Muhammad Yousif & another (Petitioner) VS FED Of Pakistan & other (Respondent)

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IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD

Before:

Mr. Justice Abdul Maalik Gaddi Mr. Justice Mohammad Karim Khan Agha C.P. No.D-1260 of 2018

Syed Shoaib Hassan

Versus

Federation of Pakistan and others

C.P. No.D-2244 of 2018.

lrshad Yousuf

Versus

National Accountability Btrreau (NAB)

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C.P. No.D-2656 of 2018.

Salman Ali

Versus

Federation of Pakistan and another

C.P. No.D-2657 of 201B.

Muhammad Yousif and another

Versus

Federation of Pakistan and others

Petitioner : Syed Shoaib Through Barrisler Khawaja Naveed Hassan in C.P. No.D- Ahmed, Advocate 1260tzo',t8 I Petitioners : lrshad Yousuf Through Mr. lshrat Ali Lohar Advocate in C.P. No.D-224412018 and petitioners Muhammad Yousif and Arif Yousif in C.P. No.D-265712018 Petitioner : Salman Ali in Through Mr. Arshad H. Lodhi, Advocate C.P. No.D-2656/2018

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Respondent Federation Through Mr. Fazal Hussain Jamali, of Pakistan Assistant Attorney General of Pakistan

Respondents : National Through Mr. Jangu Khan, Special Accountability Bureau and Prosecutor NAB.

others Date of hearing 25.09.2018

Date of order 27.09.2018

ORDER

MOHAMMAD KARIM KHAN AGHA J.- By this single order, we intend to dispose of all the above captioned petitions, whereby the petitioners named above have sought post-arrest bail in Reference No.11/2017, pending in the Accountability Court No.Vl, Sindh al Hyderabad.

2.The brief facts of the case are that on a source report against petition8r Muhammad Yousuf, EX-Head, Constable in Police Department, that he had accumuiated huge assets through illegal means; an inquiry was authorized by the D.G. NAB Karachi, which was subsequently converted into the investigation. ln execution of warrants of arrest issued by D.G. NAB petitioner Muhamrnad Yousuf and his son namely Arif Yousuf were arrested from outside of their office in l-lyderabad on 25.02.2017. On the disclosure of the said petitioners, property documents, cash, etc were recovered from their office in presence of witnesses and such memos were prepared. Further on the pointation of Muhammad Yousuf following cash, documents and artiples were recovered from his houses No.224 and 225, in Tando Mir Ghulam Hussain, Unit No.9 Latifabad, Hyderabad (1) Cash PKR 3.89 million, UAE Dirhams 3405, Saud Riyals 745, lranian Riyal 20 million, (2) Pay orders: 3 x pay orders of Rs.12.6 million in favour of Chairman NAB alongyyith VR affidavit (3) Gold: 39.4 tola + lmitation jewelry, (4) Rado Wrist Watch, (5) Five Cars including Prado, Vrtz, Wagon R and Toyota Avanza, (6) 8 motorcycles, (7) 41 cheque books of various bank accounts, 13 crediUATM cars of various banks, (8) 53 fake pension payment bills, 15 fake GP Fund Payment bills, 10 insurance policies in the name of hls family, fake rubber stamps in the names of Chairman NAB, SSP Sindh Police, Accountant etc, diaries showing distribution of amounts amongst different persons, cheques of diffurent account (signed/unsigned ).

