HIGH COURT
OF SINDH AT KARACHI
Constitution Petition No.D-2382 of 2016
Present:
Naimatullah Phulpoto, J.
Mohammad Karim
Khan Agha, J.
Petitioner: Syed Sohail
Hassan through Mr. Muhammad Anwar Tariq, Advocate
Respondent: Director General, National
Accountability Bureau & 2 others through Mr. Noor Muhammad Dayo, Special Prosecutor, NAB
Amicus
Curiae: Mr. A. Q. Halepota, Advocate
Date of Hearing: 28.11.2016
Date of Announcement: 16.12.2016
O R D E R
Naimatullah Phulpoto, J: Petitioner Syed Sohail Hassan is facing trial in the Accountability Court No.I at Karachi in Reference No.20/2011 filed by the Chairman, National Accountability Bureau Petitioner filed an application under section 91, Cr.PC seeking his release before the trial Court, the same was dismissed vide order dated 23.04.2016. Thereafter, the petitioner filed this constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for same relief.
2. Brief facts leading to the filing of instant petition are that the petitioner was arrested by the NAB in inquiry initiated by the NAB on the complaint of Pakistan International Airlines Corporation (PIAC) against M/s. Cargo Aids Private Limited and its partners. Petitioner filed Constitution Petition No.D-316/2011, the same was dismissed vide order dated 07.02.2011. Thereafter, another Constitution Petition No.D-1247/2011 was filed on behalf of the petitioner Syed Sohail Hassan. It was disposed of vide order dated 10.05.2011 while observing that, “Be that as it may, since neither has any authorization for initiating investigation been submitted nor has any approval been obtained for referring the matter to the Accountability Court and petitioner has remained under illegal confinement at-least since 24.04.2011. We would direct his immediate release, however, in order to ensure that the petitioner remains available in respect of the proceedings, we would direct a Personal Bond may be obtained from the petitioner before his release. NAB authorities may, however, proceed with the matter strictly in accordance with law.” Reference No.20/2011 was filed against the petitioner and others on 24.11.2011 before the Accountability Court, Karachi. After filing of Reference, petitioner Syed Sohail Hassan and others filed C.Ps. Nos.D-3682/2011 and D-2176/2012 before this Court for seeking pre-arrest bail, same was refused to petitioner vide orders dated 03.04.2013.
3. Petitioner Syed Sohail Hassan filed Review Application (CMA No.7042/2013), seeking review of order dated 03.04.2013. Review application was dismissed by this Court vide order dated 10.04.2013. Thereafter, petitioner approached the Honourable Supreme Court for seeking pre-arrest bail. It appears that Civil Petition No.160-K/2013 was dismissed by the Honourable Supreme Court vide order dated 22.04.2013.
4. Notices of this petition were issued to the respondents as well as Special Prosecutor NAB. Petition came up for hearing before this Court on 17.08.2016 Mr. A. Q. Halepota, senior advocate of this Court, was appointed as Amicus Curiae to assist the Court in answering the following question:
Whether the Accountability Court is empowered under section 91, Cr.PC to release the petitioner against whom Reference is pending under the provisions of the National Accountability Ordinance, 1999?
5. Mr. A. Q. Halepota argued that petitioner is in custody, he cannot be released under section 91, Cr.PC. He has further argued that Section 91, Cr.PC cannot be applied in isolation, but it is to be applied and read with sections 496 and 497 Cr.PC for the purpose of release of an accused person. He has further argued that NAB is the special law, petitioner ought to have filed constitution petition for his post-arrest bail.
6. Mr. Muhammad Anwar Tariq, learned counsel for the petitioner, mainly contended that after dismissal of bail before arrest application of the petitioner by the Honourable Supreme Court he was regularly attending the trial Court and trial Court remanded the petitioner/accused to jail without any lawful authority. He further contended that petitioner is entitled to be released under section 91, Cr.PC on bail by the NAB Court on execution of personal bond. He further argued that petitioner was released during inquiry and his subsequent arrest was unlawful. In support of his contentions, he relied upon the following cases:
1. 2014 SCMR 1762 (Sarwar Ahmed & others vs. State & others)
2. 2015 SCMR 56 (Rehamdad vs. Syed Mazhar Hussah Shah & others)
3. 2010 SCMR 611 (Luqman Ali versus Hazaro and another)
4. 2005 PCr.LJ 505 [Karachi] Noor Bibi and 3 others vs. The State
5. 2015 SCMR 56 (Reham Dad vs. Syed Mazhar Hussain Shah and others)
6. PLD 2007 Karachi 139 (Saleem Raza and 31 others versus The State)
7. PLD 2003 Peshawar 94 (Khalid Aziz versus The State)
8. Order dated 05.11.2015, passed by Peshawar High Court, Peshawar passed in Writ Petition No.3506-P/2016
9. Order dated 25.02.2016, passed by Peshawar High Court, Peshawar passed in Writ Petition No.598-P/2016
7. Mr. Dayo, learned Special Prosecutor NAB, argued that prayer of petitioner for pre-arrest bail has been refused upto Honourable Supreme Court of Pakistan. He further argued that petitioner did not surrender before the trial Court, for facing reference and he was taken into custody. Learned prosecutor NAB argued that provisions of section 91, Cr.PC are not applicable in the circumstances of the case. Lastly, argued that NAB Court has no jurisdiction to grant bail/release the accused under the National Accountability Ordinance, 1999. Learned Special Prosecutor NAB strongly opposed the petition.
