Ishrat Ahmed (Petitioner) VS Chairman NAB and Ors (Respondent)

lZL

IN THE HIGH COURT OF S INDH, I(ARACHI

Before:- Mr. Justice Muhammad Iqbal Kalhoro,J.

Mr. Justice Mohammed Karim Khan Agha, J

Petltlon No. and ndme o f oetltloner o lonq wlth counsel, 1 C.P No.D-4279 of 2Ol7 Syed Manzar Abbas (petitioner) V/s National Accountability Bureau through Mr. Raj Ati Wahid Kanwar Advocate.

2 C.P No.D-748 of 2016 Agha Ghulam Mohiuddin (petitioner) r V/s The Director General NAB Karachi through Mt. Zakir Laghari, Advocate.

J C.P No.D-4797 of 2OI7 Ishrat Ahmed (petitioner) V/s The Chairman NAB & another through Mr. Muhammad Jameel, Advocate.

Counsel for the Respondents.

Mr, Muhammad Altaf, Special Prosecutor, NAB.

Dates of Hearing: 11.04.2018

Date of Order: 2O.O4.2OI8

ORDER

Mohammed Karla Khan Agha. J. These petitions have been filed by Syed Manzar Abbas, Agha Ghulam Mohiuddin and Ishrat Ahmed (the petitioners) for grant of Post arrest bail on hardship * grounds in National Accountability Bureau (NAB) References No'36 and 37 of 2OL6 The State v. Manzar Abbas & others which were filed by the NAB at Karachi and are proceeding in Accountability Court No.III Karachi by way of consolidated Reference 13, 29, 30 and 39 of 2015 (4 references were consolidated since tJrey revolved around similar subject matter/ offense) on account of the petitioner's and other co-accused's involvement in cormption and corrupt practices under the National Accountability Ordinance 1999 (NAO) in connection with a Housing scam involving millions of Rupees.

2.At the outset learned counsel for all the petitioners made it clear that they were only pressing their petitions for bail on the ground of hardship. Petitioner Manzar Abbas submitted that he was arrested on 25-06-2015 (around 2years and 10 montJrs ago), petitioner Agha Ghulam Mohiuddin submitted that he was

Y

arrested on 21-01-2015 (over 3 years ago) and petitioner Ishrat Ahmed submitted that he was arrested in the month of February. a

I

1e'l 2015 (over 3 years ago) yet their trial had still not been concluded for no fault of theirs or anyone acting on their behalf and as such all the petitioners were entitled to bail on hardship grounds. In support of their contention they placed reliance on the order sheets of the Accountability Court where the case was proceeding,

3.On the other hand learned speciat prosecutor NAB opposed the grant of bail on the ground of hardship to all the petitioners as according to him the petitioners had through either themselves or

Y

their counsel caused the delay in the trial and as such they were not entitled to relief on hardship grounds.

4.We have considered the submissions of learned counsel for the parties, perused the record and considered the relevant law.

5.As this case involves bail on hardship grounds only which is a distinct category of bail based mainly on delay in concluding the trial we do not intend to go into the merits of the case although we are aware that the alleged offense has caused a huge loss to the exchequer, the petitioners are some of the main accused in the case and petitioner Manzar Abbass' petition for post arrest bail was dismissed by this Court on merits by order dated 05-10-2015. The petitioner challenged the aforesaid order before the Honble Supreme Court which by order dated 19-01-2016 was dismissed { as not pressed. He had also moved a petition before this court on the grounds of statutory delay which was dismissed vide order dated t9-01-2017.

6.We have carefully reviewed the diary sheets with the able assistance of learned counsel for the petitioners and special prosecutor NAB and it appears that only on about a handful of occasions could it be said that the proceedings were delayed on the sole account of the petitioners as opposed to the pO being on leave, absence of PW's, lawyers strikes, the matter being adjourned due to want of time etc.

