IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitutional Petition No. D-149 of 2022

Present;

Mr. Justice Muhammad Faisal Kamal Alam,

Mr. Justice Amjad Ali Sahito,,JJ.

Petitioner : Mir GhulamAbbassJakhrani son of

Late Bashir Ahmed Jakhrani,

Through Mr. Muneer Ahmed Malik& Mr. MohsinShahwaniAdvocates

Respondent : The Chairman National Accountability

Bureau, through M/sBahawal-u-Din Shaikh Special Prosecutor for NAB, Sukkur and Mumtaz Ali Gopang, Assistant Attorney General.

Date of hearing : 02.03.2022

Date of Order : 09.03.2022

O R D E R

AMJAD ALI SAHITO, J.- Through instant Constitutional Petition, thepetitioner named above seeks post-arrest bail in NAB Reference No.02/2020 (re- The State vs. AijazHussainJakhrani and others), pending trial before the Accountability Court, Sukkur.

2. At the very outset, learned counsel for the petitioner/accused submits that petitioner/accused is innocent he has got no connection with the alleged offences. The petitionerMir GhulamAbbassJakhraniis a businessman engaged in the business of retailing petroleum products currently owns and runs three petrol pumps built on his ancestral land inherited by him. He belongs to a renowned land-owning agricultural/business family of Sindh hada hundred acres of agricultural property in Sindh.The petitioner has been involved in the allegations that he along with co-accused Abdul Razak, LubnaFarhadMazghani and Zaheer Sardar are benamidars, abettors, facilitators and associates of accused No.1AijazHussainJakhrani and present petitioner along with three others are also involved in disguising the true nature of transactions and laundering proceeds of crime in payments of sale and purchase of 12 moveable and immoveable properties. There is no direct or indirect evidence against the petitioner to connect him with the alleged offence; that the allegations of benami properties are without any proof, therefore, are yet to be proved at trial after recording of evidence. The petitioner is behind the bars forthe last 29/30 months and there is no progress in the trial hence he is entitled to grant of bail on merit as well as on the ground of inordinate and unconscionable delay.

3. On the other hand, learned Special Prosecutors for NAB as well as Assistant Attorney General vehemently opposed for grant of bail to the petitioner/accused.

4. We have heard the learned counsel for thepetitioner/accused, learned Special Prosecutors for NAB, Assistant Attorney General and also gone through the material available on record.

5. It is alleged by the NAB in Reference No.02 of 2020 that the petitioner has been involved on the allegations that he along with co-accused Abdul Razak, LubnaFarhadMazghani and Zaheer Sardar are benamidars, abettors, facilitators and associates of accused No.1 AijazHussainJakhrani and present petitioner along with three others are also involved in disguising the true nature of transactions and laundering proceeds of crime in payments of sale and purchase of 12 moveable and immoveable properties. Reference No.02 of 2020 annexed with this constitutional petition reveals benami property in the name of present petitioner along with co-accused were in possession of AijazJakhrani. The petitioner was shown to be benamidar of AijazHussainJakhrani in ownership of four properties shown at page No.26 of Interim Reference which remained in possession of AijazHussainJakhrani.The petitioner has also transferreda huge amount of Rs. 20,055,000./ in the account of main accusedAijazHussainJakhrani. Based on these allegations he/petitioner was booked in this Reference.

6. It is not disputed that the petitioner/accused was arrested and he is in jail for about 29 months. Now the question before us is that whether the delay has been caused by the petitioner/accused or anyone acting on his behalf. Admittedly the Interim Reference in the subject case was filed on 14.01.2020 against 05 accused persons including the petitioner/accused, whereas, the charge was framed against the accused on 06.11.2020 and after framing of charge out of 49 witnesses,07 prosecution witnesses were examined. From the record and proceedings it reveals that 39 times the case was proceeded before the trial Court, out of which 12 adjournments were sought by the prosecution, 07 adjournments were sought by co-accused and progress was made in the trial of the case but only two adjournments were sought by the present petitioner/accused only to the extent of reserving cross-examination while on three dates the Court work was suspended or the holidays were declared by the Government. Petitioner/accused GhulamAbbassJakhraniwas shown to have been arrested on 20.09.2019 and he is in custody without any progress in the matter. Such a long delay does constitute “inordinate and unconscionable delay” as held in TalatIshaq v. NAB (PLD 2019 SC 112). The Hon’ble Supreme Court in the case of TallatIshaquesupra) 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/ GhulamMuhammad 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.”

Reliance is also placed on the case of Muhammad JawadHanif Khan and another v. National accountability Bureau Sindh and others (2020 SCMR 185), Muhammad Iqbal Khan Noori and another vs. National Accountability Bureau (NAB) and others (PLD 2021 Supreme Court 916), Shakeel Shah vs. The State and others (2022 SCMR 1) and the unreported case of Hon’ble Supreme Court in Crl. P.No.1016-L/2021 (Nadeem Samson vs. The State etc).

7. As far the transactions of the amount credited and debited in the bank accounts of the petitioner and accused No.1AijazHussainJakhrani, the petitioner has taken the stance that all the said accounts are disclosed and accounted for in the Annual Income Tax Returns and declarations of assetsand the NAB has not pointed out any material available on record to rebut the stance of the petitioner. Further, the petitioner has taken the plea that the main accused AijazHussainJakhrani is his first cousin and he remained Chairman of Municipal Committee Jacobabad. He is a businessman engaged in the business of retailing petroleum products currently owns and runs three petrol pumps built on his ancestral land inherited by him. He belongs to a renowned land-owning agricultural/business family of Sindh hada hundred acres of agricultural property in Sindh.We have also tentatively scannedthe material available on the record of the case, in the interest of justice, to satisfy ourselves whether there is incriminating material available on record which provides reasonable grounds for believing that the petitioner is guilty of the alleged offence. Having done so we find that there is no tangible, sufficient, incriminating material available on record against the petitioner Mir GhulamAbbassJakhrani for the commission of the offence alleged against him. Reliance is placed on the order dated 21.10.2021 inCivil Petition No.4387of 2021 Re: Syed Khursheed Ahmed Shah vs. The Statepassed by Hon’ble Supreme Court of Pakistan.

8. It must be remembered that in criminal law, everybody is liable only for his own acts and omissions, not of others. Even otherwise, in a case where the NAB has been unable to show sufficient incriminating material to the Court to justify the detention of the accused, depriving the accused of his liberty and freedom even for a single day is, to say the least, unconscionable and below human dignity. We are of the considered view that in the period of 2 and half years only 07 prosecution witnesses have been examined out of 49 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 to protect an under trial prisoner from prolonged periods of incarceration during his trial due to no fault of his own.

9. In view of the above,and by taking the guideline from the cases cited at suprathe learned counsel for the petitioner has succeeded to make out the case of the petitioner for grant of bail on the ground of “inordinate and unconscionable delay” so also in view of subsection (2) of section 497 Cr.P.C,Accordingly, the instant Constitutional 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 followingthe law.

10. Needless to state that any observation in the foregoing paragraphs is of tentative nature and shall not influence the learned Trial Court while handing down the Judgment.

Judge

Irfan/PA

the petitioner is engaged in the business of retailing petroleum products currently owns and runs three petrol pumps built on his ancestral land inherited by him. It is stated in the constitional petition that he belongs to a renowned land-owning agricultural/business family of Sindh having hundred acres of agricultural property in Sindh.