Shahid Umer (Petitioner) VS The Chairman NAB and Ors (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

Before Mr. Justice Ahmed Ali M. Shaikh, C J' Mr. Justice Mohammed Karim Khan Agha'J C.P. No. D-5369 OF 2Ol7' Shahid Umar Vs.

The Chairman NAB & others'

Date of hearing 15.O9.2017

Date of order t2.ro.2017 Petitioners: Through Mr. Mo hammad II as lflran advocate Respondents: Through Mr. Muhammad Altaf, Special Prosecutor NAB alon th l.o I

ORD.ER

we Propose Mohammed KarTm Kh an Aqha. J. BY this order post arrest bail to dispose of the above mentioned petition for has been pressed filed by the petitioner (Shahid Umar) which i coupled with by his counsel solely on the grounds of hardship

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the rule of consistencY ' i

i petitioner was The brief facts of the case are that the

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charged along with 39 other co-accused in National

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for acts of Accountability Bureau (NAB) referen ce No'27 l2ol5 I corruption and corrupt practices under S 9 of the National i l

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AccountabilityBureauordinancelggg(NAo)inconnection I i

withtheLinesAreaRedevelopmentProject(LARP)whichacts of rupees to the of corruption caused a loss of millions i national exchequer'

are Government 3, Seven of the accused in the reference at the relevant time was officials including the petitioner who

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Additional .Director Finance LARP whilst the other 32 co-

accused are beneliciaries'

bail on merits

4.The petitioner's application for post arrest was dismissed by this Court vide order dated 18-12-201S'The on hardship petitioner then applied for post arrest bail his trial grounds due to the prolonged delay in conipleting dated 31 03 201t tt4p which was rejected by this Court vide order withadirectionthatthetrialcourtcompletethetrialwithin3 months. This order was aPPealed to the Hon'ble SuPreme the same vide Court where a two member bench rejected order dated 29-06-2017 with a direction to exPedite the in recording of the witnesses and decide the matter accordance with the ialt'

has again applied

5.Through this petition the petitioner in view the fact for bail on the grounds of hardship keepini originally rejected his that 3 months had past since this court to complete the bail on hardship grounds and the direction with and it trial within 3 months had not been complied conclude the trial' would still'take considerable time to un reported order of a 3

6.He also placed reliance on ar Court in Civll Petition member bench of the Supreme L7 l7 Syed Rashid flussain Rizvi V Chairman NAB dated

the supreme rejected his l2-7 -2OL7 (approx 2 weeks after bailonthegroundsofhardship)wherebytheHonble arlother on hardship grounds to Supreme Court granted bail namely accused No 5 Syed co-accused in the same reference Rashid Hussain Rizvi

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7 . Thus, since the petitioner has spent more than 2 years in jail and'the trial is no where near to comp'letion and his role is on the same footing as accused No'S in the same reference Syed Rashid Hussain Rizvi who had been granted bail by the Hon'ble supreme court on the grounds of hardship he was also entitled to bail on the grounds of hardship based on the rule. of consistencY

B. On the other hand learned counsel for NAB strongly opposed the grant of bail on hardship grounds as a direction to complete the case within a given time was not a ne\{' ground for'the grant of bail; the petitioner's post arre st bail 'ot'e of the main had been declined on merits; that he *"" accused and the ioss to the national exchequer was colossal' He placed reliance on a detailed order of another 3 member of NAB V Bench of the Supreme Court in the unreported case Bakhat Zalneen (CP 154212016 dated 26-0A-20161 whereby a stricter interpretation of hardship was to be taken in

NAB

post arrest cases and as such the petitioner's application for baii on grounds of hardship should be dismissed' He also

placed reliance on the case of Nisar Ahmed v' The State &

others (PLD 2016 S.C. 11)'

We have heard the parties' perused the g. record and

considered the relevant case iaw on the subject' is no

10.At th.e outset we would make it clear'that there ground for the grant of bail on account of statutory delay in of 3'497 Cr'PC' lf' NAB cases as set out in the third proviso l,

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however, there was a prolonged deiay rn a NAB case then the accused could apply for bail on hardship grounds.