7, We also note that when the petitioner Manzar Abbass, last petition for statutory bail was rejected by this court vide order dated 19-01-2017 (over a year ago) this court gave a direction that the trial court hear the case on a day to day basis and decide the same within 6 months of the order. One of the factors which led to that order was the fact that there was only around 13 pW,s (as wl

1z^8 apparently some were to be given up by the prosecution) to be examined at that time and that with only 7 accused left it was reasonable to assume that the trial would be completed within a period of 6 months. It is significant that our direction expired 6 months ago and that according to the defense there are still 36 PW's to be examined as a number of PW's who were supposed to have been given up were not. Today the NAB Prosecutor has informed us that only 6 PW's remain to be examined however this Y is contradicted by the list of PW's which is on record as it appears that since our last order no PW was in fact given up by the prosecutor at trial (as opposed to the NAB Prosecutor appearing before us)

8.In the case of Shahld Umer V Chairman NAB (SBLR 2018 Sindh 357) this court considered in detail the law on hardship grounds in NAB cases and found as under at para's 28 to 33 "28. Once again however following NAB V BaLhat Zameen's caee (Supra) the Supreme Court seems to have now turned to a broader interpretation of granting bail in NAB cases on the grounds of hardship based on factors which are more in line with Attah Abbags Zaldl'c cage (Supraf as opposed to the traditional ground of meay yeare in jail having been served and there being no prospect of the trial concluding in the near future.

29.For example, in the following orders;

I

ORDER O3.O3.2O17 by a 2 member bench of tho Supreme Court.

'Petitioner who is facing Reference No.3l of 2016 in Accountability Court-Iil, Lahore when failed to get ttre 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 the documents explaining them has been read in its correct perspective aad tbat he hae been laJatl for ore yoaa yet the Reference awalts eoaclusion.

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 petitioner are not in disproportionate to his known assets,

3.We have gone through the record carefully and considered the submissions of learned ASC for the q

petitioner as well as the learned Special Prosecutor,

NAB.

4.trIlthout enteriag lnto tbe merlts of the ease leet it preJudlces the etance of elther of the partlee, the very fact that the petltloner has bcen ia Jatl fot oae year yet his trial has not been coucluded desplte there being no lapse on hts part. I[eedlees to say speedy trlal is an lndefeaetble rlglt of the accused particularly ln the casee of NAB when Sectloa 16 of the NAO prortdes that trlal shall be coacluded wtttrln 3O days. (bold added)

Y

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 {ive million with two sureties to the satisfaction of the trial Court.

30.As mentioned earlier and relied upon by the petitioner unreported order of a 3 member bench of the Supreme Court ln Clvll Petlttot lTlLT Syed Rashtd Husseln Rtzvl V Chalrman NAB dated L2-7-2O17 where at para S tt held as u[der:

'A look at para-8 and para-9 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 gtrong reason to treat tJle petitioner differently. The fact that the petitloner has been ln Jail for tro years yet the coucluslon of hig trlal ls not ta stght would tilt In favour of graat rather thaa refusal of bail' (bold added)

Y

32 Perhaps this change in approach is guided 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 ttre 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 against them and not to let them rot in jail for years on end iniases where 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 towards a more fen!9nt and humane approach in determining hardship cases in NAB cases based on the ground realities ihat thesl cases even after severa-l years often realistically 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 Y it is for the prosecution to expeditiously prosecute its case and for the trial court to manage the smooth running and fast and efficient disposal of NAB cases in accordancJ with the NAO provided that the accuged or hie represeatative