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3.The 05 vehicles and the 0g motorcycles available there were seized, besides the documents of 0B more vehicles in the name of petitioner Muharnmad Yousuf and his other family members were secured. Additionally the docurnents of 45 different immovable properties and 08 saving certificates in the narne of family members of peiltioner Muhammad yousuf worth Rs.8,00,000/- were also secured. The search of the said premises further led to discovery of documents about 102 benami accounts in soneri Bank, Latifabad Branch and 66 benami accounts in the Branches of uBL Hyderabad. The said benarni accounts were being used and operated by the petitioners in connivance with the District Account office Hyderabad and the bank mi;rragers i.e. petitioners syed shoaib Hassan, Branch Manager UBL and salman Ali Askari, Manager, soneri Bank Latifabad Branch. Allegedly they all by using bogus commutation and gratr.rity cheques accumulated wrongful gain to the tune r:f Rs.323,004,4531- ancl Rs.64,410,2351- from the benami accounts in the aforesaid two banks. The details of benami accounts have been given in the subject reference. That in the investigation, the cheques books of all such benami accounts were recovered from the house of petitioner Muhammad Yousuf. During investigation, it was also found that the said bank managers were living beyond their known sources of income and leading a luxurious life. Their houses were found fully furnished and decorated with expensive articles. The petitioner namely Muhammad yousuf and his sons namely petitioners Arif Yousuf and lrshad yousuf are alleged to have accumulated wealth to the tune of Rs.196,080,494/-. and the total loss caused to the National Exchequer by the pelitioners has been calculated to the tune pf Rs.545,162,7761- and as such the petitioners have committed acts of corrupllon under s.9 of the National Accountability ordinance lggg (NAo) which learl to the filing of the above mentioned reference against them by the National Accountability Br:reau (NAB) before the accountability court in Hyderabad.

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4.Earlier, petitioners syed shoaib Hassan Zaidi and lrsahd yousuf through c.P. Nos.D-63ot2o17 224412017, respectively, applied for pre-arregt bail and they were granted ad interim pre-arrest bail by this court, however, same was not confirmed and their plea for grant of pre-arrest bail was declined by this court vide order dated 05.12.2017; resultanfly, both the petitioners were taken into custody. Thereafter, petitioner syed Shoaib Hassan tlrrough c.P. No.D-3Boa2a17 applied for post-arrest bail, which was also disrr,issed bv this Cour-t vide order clated 31 O1 2o1R urith direnrinn rn rhq

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trial court to conclude the trial of the subject Reference within a period of 03 months from the date of said order, whereas the other petitioners namely salman Ali, Muhammad yousif and Arif y,lusif are in custody and their t petitions iFor grant of post-arrest l-,ail were also dismissed by this court vide order dated 05.12.2017

5.lt appears from the record that petitioners lvluhammad Yousif and Arif Yousif have assailed the order of dismissal of their petitions passed by this court before the Honourable supreme court of pakistan by way of civil Petition No.259 of 2018, however, the same was also dismissed by order of the Hon'ble supreme court dated 17.04.2019, with direction to conclude the trial within a period of three months positively, failing which petitioners m6y if so advised ask for grant of bail even on ground of delay in trial. Through instant petitions, all the petitioners have applied for post-arrest bail on the ground of non-conclusion of trial within a period of 03 months or in other words on the grounds of hardship.

6.Le'1rned counsel for the petitioners mainly emphasized in their argumentg the non-conclusion of the trial of the Reference despite the direction given by this court as well as the Honourable supreme court for deciding the subject Reference within a period of 03 months which had not been complied with; that petitioners syed Shoaib Fiassan and lrshad yousuf are in custody since 05.12.201T whereas Muhamrnad yousif and Arif yousif are in custody since 22.02.2017 and petitioner salman Ali is in custody since 24.05.2017 and no delay has been caused by any of them in the conclusion of the trial and in this respect they have placed reliance on the diary sheets of this court; that till date out of B0 prosecution witnesses only 2g witnesses have been examined and the trial was not within sight of completion and as such they were entifled to bail on hardship grounds. ln support of their contentions, learned counsel relied upon Anwar saifullah Khan v rhe state (2001 scMR 1040), Muharnmad saeed Mehdi v state (2002 scMR 282), Muhamn;rd Nadeem Anwar v National Accountability Bureau (pLD 2o0B supreme court 645), Hinresh Khan v National Accountabitity Bureau (hlAB) (2t,15 SCMR 1092), Muhammad Afzal Br.rtt v state (2015 scMR 1696), Muhammad Amin eureshi v state (2007 FCT.LJ 105), Mansoor Ati V chairman NAB (PLD 2016 sindh 41), and Mushtaq Ahmed v chairman,

NAB (2018 YLR 134).

