deposited his individual liability of
Rs.34,72,100/- before the learned trial court and
leave this case has already been granted on 07.08.2020 at Karachi Branch
Registry of this Court, hence, in the interest of safe administration of
criminal justice, the petitioner be released on bail subject to his furnishing
bail bond in the sum of Rs.5,00,000/= with two sureties each in the like amount
to the satisfaction of the learned trail court”.
9.
Similar view was taken by Honourable
Supreme Court in another judgment in the case of Mumtaz
Ali v The State through Chairman NAB in C.P.No.1149-K of 2018. This judgment of
Supreme Court is reproduced below:-
“Mr.Muhammad
Ashraf Kazi Senior Advocate Supreme Court, submits
that the petitioner is ready and willing to deposit with the trial Court the
entire amount of his liability so far determined by the prosecution.
Syed
Amjad Ali Shah learned DPG NAB present in Court
waives the notice and submits that in view of the case of Shamraiz
Khan v The State (2000 SCMR 157) he would have no objection for the grant of a
bail to the petitioner subject to his depositing the entire amount of his
liability in this case being Rs.61,79,238/- (Rupees Sixty One Lac, Seventy Nine
Thousand, Two Hundred and Thirty Eight)
with the Additional Registrar of
this Court at Brach Registry Karachi.
In
these circumstances, this petition is converted into an appeal and allowed, the
petitioner is admitted to bail subject to his depositing with the Additional
Registrar of this Court the above amount”.
10. Two
unreported judgments relied upon by learned counsel for the petitioners, are
subsequent in time and passed by three members bench
of Honourable Supreme Court whereas the reliance
placed by learned counsel for NAB on the case reported in 2017 SCMR 1152 was earlier in time and the judgment is delivered by
two member bench.
11. In view of the above discussion, the interim
pre-arrest bail already granted to petitioners Muhammad Saleem
Sahto and Mst.Nazia Akram is hereby confirmed subject to depositing entire
amount of Rs.73,76,482/-(Rupees
Seventy Three Lac, Seventy Six Thousand & Four Hundred Eighty Two) and Rs,7,79,482/- (Rupees Seven Lac,
Seventy Nine Thousand and Four Hundred Eighty Two) respectively within a period of 15 days and
P.R Bonds in the like amount to the satisfaction of learned Trial Court.
Failure whereof, the interim pre-arrest bail granted to the aforementioned
petitioners shall stand recalled on expiry of 15 days from today and the
petitioners will be taken into custody and remanded to jail till deposit of the
liability amount. Similarly, petitioners Ahmed Khan Solangi
and Muhammad Ali Panhwar are admitted to post arrest
bail subject to depositing amount of Rs.45,97,524/- (Rupees Fourty Five
Lac, Ninety Seven Thousand and Five Hundred Twenty Four) and Rs.5,33,93,871/-(Rupees Five Crore, Thirty Three Lac, Ninety Three Thousand and Eight
Hundred Seventy One) respectively mentioned against them as per the statement
filed by the I.O in Court today.
12. The observations made hereinabove are
tentative in nature and will not influence the learned trial Court while
deciding the reference on merits.
13. The aforementioned petitions are disposed of
in above terms.
JUDGE
JUDGE
Akber.