V

3go has aot beea at fault in delaying the trlal. Cormption may be a heinous crime which is eating away at the fabric of society and hindering economic development but it should not permit the State to lock accused up in jail for years on end without determining 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 Rlasat All V Ghulam Muhammad (PLD 1968 SC 353) which seems to have been one of the foundational cases on the grounds of hardship. Such intervention by the courts in such NAB hardship cases may even be perceived as the court's acting in their discretionary constitutional jurisdiction to safe guard/protect the fundamental rights of a citben who has been in prolonged detention pending completion of his trial due to no fault of his own against the failure of the State to expeditiously prosecute him. If such NAB trials are taking so long to complete due to no fault of the accused it is not for the accused to be made to suffer prolonged incarceration due to the fault of the State in any civilized society but for that State to sort out the shorting comings in the criminal justice system so that the accused is not unnecessarily made to suffer due to the State's failure. In such cases for example by creating more accountability courts to deal with the hea',y work load so tl:at cases can be heard more frequently and decided more speedily as was the intention of the legislature which is made abundantly apparent through both the preamble and 5.16 (a) NAO requiring trials to be heard on a day to day basis and decided within 30 days. Every thing of course, however, in a hardship cases will turn on tl:re particular facts and circumstances of each case and as such the Atta Abbas Zaidt (Supra)considerations/factors may prove to be useful in making such determinations.

Y

33.Thus, it would almost seem that we are back to the Atta Abbae Zatdl (Supra) considerations/factors in NAB cases for the grant of bail on hardship grounds the main ones being the length of time spent in jail, whether any delay has been caused by the fault of the petitioner and based on the particular facts and circumstances of the case realistically how much longer is the trial likely to conclude and whether a direction to complete the within 6 months would enable the trial to conclude."

9.It 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 17-11-2OlZ in the case of Hamood Ur Reham Qazi V Governoent of Sindh (unreported) in Civil Petition 338L / 17 which is set out below for ease of reference:

1.Petitioner who is facing Reference No.42/201S before the Accountability Court No.lI at Karachi when failed to get the concession of bail from the High Court, in the second iound, Y asked for indulgence of this Court mainly on the ground that more than two years have passed yet conclusion- of his trial is not in sight.

2.Learned Special Prosecutor appearing on behalf of NAB contended that 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 who are left would be examined in a few months,

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

4.Potltloner on meritg may aot have a case for graat of bail but tho fact ls that he has been ln Jall for two years ead two nonthg yet concluelon of hte trtal ls aot la eight. In the clrcumstances, the petitioner cannot be kept on teaterhoo&s for an indeflalte perlod of tlme. We thus, convert thts petttlon lnto appeal, allow lt aad adait the petitloaer to bail if he furnishes bail bonds in the sum of Rs, 10,00,000/- (Rupees Ten Millions) alongwith two sureties in the like amount to the satisfaction of the Accountability Court.(bold added)

10.In the case in hand we lind that the petitioners have spent 2 years and 1O months and over 3 years in jail respectively. The delay in completing the trial is largely due to no fault of their own and that realistically the trial will not be completed in the near future even if we give another direction to tl:e trial court to complete the trial. As it appears that 36 PW's still remain on the list of witnesses and even other wise hardly any progress has been made in the trial since the last bail order in respect of the same T reference was dismissed by this court over a year ago and as such tJle completion of the trial cannot realistically be said to be close to completion.

11.We have also taken into consideration the fact that the State has little interest in expediting the trial of accused in NAEI cases by creating more NAB courts so that cases could he be heard more expeditiously. In the case of Chaudhry Mohammod Asharatf v Federatioa of Paktstan in Cp.D T083/2016 which concerned whether S. 16 (a) NAO was directory or mandatory in nature i.e the obligation for NAB cases to proceed on a day to day basis and be completed within 30 days vide our order dated l4-t2-2Ol7 we noted that hardly any NAB cases were completed within this time frame contrary to the intent and spirit of the legislature and although we found that S.16 (a) was directory in nature as opposed rl to mandatory we held as under at para's 29 to 32.

29.In making this finding we would tike to emphasize that it in no way detracts from the NAB and the accountability ry

courts obligation to complete the trial of the accused under the NAO as expeditiously as possible and that in appropriate cases of delay bail may be granted.