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iJ tzl 7 - Learned special Prosecutor NAB while opposing the bail petitions of the petitioners, contended that they are responsible for committing the alleged offence and have caused huge loss to the national exchequer. According to him, the petitioners are the beneficrary of all the illegal practices; that the delay in conclusion of the trial is rrot on part of the prosecution but on the part of the ar:cused/petitioners on which he also relied on the diary sheets of the trial court and as such the petitioners petition for bail on hardship grounds should be dismissed i,

B. we have lreard the learned counsel for the petitioners, learned special Prosecutor NAB, perused lhe record and considered the relevant law.

9.we would reiterate that the grant of bail on nardship ground is for the court to determine by exercising its discretion rather than of right as in the case of statutory bail u/s 497 Cr.p.C.

10..Aithough the petitioners have applied for bail on hardship grounds in our view we also need to give some weight to the context of the case. Namely, that all the petitions of the petitioners have been dismissed by this court and the Hon'ble supreme court on merits and that a huge loss has been caused to the national exchequer.

11.At the outset we find that non-compliance of a tlirection given by the High col,rrt to a trial court to conclude a trial within a given period of time does not lead'io the automatic grant of bail and may not on its own even be a fresh grorrnd for grant of bail. ln this respect relianc'e is placed on the case of on l"lisar Ahmed v. The $tate & others (pLD 2016 s.c. 11) which held as under at para-4 (P.13).

"4. We have scanned the material 6rlaced on record and Ere unable to subscribe to such submissions of the learned ASC. Neither non-compliance of the directions issued to thq trial court to conclude the trial expeditiously or within some specified time can be considered as valid ground for grant of bail to an accused, being alien to the provisions of section .[97, Cr.P.C., nor filing of direct complaint will have any bearing as regards earlier bail refusing orders, which have attained finality, unress some fresh ground could be shown by the petitioner for consideration of his request for grant of bail afiesh, which is lacking in the present case,,.(bold added)

12 on this ground alone the petition could have been dismissed but we have als: in the interests of justice and in our discretionary jurisdiction

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consid ere d whether a case of hardship has been made out by any of the petitioners in this case

13.ln the case of shahid Umer v chairman NAB (SBLR 2018 sindh 3s7) this court considered in detail the taw on hardship .lrounds in NAB cases and found as under at para's 28 to 33

"28. Once again however following NAB V Bakhat Zameen's case (Supra) the Supreme Court seems to have now turned to a broader interrpretation of granting bail in NAB cases on the grounds of hardship based on factors which are more in line with Attah Abbass Zaidi,s case (Supra) as opposed to the traditional ground of many years in jail having been served and there being no prospect of the trial concluding in the near future.

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29.For example, in the following orders;

ORDER 03.03.2017 by a 2 member bench of the Supreme Court.

"Petitioner who is facing Reference No.31 of 2016 in Accountability Court-lll, Lahore when failed to get the concession of bail from the lower forum sought indulgence of this Court therefore on the ground that none of the assets is disproportionate to his known means but unfortunately none of lhe documents explaining them has been read in its correct perspective and that he has been iru jail for one year yet the Reference awaits conclusion.

2.The learned Special Prosecutor appearing on behalf of NAB contended that as many as eight witnesses have been examined and that if a month or so is given to the NAB, the trial will stand concluded. He, however, seriously disputed the assertion of learned ASC for the petitioner that the assets of the petltioner are not in ciisproportionate to his known ass'ets.

3.We have gone through the record carefully and considered the submissions of learned ASC for the petitioner as well as the learned Special Prosecutor, NAB.

4.Without entering into the merits of the case lest it prejudices the stance of either of the parties, tfie very fact that the petitioner has been in jail -for one year yet his trial has not been concluded despite there being no lapse on his part. NeedlesS to say speedy trial iS an indefeasible right of the accused particularly in the cases of NAB when Section 16 of the NAO provides that trial shail be conclqded within 30 days. (bold added)

For the reasons discussed above, we convert this petition into appeal, allow it and direct release of the petitioner on bail if he furnishes bail bonds in the sum of rupees five million with two sureties to the satisfaction of the trial Court.