8. Record reflects that petitioner had filed C.P. No.D-3682/2011 for pre-arrest bail, the same was dismissed vide orders dated 17.03.2013. Thereafter, CMA No.7042/2013 was filed on behalf of the petitioner/accused Syed Sohail Hassan for review of the order dated 17.03.2013, the same was also dismissed vide order dated 10.04.2013. Thereafter, petitioner filed Civil Petition No.160-K/2013 before the Honourable Supreme Court of Pakistan for same relief/bail before arrest. Petition was dismissed and leave was refused vide orders dated 22.04.2013 as follows:
“3. We have considered the submission of the learned counsel and have gone through the record. The order dated 10.05.2011 referred to above was passed by a learned Division Bench of the High Court whereby the petitioner was directed to be released from custody was with consent of the learned Deputy Prosecutor General, NAB, on the ground that the permission for filing Reference before the Accountability Court could not be obtained because the office of the Chairman NAB is lying vacant. It appears that subsequently the office of Chairman NAB was filled in and on 24.11.2011 a Reference was filed pursuant to which the petitioner was sought to be arrested being one of the accused in the said Reference. In the impugned order, the learned Division Bench has observed as follows:-
“9. From perusal of Reference No.20/2011 prima facie, it appears that documentary evidence has been collected against the petition/accused Syed Sohail Hassan showing that he was not depositing the amount duly collected by him and apparently he has committed willful default as defined in section 5(r) of National Accountability Ordinance, 1999. It is admitted fact that 04 cheques were issued and same were dishonoured and loss was caused to PIAC to the tune of Rs.127.845 Million. No mala fide has been attributed against prosecution. Prima facie, an offence of corruption and corrupt practices as envisaged under Section 9(a) of the National Accountability Ordinance, 1999 is made out. It may be mentioned here that learned Accountability Court No.1 after receipt of Reference No.20/2011 has framed charge against the petitioners/accused Syed Sohail Hassan, Aftab Ahmed and Muhammad Ibrahim Noor and evidence of 4 prosecution witnesses has been recorded. The contentions of the learned counsel for the petitioner/accused Syed Sohail Hassan that he has been falsely involved in this case and willful default has not been adjudicated by competent Court can only be determined by the trial Court where case has proceeded as no elaborate sifting of evidence can be made at the time of deciding the bail application because appreciation of evidence is primary function of trial Court but only tentative assessment of the same is to be made by this Court. Rightly reliance has been placed upon the case Mrs. Riaz Qayyum v. The State (2004 SCMR 1889), which is reproduced as under:-
It is settled principle of law that an elaborate sifting of evidence cannot be made at the time of deciding bail application but only tentative assessment of the same is to be made. Thus, prima facie there appears to be a reasonable ground disentitling the petitioner’s husband, namely, Khalifa Abdul Qayyum, to the concession of bail.
10. Thus, prima facie there appears to be reasonable grounds to connect the petitioners Syed Sohail Hassan in this case, hence, he is not entitled to grant of pre-arrest bail. Consequently, interim pre-arrest bail already granted to him is hereby recalled, with direction to surrender before trial Court.
4. We find that in the face of above observation made by the learned Division Bench of the High Court of Sindh, there is hardly any justification for the petitioner to seek pre-arrest bail more so when the well-established principles for grant of pre-arrest bail were neither alleged nor argued before us. On giving due consideration to the submission of the learned counsel for the petitioner and record of the case made available before us, we are satisfied that the impugned order does not call for any interference. Consequently, the petition is dismissed and leave refused.”