11.Frrstly we find that non-compliance of a direction grven by the High Court to a trial court to conclude a trial within a given period of time may not on rts own be a fresh ground for grant of barl. In thrs respect reliance is placed on the case of Nisar Ahmed v. The State & others (PLD 2016 S.C. 11) which held as under at para-4 (P. 13).

"4. We have scanned the raaterial placed on record and are unable to subscribe to such submtssions of the iearned ASC. Neither non-compliance of the directions issued to the tnai Court to conclude the tnal expeditiously or withrn some spectfted time can be considered as vahd ground for grant of bail to an accused, being alten to the provrsions of section 497, Cr.P.C., nor filing of direct complatnt wril have any bearing as regards earlier ball refusing orders, whrch have attained finality, unless some fresh ground could be shown by the petitioner for consideration of his rqquest for gratrt of bail afresh, which is lacking in the present case"

12.On this ground alone the pehhon may have been dismrssed but we have also in the interests of justice arrd in our discretionary jurisdiction considered whether thls ground could amount to hardship especially as a new ground of the rule of conslstency appears to heave arisen and tl-re other particular facts and crrcumstances of the case

13.Traditionally the superlor .;udrcrary has tended to take a stringent view as to what amounts to hardship ald hardshtp' cases were classified as being those where there has been a "shockrng" or "in ordinate" or "repulsive and unconsctonable" delay in complettng the tnal, whrch often runs into a delay of g,/

a number of years and where there seems little chance of the trial being completed in the near future, as opposed to a lesser degree of delay. For exampie, in -cases such as Hamesh Khan V NAB (2015 SCMR 1092 almost 5 years delay), The State V. Syed Qaim Ali Shah (1992 SCMR 2192), Riasat Ali V. Ghulam Muhammad and the State (PLD 1968 SC 353), Gul Hasan Penhyar V The State (1997 SCMR 390 around 6 years detay) Muhammad Azim V The State (2009 P Cr.LJ 1314, Kar. Around 6 years delay), Hashim V The State (2009 YLR 1777, Kar. Around 6 years delay) Shah Nawaz V The State (2O10 YLR 3182, Kar". Around 3 yeals delay) Anwar Ali V The State (2OO2 P Cr' L J 186' Kar' Around 2 years to even frame the charge).

14.Thus, the delay needed to be a long one, through no fault of the. accused and anyone acting on his behalf and the trial was not likely to conclude in the near future'

15.Under the NAO as mentioned above there is no provision for statutory bail on account of delay which under 5.497 Cr. PC is a right whereas hardship cases are at .the discretion of the Court based on the parti'cular facts and circumstances of the case. However the Preamble to the

NAO

in provided for the speedy disposal of cases and S' 16 (a) NAO particular Provided as .under:

1'16. Ttial of Offences' 1 [(a) Notwithstanding anything contained in any oth-1r. law for the ttmefor being in force, an,".'"ti shall be prosecuted o?t".t"" under this Ordinance in the Court and "n be heard from day to day and shall tfr.

"""" of within 30 daYs l be disposed "f."il l/'

16.Perhaps by keeping these requirements of an initiall'v expeditious trial in view in NAB cases it appears that the Superior Courts took a relatively tough view on any delay

and was prepared to grant bail in NAB cases even if the delay

was for a relatively lesser period of time' For example in the

(2002 SCMR

case of Muhammed Saeed Mehdi V The State cases could 2S2l itwas held that the Supreme Court in NAB primarily grant bail ':in appropriate cases"' Although this case revolved around bail on medical grounds it held as under at