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30.As mentioned earrier and reried upon by the petitioner unreported order of a 3 member bench of the supreme court in civil Petition 17117 syed Rashid Hussain Rizvi v bhairman NAB dated 12-7-2017 where at para S it held as under:

"A look at para-B anrl para-g of the reference would reveal that role assigned to the petitioner is not much different from the one assigned to his co-accused who has since been released on bail. We thus, see no strong reason io treat the petitioner differenfly. The fact that the petitioner has been in jail for tr,vo years yit the conclusipn of his trial is not in sight would tilt in favour of grant rather than refusai of bail,' (bold added)

32.Perhaps this charrge in approach is lluided by Article 10 (A),s requirement of an expeditious trial, the fact that the NAo is special law whose object is speedy disposal of cases within fixed timeframes and the realization that the ground reality is that in NAB cases due to their complexity, there being so many accused (often upwards of 10) each with a separate right of cross examination of usually many witnesses often through separate advocates such trials can often take 5 or more years to complete with a maximum sentence of 14 years and the object of the criminal law primarily being to allow persons to face the trial agerinst them and not to let them rot in jail for years on end in cases wtrere they may be acquitted at the end. Thus, since there is no statutory grounds of bail in NAB cases in terms of hardship the supreme Court may be turning towarcls a more lenient and humane ap!:roach in determining hardship cases in NAB cases based on the grr,und realities that these cases even after several years often rec,listically have no hope in sight of being completed in the near future due to some of the factors mentioned above and as such the Court is taking a more human approach in NAB cases bearing in mind that it is for the prosecution to expeditiously prosecute its cas-e and for the trial court to manage the smooth running and fast and efficient disposal of NAB cases in accordance with the NAo provided that the accused or his representative has not been at fault in delaying the trial. corruption may be a heinous crime which is eating away at the fabric of society and hindering economic development but it should not pelmit the State to lock accused up in jail for years on end without determiiing their guilt, time which the accused cannot recover. A balance needs to be struck between the heinousness of the offense and the liberty of the accused who cannot be detained indefinitely as was held in the classic case of Riasat Ali v Ghutam Muhammad (pLD 1968 sc 353) which seems to have been one of the foundational cases on the grounds of t hardship. such intervention by the courts in such ltRB hardlhip cases mav even be perceived as the court's acting in their discretionary constitutionaljurisdiction to safe guard/protect the fundamental rights oi a citizen who has been in prolonged detention pending compleiion of his" trial due to no fault of his own against the failure of ttre state to exr')editiously prosecute him. lf such NAB trials are taking so long to co;pplete due to no fault of the accuse<J it is not for the accused to be made to suffer prolonged incarceration due to the fault of the state in anv civilized society but for that state to sort out the shorting comings in the criminal justice system so that the accused is not unnecessar;ily ,-^-J^r.^ ^,,t!a^- -t-

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tzq creating more accountability courts to deal with the heavy work load so that cases can be heard more frequenUy ancl decided more speedily as was the intention of the logislature which is made abundanily apparent through both the preambte and s.16 (a) NAo requiring tiials to be heard on a day to day basis and decided within 30 days. Every thing of course, however, in a har"dship cases will turn on the particular facts and circumstances of each case and as such the Atta Abbas Zaidi (sttpra)considerationsifactors may prove to be useful in making such determinations.

33.Thus, it would almost seem that we are back to the Atta Abbas Zaidi (supra) considerations/factors in NAB cases for the grant of bail on hardship grounds the inain ones being the length of time spent in jail; whether any delay has been caused by the fault of the petitioper and based on the particular facts and circumstances of the casp realistically how much longer is the trial likely to conclude and whether a ,jirection to complete the within 6 months would enable the trial to cc'rclude."

