IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Constitution Petition No. D – 2392 of 2017
Present;
Mr. Justice Zafar Ahmed Rajput
Mr. Justice Amjad Ali Sahito
Petitioner : Rameez Thaheem S/o Fateh Khan,
Through Mr.Muhammad Sadiq,
Advocate
Respondent
: The
Chairman National Accountability
Bureau, through Mr.
Mujeeb-ur-Rehman Soomro, Special Prosecutor for NAB, Sukkur
Mr. Ali Raza Pathan,
Assistant Attorney General
Date of
hearing : 07.09.2021
Date of
order : 07.09.2021
O R D E R
AMJAD ALI SAHITO, J.- Through instant Constitution Petition, the
petitioner named above seeks post-arrest bail in NAB Reference No.01/2017 (re- The State vs. Abdul Hameed Pathan and
others), pending trial before the Accountability Court, Sukkur.
2. At the very outset, learned counsel for the petitioner/accused
submits that he is in jail since 09.11.2017 and out of 36 only seven
prosecution witnesses have been examined by the trial Court. He further submits
that the petitioner is in jail for the last 03 years and 09 months, hence he is
entitled to a grant of bail on the ground of hardship.
3. On the other hand, learned Special Prosecutor for NAB vehemently
opposed for grant of bail to the petitioner/accused. He has placed reliance
upon the case of Talat Ishaque vs. NAB
and others (PLD 2019 SC 112).
4. We have heard the learned counsel for the petitioner/accused,
learned Special Prosecutor for NAB and also gone through the material available
on record. It is not disputed that the petitioner/accused was arrested on 09.11.2017,
thus he is in jail for about 03 years and 09 months. Now the question before us
is that whether the delay has been caused by the petitioner/accused or anyone
acting on his behalf, as such the progress report was called from learned trial
Court. The progress report dated 06.09.2021 furnished by the learned trial
Court indicates that the interim Reference in the subject case was filed on
29.06.2017 against 13 accused persons including the petitioner/accused,
whereas, the charge was framed against the accused on 05.12.2017 and after framing
of charge 06 prosecution examined were examined. Thereafter the supplementary
References were filed by the NAB before the trial Court on 05.10.2018 and
17.10.2018, respectively, the copies of the supplementary References were
supplied only to four accused persons, who were added in supplementary
References and amended charge was framed against the accused persons on
02.02.2019, whereas, on the verbal request of the accused to whom copies of
supplementary References were not supplied, necessary copies were supplied to
them on 21.03.2019 and 06.04.2019, respectively. Again the amended charge was
framed on 02.05.2019 against the accused persons by the learned trial Court.
The report further indicates that up till now only 07 prosecution witnesses
have been examined, whereas, the evidence of two prosecution witnesses has been
given up by the prosecution out of 36 prosecution witnesses and now the matter
is fixed on 10.09.2021 for recording the evidence of remaining prosecution
witnesses.
5. Learned counsel for the petitioner/accused through his statement
placed on record the Order sheet in Reference No.01/2017 which shows that on
most of the dates witnesses were called absent on one or the other pretext the
matter is being adjourned before the trial Court. The Hon’ble Supreme Court in
the case of Tallat Ishaque (supra) has
held in para-23(f) that “ordinarily bail is allowed to an accused
person on the ground of delay only where the delay in trial or the period of
custody of the accused person is shocking, unconscionable or inordinate and not
otherwise.” In another case of
Himesh
Khan v. The National Accountability Bureau (NAB) Lahore (2015 SCMR 1092)
the Hon’ble Supreme Court of Pakistan has held that;-
“14. The grant of bail on
account of inordinate delay in prosecution was discussed and guiding principle
was laid down by this Court in the case of Riasat Ali v. Ghulam Muhammad and
the State (PLD 1968 SC 353,) which is to the following effect:-
“Criminal Procedure Code, S.497--- Grant of bail in non-bailable
offences:-
Delay in prosecution of accused amounts to abuse of process of law
and is a valid ground for bailing out accused however, delay in prosecution of
each case as a ground for bail is to be weighed and judged, in each case on its
merits.”
There is also a long chain of authorities and dicta of this Court
where bail has been granted on account of shocking delay in the conclusion of
trial in cases falling under the NAB laws. Reference in this regard may be made
to the case of Anwar Saifullah Khan v. The State (2001 SCMR 1040) where it was
held that bail cannot be withheld as a punishable on the ground that the
offences, the accused is charged for, are not bailable or grant of bail therein
was falling within the prohibition.”
6. We are of the considered view that in the period of 03 years and
09 months only 07 prosecution witnesses have been examined out of 36 witnesses
by the learned trial Court, for the rest of the witnesses the trial is most
likely to take a sufficient period to conclude the case. In our view Article 10
(A) of the Constitution, which includes the right to an expeditious trial
should be meaningful and should be fully applied in order to protect an under
trial prisoner from prolonged periods of incarceration during his trial due to
no fault of his own.
7. In view of the above, the prosecution has failed to conclude the
trial within 04 years, such delay is shocking and unconscionable. The
petitioner/accused Rameez Thaheem has made-out a case for a grant of bail on
the ground of hardship. Accordingly, the instant petition is allowed. The
petitioner/accused is admitted to bail subject to furnishing solvent surety in
the sum of Rs.500,000.00 (Five lac)
and PR bond in the like amount to the satisfaction of the learned trial court. The
learned trial Court is directed to expedite the trial and conclude the same as
early as possible. In case the petitioner/accused misused the concession of
bail, the trial Court shall take action against him in accordance with law.
Judge
Judge
A.R. BROHI