P.288 Para 6 in terms of delaY' ,,par-a 6. We have carefully considered the for the submissions made by the learned counsel parties. The object oi a criminal trial is to make the ,accused face the trial and not to punish- an against undertrial prisontr for the offenie alleged to him' The f,asic idea is to enable the accused answer the criminal prosecution again st h.im

rather than to rot him teirind the bars lt is also well-recognised principle of law that bail cannot of non- be withheld as punishment on aecusation bailable offences against an accused lt is also a salutary pt"p""lti""" of law that an accused is ' entitled to e'xpeditious access to justice' which includes t tl-glt to fair expeditious trial without case' it is ..,y ,t''"o'"o'i''ble delay ln the instant has admitted ih" tria-l against the petitioner'him 'h"i fot t'o f;ult attributable to ' .rot "o-rntt'ltJ tt is undisitlt"d th" undueofdelay has taken the trial against ;laJe ;';i-';;"'*encement the petition"et"- iot "o"-ptoduction of found to be co-accused Mr' Shafi fvf who has been unable t"'tt"'"i-t" Attock though it is conceded that he i"-';; to appear befgre any Court al "S"f'*""i' RawalpinJi. ge that'as it m11' the object 'of rcABorain";-ct'^sco"t"inedinitspreamtle' int"t tfi^, provides for expeditious trial of schedutei' 'orr"t"t" within . the shortest reassured in possible ii-t' it'i= -is for -position section fO- "f UeS O-rdinance' postulating its conclusion day to day triat of the case and in the within ;i"";h"ty days' obviously' ' present ;;t ;;il otjett does not seem to be .-'y*tt""--it""' its achievement for the (bold added) reasons it"iio""a above"' l'C

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17 . In the case of Jamil A. Durrani V State (PLD 2003 Kar 393) it was held as under at P.398'

"The applicant is in j ail for last more than nineteen (19) months and the trlal is not within sight of completion in near future' tt is cardinal principle of law that bajl cannot be withheld as a punishment and nobody can be kept in jail for indefinite period as held in the case of Abdul Qadir (supra), therefore, we feel inclingd to hold that under these circumstances a case for grant of bail has been made out."

18.In the case of Aga Jahanzeb V NAB (2OO5 SCMR 1666) the Honlrle Supreme Court observed as under at P '1167 ' IWhen questioned that under the NAB Ordinance trial is tL conclude within 30 days. Mr' M lbrahim Satti, Advocate Supreme Court submitted that this time period is not mandatory but directory. for the time being we wou'ld refrain from- expressrng all-\' opinion as to whether the timeframe is mandatory oi directory, but would direct that after submission of challan in this case on 7th of May, 2OO3 if the trial does not commence or conclude within 3O days from the said date petitioner would automatically become.entitled io the grant of bail subject to his furnishing bail bonds i-n the sum of Rs.five millions with one 'surety in the like amount to the satisfaction of the trial Court at Lahore."(bo1d added)

19.In the case of Muhammed Nadeem Anwar V NAB (PLD 2008 SC P.645) the Hon'ble Supreme Court held as under at

P.649

"The object of criminal law is to ensure availabilitv of the a'ccused to face trial arld not to punish him io, offe.,.e allegedly pending final determination ty . .o-p.t"r,I corit of law lt is well settled p'.i.r"ipf" tf tu.* that grant ol bail . cannot be i"itf-rt lfa as punishment on accusation of non- bailable offence against an accused An accused is entitled to expeditious anda inexpensive to fair t":"stice, wiich includes rightmanner and speedy trial in a transparent without any unreasonable delay' This intention the N'A'B' il;J;;" rJ-assored in section 16forofday O.lirrrn." laying down criteria30 days' to day But in itf.i "ta its Lonllusion withindoes not aPPear iL. insta.rt case such object U

likely to be achieved anywhere in the near futuie and would not constitute a bar for grant of bail to the petitionets' The truth or otherwise .of charges levJed against petitioners would after only be dete-rmined at the conclusion of trtal taking into consideration the evidence adduced by both ihe parties. It was held by this Court in the case of Aga Jehanzeb v. N A,B' & others (2005 SCMR 166;6) that if trial of case is not concluded within 30 days from date of submission of challan' accused would automatically become entitled to grant of bail" (bold added)

20.It should also be kept mind that tliese cases were decided before the addition of Article 10(A) to the constitution which in effect guarantees the due process rights of an accused which would include the right to an expeditious trial'

Article 10 (A) Provides as under:

of "10(A). Right to fair trial' For the determination his civil rigfrts ana obligations or r-n any criminal charge aginst him a person shall be entitled to a fair trial and due Process"'