14.lt would seem that the Hon'ble Supreme Court is continuing with such an approach in NAB cases; vis-a-vis bail on hardship grounds as can be seen by its order dated 17-11-2017 in the case of Ha'rrood Ur Reham eazi V Government of Sindh (unreported) in Civil Fetitio,r 3381t17 which is set out below for ease of reference:

1 . Petitioner who is facing Reference No.a2l2015 before the Accountability Court No.ll at Karachi when failed to get the concession of bail from the High Court, in the second round, asked for indulgence of ttris Court mainly on the ground that more than two years have passed yet conclusion of his trial is not in sight.

2.L.earned Special Prosecutor appearing on behalf of NAB contended thal where connivance and complicity of the petitioner is patent and palpable from the record grant of bail would amount to encouraging the commission of such crime and that five witnesses have already been examined and those lvho are left would be examined in a few months. il

3.\lVe have gone through the record carefully and considered the suhmissions of the learned ASC for the petitioner as well as learned Special Prosecutor, NAB.

4.Petitioner on merits may not have a case for grant of bail but the fact is that he has been in jail for two years and two months yet conclusion of his trial is not in sight. ln the circumstances, ihe petitioner cannot be kept on tenterhooks for an indefinite periodrof time. We thus, convert this petition into appeat, altow it and admit the petitioner to hail if he furnishes bail bonds in the sum :of Rs'10,00,0001 (Rupees Ten Millions) alongwith two sureties in the like amount to the satisfaction of the Accountability Court.(bold added)

15.ln our view for bail on hardship grounds to be granted whether the bail Oll merit has heen dismisserl hv this r:nr rrt nr fhp qr rnrernc nnr rrt anr{ tho

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t2i amount of loss to the exchequer must be given some weight but the main considerations as distilled from the latest supreme court authorities appear to be (a) lipw long has the petitioner been in custody with more weight being given to'rhe ground of harclship the longer the petitioner has been in custody e.g for over 2 years and (b)whether the delay in the trial has been caused by the petitioner and (c) whr;ther the trial is currenfly proceeding expeditiously and (d) whether there are prospects of the trial concluding in the near future in which case another direction to complete the trial within a specific period of time would be the appropriate course and (e) the particular facts and circumstances of each case and (f) if bail is granterl the imposition of a heavy surety.

16.Turning to the instant case. petitioners syed shoaib Hassan and lrshad Yousuf have been in custody for around g months and it appears that considerable delay has been caused by syed shoaib Hasan and in our view 9 months in custody would prima facie excluc.le them from bail on hardship grounds especially as syed shoaib Hasan has caused some delay in the conclusirrn of the trial.

17.Pelitiorrer salman Ali has been in custody for around 15 months and petitioners Muhammad Yousif and Arif yousif have been in custody for around 1B months with little delay being caused on their part. Thus prima facie they may qualify for bail on hardship grounds.

18.The crucial question therefore appears to be what is the stage of the case and how is the trial proceeding? At this point in time 30 out of g0 PW's have been examined and the trial is in full swing with 4 pw's being examined on the last date of hearing i.e 24.og.zo1g.ln this case there is thc prospect r:f some PW's being given up and importantly there are only 5 accused which means that there will only be 5 cross examinations per witness. l'hus, in our considered view we are of the opinion that the trial can be completed within a period of 3 months from the date of this order. In this regard vr: are fortified by the cases of Muhammad Nawaz v state (2002 scMR 1-r81) and Rehnratuilah v state (2011 scMR 1332). Thus the bail petitioniiof all the petitioners are dismissed on hardship grounds and the trial court is directed to proceed with the trial r:n a day to day basis and not allow any adjournment on any flimsy ground and complete the trial within 3 months of the date of this order. The Adl.Registrar of this court shall send a CfrnV nf lhis nrrlar immadi:lolrr ln *ha .:nr.nr rnt.rhiti{rr aar *r i^ rJ.,-r^-^L-.t .--

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information and compliance which shall submit fortnighfly progress reports to this court

19 All the petitions stand disposed of in the above terms.

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