9. It is the matter of record that after dismissal of Civil Petition No.160-K/2013 by Honourable Supreme Court, the petitioner was remanded to jail by Accountability Court No.I, Karachi.
10. During the course of arguments, Mr.
Muhammad Anwar Tariq, learned counsel for the petitioner pointed out that the
petitioner/accused had moved an application for his release under section 91,
Cr.PC before the learned Accountability Court No.I,
Sindh at Karachi, the same was heard and dismissed vide order dated 23.04.2016,
mainly for the following reasons:-
“I have heard the learned counsel and
the learned senior prosecutor appearing on behalf of the NAB and also perused
the record.
Before making any discussion over the
arguments as advanced by the learned defence counsel as well as the learned
prosecutor I would like to reproduce the provisions of Section 91 Cr.PC which
reads as under:
91. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in
any Court is empowered to issue a summon or warrant,
is present in such Court, such officer may require such person to execute a
bond, with or without sureties, for his appearance in such Court.
The bare reading of this section as
reproduced above reveals that when a person is present, in response to summons
or warrants, before Presiding Officer of any Court who is empowered to issue
summons or warrants then such officer may direct the said person to execute a
bond with or without sureties for his appearance in such Court. Therefore, it
appears that the provisions of Section 91, Cr.PC are applicable only to a
person who is present in Court and is free and not to a person who is already
under arrest and in custody. This is not only my point of view but the
Honourable High Court of Lahore has also decided such issue while deciding the
case of Muhammad Ijaz, reported in PLD 2006 (Lah) at Page-227. The Hon’ble
High Court has held as under:-
“C”- Criminal
Procedure Code (V of 1898).
---S.91---Power to
take bond for appearance--- Purpose and scope---purpose of S.91, Cr.PC is to ensure or demand presence of the accused who is
directed by the Court to execute the bond---Provisions of S.91, Cr.PC are applicable to a person who is present in Court
and is free, and not to a person who is already under arrest and in custody.
[p.233]C”.
Since the accused in the present case
was taken into custody and remanded to jail on 19.03.2016 and the learned
counsel filed an instant application under u/s 91 Cr.PC on 26.03.2016 when the
accused was already remanded to custody as such as per view taken by the Hon’ble Lahore High Court in Muhammad Ijaz’s
case, reproduced above, the provisions of Section 91 Cr.PC are not applicable
to be pressed into by the learned counsel for the release of accused as he was
in custody when the present application was filed on his behalf.
I am also guided by one another case
law in this behalf which is reported in PCr.LJ 2005 (Lah.) at Page.1706 wherein the Hon’ble
High Court was pleased to hold as under:-
“Ss. 496, 497(5),
498, 561-A & 91 --- Cancellation of bail --- Application for – Accused, who
was granted pre-arrest bail, having absented himself on relevant date, his
pre-arrest was withdrawn by trial Court and non-bailable
warrants of his arrest were issued for specified date—On said date trial Court
observed that an Advocate had produced accused and accused was taken into
custody – Trial Court had further observed that as accused had himself put up
his appearance, accused was directed to submit surety bonds as required under
S. 91, Cr.PC – validity – Provisions of S. 91, Cr.PC were to be read in
conjunction with provisions of Ss. 496 and 497, Cr.PC and despite fact that
accused had put in appearance before trial Court, provisions of Ss. 496 &
497, Cr.PC had not been rendered ineffective – Trial Court had acted without
lawful authority in assuming that accused was entitled to automatic admission
to bail – No power was vesting in trial Court to release accused after taking
him into custody without passing an order in terms of S. 497, Cr.PC – High
Court treated criminal miscellaneous as an application under S. 561-A, Cr.PC
and allowing same, set aside impugned order of trial Court. [p.1709]A.
It is needless to say that offences
punishable under the N.A. Ordinance, 1999 are non-bailable
as per Section 9(b) of the said Ordinance which provides that all offences
under this Ordinance shall be non-bailable and
notwithstanding anything contained in Sections 426, 491, 497, 498 and 561-A,
Cr.PC or any other provisions of the code or any other law for the time being
in force no Court shall have jurisdiction to grant bail to any person accused
of any offence under this Ordinance. The plain reading of Section 9(b) of N.A.
Ordinance 1999 reveals that not only the provisions of Sections 426, 491, 497,
498 and 561-A Cr.PC are excluded from purview of National Accountability
Courts, but the Courts established under the National Accountability Ordinance,
1999 also cannot invoke any other provisions of Cr.PC or any other law for time
being in force for the purpose of bail or taking bond/surety from the accused
who has not been granted bail by the Court of competent jurisdiction.