21.In later times it appears that the superior courts including the Supreme Court took a more stringent approach to revert to the grant of bail on hardship grounds and tended backtothemoretraditionalapproachj6falengthydelayof the trial' many years being involved before the conclusion of

22.In the case of Atta Abbass Zaidi Y Chairman NAB (SBLR 2017 1011) of which one of us "vvas a member

to give (Mohammed Karim Khan Agha J) this court attempted some consideration s/ factors as to when it maY be on hardsh'ip "appropriate" for bail to be granted in NAB cases on account of grounds bearing in mind that the grant of b'ail following terms hardship was a discretlonary ground in the at P. 1023 Pata20

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2O. Although, as indicated above, no hard and fast rule can be set out as to what might amount to a hardship case in NAB caseb, as oppbsed to other criminai cases where statutory bail on the ground of delay is applicable, as each case will depend upon its own- particular facts and circumstances we have in determining whether the instant case is a hardship case been mindful of the following in exhaustive consideration s / factors.

(a)the time spent in custody without completion of the trial.

F) that delay in the compietion of the trial should not have been caused by any fault of the accused or someone acting on his behalf.

(c)the right to an expeditious trial without undue deiay ' g,rirrrrteed by Article 10(A) of the Constitution espJcially bearing in mind the Preamble to the NAO requirin[ speedylrials and S'16(a] of the NAO which requi.es=trials to proceed on a day to day basis and be completed within 3O daYs

(d)that as pointed out by the Hon'lole Supreme Court in the recent case of Zia;glrratrn Ashraf V' State (20 ltr SCMR 1B) that if an accused is acquitted at trial then no' reparation or compensation can be .awarded to hi; i; respect of the time he has spent in jail' It is lost time which may have been spent with his farnily or in other useful Pursuits'

(e)whether there was a reasonable chance of the trial being completed within 6 months of the date of this ordei which might justify giving appropriate directions to the Accountability Court rather than enlarging the accused on bail'

(l whether the charge had been framed'yet' (g) whether a majority of ,the PW's had at the time of hearing the petition been examined'

(h)how many PW's were ieft to be examined

(i)whether there were more than 7 accused left in the reference.

accused may have- entered into i"o-" oi the original declared proclaimed offendersJ pt.. Uurgair, o. i""t' the exchequer had.been made up [) whether the loss tosubstantial was the loss bearing in or otherwise how mind the time alreadY sPent in jail' had been

(k)whether the post arrest bail of the accused deciined on merits

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(1)whether the accused was the main accused in the case

(m)whether the accused was of an advanced age

(n)whether the accused suffered fto* "t'y serious medical conditions.

(o)the general PrinciPle that bail should not be withheld as a Punishment' and / or of the accused absconding bail

(p)the chances interfering wi th witnesses if he is enlarged on (ql whether the accused has been convicted before under '- ..v a"ii legislation or entered into a plea bargain or"l.ruptlon voluntarY return'

(r)whether the circumstances leading to the delay could of law be said to amount to an abuse ol the process

(s)And finaliy in our constitutional and discretionarSt '-' j".i"ai"tioi, u.td", A l99 of the Constitution the 'r"qrir.-..rt that we do complete'and substantial justice.

23.In the above case of Atta Abbas Zaidi (Supra) in which

same reference as the petitioner was also accused No 4 in the only spending the petitioner in this case despite the petitioner 14 months in jail this court granted him bail on hardship the above grounds after taking into account a'll considerations/ factors for the reasons in para's 26 and' 27 of

the order as set out below;

of the "26. The - next issue is whether 'any othercau be .J*" *".aioned con siderations / factors - I.""*a into service to justify -petitioner this - being a ^."1. onl-v-. having il;;o$, i""pit" tlre of the other factors the S;r"o"i-;;;tr'"-in i"l' against him.are tn1 n" Hff"";;'J';t'i"r, *tigtt .',tit' accused' post arrest ;;;; ;; be one of tlie ;'J"il;;;"a""1'a to him and the loss to the large' exchequer is very is of greater On the other hand and whichmonths period :;""; to u" i" that within this 14 ;;il;;';* io pw'" h"" b"" examined^.and "i accused' We have seriously there are 38 w