30.We would also observe that since hardly any NAB trial proceeds on a day to day basis or is completed within 30 days in order to give effect to the intent and spirit of the NAO which specilically provides for expeditious trials it is incumbent upon the Federal Government to establish suflicient accountability courts in each province to ensure that such NAB trials are completed within the shortest possible time rather than be left to drag on for years on end, which is very often the case in trials under the NAO, due to a lack of accountability courts and judges especially as statutory bail on the grounds of delay are not available in such cases.

31.We accept that such delay is caused by a number of factors such as the criminal justice system itself whereby if an absconder is later arrested the charge has to be reframed and all the evidence again recorded from scratch which leads to inordinate delay; the prosecution not producing PW's or documents in a timely manner and adding too many accused in the reference and too many PW's and documents which makes the trial almost unmanageable and unnecessarily long especially as each of the accused will have a separate right of cross examination of each PW through a different counsel.(In this respect in some cases under the NAO as many as 50 accused have been placed in the reference and the average appears to be at least 10 to 15) and the defense counsel seeking adjournments on account of seniors being busy before superior courts, counsel on general adjournments, lawyers strikes, illness, deaths in the family, absence of accused etc. However, the accused should not be made to suffer and rot in jail for years on end due to such } short comings/failures which are often not caused by him. Ultimately, it is the obligation of the state as envisaged under the NAO to provide an expeditious trial to the accused

32.As such the Federai Law Secretary is hereby dfuected to establish withln 3 months of the date of this order three more fully functioning accountability courts in Karachi complete with office space, judges, a-11 other ancillary staff and necessary equipment so that the back log of accountability cases in Sindh can be reduced and meaningful efforts made to complete such trials expeditiously so that accused do not languish in jails for years on end which was not contemplated under the NAO which provides for speedy trials'.

L2. Rather than being sympathetic to the plight of the accused in NAIi cases who are on occasion left to rot in jail for years on end due to the slowness of trial and the lack of bail on the grounds of statutory delay the Federation moved the Supreme Court to suspend this court's direction in para 32 above to establish 3 more accountability courts in Karachi in order to speed up trials on the grounds that there was a meager pendency of NAB cases before

L5

T33.

the accountability courts in Karachi. Perhaps this observation was on account of a lack of understanding of NAB cases by the Federation where there are complex issues i4volved, countless accused (each ofwhom usually engage a separa counsel for cross examination of each witness), PW's, documen etc and the fact that the number of cases in each court has over e last number of years risen from approx. 20 to 50 .per court to NAB filing more references in recent times and especially w en accountability court V was shifted to Sukkur leaving only 4 ac untability courts for the whole of Karachi. The Hon'ble Supreme Court suspended the above direction and asked for certain ntobe provided to it in respect of NAB proceedings in Karachi which case still remains pending before the Hon'ble Supreme Court. Thus, we have also kept in view this attitude of the Federal Government which prima facie seems to be in contradiction to its constitutional obligation under A.l0(A) to ensure speedy trials to the citizens of this countr5r and the Preamble to the NAO and S.16 (a) NAO. rq 13, As such the petitioner's Manaar 4!!elg, Agha Ghulam Mohiuddin and Ishrat Ahmed are granted post arrest bail on hardship grounds in each reference concerning Benazir Housing cell including the aforesaid consolidated reference subject to them each furnishing 2 solvent sureties in the sum of RS 2.5 million (25 lacs) each and PR bond in the like amount to the satisfaction of t the Nazir of this court. The secretary ministry of interior is directed to place the names of all three petitioners on the ECL forthwith.

14.It is made clear that if the petitioners fail to attend the trial proceedings or if any delay in completion of tJle trial is caused on the part of any one of them then the NAB may move this court for the cancellation of the bail which has been granted by this order to the petitioner who is causing the delay. A copy of this order shall be transmitted to Secretary Ministry of interior for information and compliance in terms of placing the names of the three petitioners on the ECL.

15.The petitions stand disposed of in the above terms Yk

JUDEE

Y

JUDG -,1 4ol8