Thus in view of the above facts and
circumstances I have come to the conclusion that as offences alleged against
applicant/accused are non-bailable in nature and
therefore, this Court cannot direct the accused to execute the bond or furnish
surety for his appearance in Court specifically for the following reasons:
1) The accused is in custody and whereas the provisions of section 91 Cr.PC
can be pressed into as and when the accused is free and before the Court and
not in custody.
2) The provisions of Sections 426, 491, 497, 498 and 561-A, Cr.PC are
excluded from the purview of National Accountability Court, thereby the Courts
established under the National Accountability Ordinance, 1999 cannot invoke any
other provisions
of Cr.PC or any other law for the time being in force for the purpose of bail
or a taking bond/surety from accused who has not been granted bail by the Court
of competent jurisdiction.
The upshot of above discussion is that
the instant application as filed under Section 91, Cr.PC in view of the facts
and circumstances as discussed above appears to be meritless and the same
stands dismissed accordingly.”
11. The contention of Mr. Anwar Tariq, counsel for the petitioner that the petitioner/accused is entitled for release under section 91, Cr.PC on execution of P.R. bond, is without any legal force for the reasons that this Court in C.P. No.D-3682/2011 vide order dated 03.04.2013 held that petitioner/accused was not entitled for pre-arrest bail, prima facie there was sufficient material to connect him to the commission of offence. Honourable Supreme Court has been pleased to dismiss his Civil Petition No.160-K/2013 vide orders dated 22.04.2013 while observing that there is hardly any justification for the petitioner to seek pre-arrest bail. Learned Amicus Curiae has also argued that section 91, Cr.PC is not applicable as the petitioner/accused is in custody in NAB case. Mr. Halepota submitted that proper course for the petitioner was to file the constitution petition for post-arrest bail.
12. We have carefully heard the learned counsel for the parties and perused the relevant record.
13. In order to appreciate the contention of learned counsel for the petitioner, section 91, Cr.PC is reproduced as under:-
91. Power to take bond for appearance: When any person
for whose appearance or arrest the officer presiding in any Court is empowered
to issue a summons or warrant, is present in such Court, such officer may
require such person to execute a bond, with or without sureties, for his
appearance in such Court.
14. The Honourable Supreme Court of Pakistan in
the case of Sarwar and others versus the State and
others (2014 SCMR 1762) has observed as follows:
30. As a result of the discussion made above we hold that the
law propounded by the Lahore High Court, Lahore in the case of Mazhar Hussain Shah v. The State
(1986 PCr.LJ 2359) and by this Court in the cases of Reham Dad v. Syed Mazhar Hussain Shah and others (Criminal Appeal No. 56 of 1986
decided on 14-1-1987) and Syed Muhammad Firdaus and
others v. The State (2005 SCMR 784) was a correct enunciation of the law vis-a-vis the provisions of
sections 204 and 91, Cr.P.C. and it is concluded with great respect and
veneration that the law declared by the High Court of Sindh, Karachi in the
case of Noor Nabi and 3 others v. The State (2005 PCr.LJ 505) and by this Court in the case of Luqman Ali v. Hazaro and another
(2010 SCMR 611) in respect of the said legal provisions was not correct. As
held in the cases of Mazhar Hussain
Shah, Reham Dad and Syed Muhammad Firdaus
(supra) the correct legal position is as follows:--
(i) A
process is issued to an accused person under section 204, Cr.P.C. when the
court taking cognizance of the offence is of the "opinion" that there
is "sufficient ground" for "proceeding" against the accused
person and an opinion of a court about availability of sufficient ground for
proceeding against an accused person cannot be equated with appearance of
"reasonable grounds" to the court for "believing" that he
"has been guilty" of an offence within the contemplation of
subsection (1) of section 497, Cr.P.C. Due to these differences in the words
used in section 204 and section 497, Cr.P.C. the intent of the legislature
becomes apparent that the provisions of section 91, Cr.P.C. and section 497,
Cr.P.C. are meant to cater for different situations.
(ii) If the court issuing process against an accused person decides
to issue summons for appearance of the accused person before it then the
intention of the court is not to put the accused person under any restraint at
that stage and if the accused person appears before the court in response to
the summons issued for his appearance then the court may require him to execute
a bond, with or without sureties, so as to ensure his future appearance before
the court as and when required.
(iii) If in response to the summons issued for his appearance the
accused person appears before the court but fails to submit the requisite bond
for his future appearance to the satisfaction of the court or to provide the
required sureties then the accused person may be committed by the court to
custody till he submits the requisite bond or provides the required sureties.
We may add that
(iv) If the process issued by a court against an accused person under
section 204, Cr.P.C. is through a warrant, bailable
or non-bailable, then the accused person may be under
some kind or form of restraint and, therefore, he may apply for his pre-arrest
bail if he so chooses which may or may not be granted by the court depending
upon the circumstances of the case but even in such a case upon appearance of
the accused person before the court he may, in the discretion of the court, be
required by the court to execute a bond for his future appearance, with or
without sureties, obviating the requirement of bail.
15. It appears that under section 91, Cr.PC the
Court may require any person present in Court (i) for whose appearance it can
issue a summon, or (ii) for whose arrest it can issue a warrant to execute a
bond for his appearance before the Court or before any other Court to which the
case may be transferred for trial. Section 91, Cr.PC cannot be applied in
isolation but it is to be applied and read with sections 496 and 497, Cr.PC for
the purpose of release of an accused person. Section 91, Cr.PC cannot be
applied where a person is in custody.
16. The National Accountability Ordinance,
1999, is a special law and accused Syed Sohail Hassan
is being tried under the Ordinance, 1999, which specifically bars grant of bail
to an accused normally by virtue of its sections 3 and 9(b). Honourable Supreme
Court in a recent unreported judgment in Civil Petition No.1542/2016 (Chairman
NAB, Islamabad vs. Bakhat Zameen
& another) dated 26.08.2016 has held as under:-
“5. Reverting to the facts of the present case,
we have noticed that the observations of the learned Division Bench that
respondent No.1 has been attributed only six adjournments during the ten months
period of trial before the Accountability Court, is result of patent misreading
of record, inasmuch as from the perusal of Court diaries of the Accountability
Court, which have been placed on record on behalf of the petitioner, through
CMA No.4807/2016, it is evident that after framing of charge on 04.02.2015,
from 06.02.2015, respondent No.1 has been instrumental in seeking adjournments
on 16.12.2015, 25.02.2015, 06.04.2015, 20.06.2015, 13.07.2015, 28.08.2015,
09.09.2015, 22.09.2015, 20.10.2015, 29.10.2015, 06.11.2015, 19.11.2015,
01.12.2015, 12.12.2015, 02.01.2016, 27.01.2016, 18.02.2016 and 29.02.2016 (i.e.
eighteen dates of hearing). Not only this, but even after grant of bail through
the impugned order, he continued with such practice by seeking adjournments on
15.03.2016, 30.03.2016, 18.05.2016 and 02.06.2016, while order sheets of
subsequent dates are not available before us. It will not be out of context to
mention here that even otherwise the practice of making mathematical
calculations, for ascertaining the actual period of delay attributable to the
prosecution or the accused for the purpose of computing the period of statutory
delay has not been approved by this Court, as even delay on few dates of
hearing at the instance of an accused can be fatal for this purpose,
irrespective of the actual time wasted on that account. More particularly in
the cases where accused is being tried under the Ordinance of 1999, which is a
special law and specifically bars grant of bail to an accused by virtue of its
sections 3 and 9(b), which respectively read as under:-
Section 3: “The provisions
of this Ordinance shall have effect notwithstanding anything contained in any
other law for the time being in force.”
Section 9(b): “All
offences under this Ordinance shall be non-bailable
and, notwithstanding anything contained in section 3[426, 491,] 497,498 and
561-A or any other provision of the Code, or any other law for the time being
in force no Court shall have jurisdiction to grant bail to any person accused
of any offence under this Ordinance.”
17. In our considered view, plea of
petitioner/accused Syed Sohail Hassan for his release
under section 91, Cr.PC is devoid of legal force for the reason that prima
facie there appear to be reasonable grounds to connect the petitioner in this
case. Plea of pre-arrest bail for accused has been rejected by this Court twice
and by Honourable Supreme Court. In the meantime, there is no development.
Reference is pending against the petitioner/accused. Authorities relied upon by
the learned counsel for the petitioner are quite
distinguishable from the facts and circumstances of the present case.
18. For the above
stated facts and reasons, instant constitution petition is not only
misconceived but also not maintainable in law. It is accordingly dismissed.
However, trial Court is directed to decide the case expeditiously.
19. Before parting with this order, we would
like to place on record our deep appreciation to Mr. A. Q. Halepota,
learned amicus curiae for his able assistance during the course of hearing of
this petition.
J U D G E
J
U D G E
Gulsher/PS