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considered this aspect of the case i e delay tn framing of the chaige and only 1 out of 1 0.. PW's being Jxa-ined so far along with potentially 38 accuied which could amount to 38 separate cross by different lawyers of-- each "*"-i.r.tio.r" ..-"i.ri"g"ofwitness and consider that in the light of e. iO tnl the Constitution, the preamble to the NaO S.16 (a) NAO, the medical condition of ",ia itre petitioner thai on balance especially due to the large number of accused and'potential cross exininations that realistically in our view there *" hardly any chances of this case being r'r'ould justify a completed"in the near luture as direction to complete the trial within 6 months as t.ii"ir."ffv "p"u-ki.tg it appears that the triaj may yet take at teast a year io complete if not much i;g;.. As such based on the above discussion' . bail on the grounds of statutory delav is "ftfio"gfl ;"i ;;"" to the p"Iitiot'tt, in 'the interests of we co.,sid"i that the petitioner. has. made :"Ji"" ln our 'or..,t . of 'barl on hardship grounds ,i"* a."u"" f O (A) of the Constitution which includes the right to an expeditious trial ,should be -"..ririgtrt and should be fully applied in <-rrder to ;;;;l; under trial prisoner from .prolonged no fault il.-a" of detention during his trial due tocannot be ;i;i" ;*". A. 1o (A) of the Constitution a'paper"'or "illusionary right"-but rather a iive,"" "."" practicabte ana enforceable right"'

24.This court considered that the above order struck a fair in balance in determining the factors/ considerations its discretion hardship cases in NAB matters whilst exercising 'can be granted bearing in mind that even a murderer of statutory bail as of right provided that the requirements S.4gTCr.PCaremetandhemaybesubjecttothedeath sentence ol 14 penalty on conviction compared to a maximum years in jail in NAB cases whilst accepting that corruption is

society' a serious crime and a major menace to factors as

25.In essence we therefore identified the key in jail by the petitioner being the length of time already spent how much longer with no fault being caused on his part and lt/ ll

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on the trial was realistically likely to take to conclude based the particular facts and circumstances of the case it

26.After the above decision Atta Abbass 'Zaidii (Supra) appears that in the case of NAB V Bakhat Zameen

(CP

154212016 dated 26-08-2016\ a 3 member bench of the

Hon'ble supreme Court through a detailed and reasoned

judgment seemed to have reverted back to a more stricter in a NAB interpretation of what amounted to proionged delay caseforitamounttoahardshipcaseinthefollorvitrgternrsl NAB has "Through this petition' the Chairman' 'sought of bail granted to the "urrt"ti^tlot' respondent No'1 by the Peshawar High Court' Peshawar iis impugned order dated 03.03.2016,'iJt ft"""a in wilt-Petition No' 3447-

P 12015.

2.We have heard the arguments ofpetitioner learned Special pto"""'tot NAB on befrdt of the *a t.."'"JnsCfo' - t"spo''de''t No 1' The perusal 'of material ia"ea on record reveals that tf'" only nominated accused in r."po.,dtt't*Nolil" Reference }{"S 2015' under section 18(g)' read .with sectiori 1i"f "f the National Accountabilitv Ordinance, 1999 (hereinafter referred to as the "Ordinance of fOOO"l' submitted by the Director Judge' General, Nae tliot;' the Administrative Accountability Courts' KPK - Peshawar on

09.1'2015, ;herein on O4'O2"2O15 he has been as under:- . charged "Firstly that you in connivance with others papers of rent prepared ob l"i""t bogus starnp, three years ag.e"mettt" io' ^ period of I 1 with ft-om zooti to September 20 "o,,"n"t'"'i* Road' Peshawar M/s' Jan AIg""g""1-' Hotel Kohat or Rs' 2'43'71'7121' claiming d';;;;;"vment stayed only for four that trainetl it' ir''" "-a hotel monthly rgnt ol months "i'- t,r-'t actualcharges and that you Rs 5,O0,0Cr6)- including bus houses ln u""orn^oiuitd students at small rents and different areas of the city at amount of Rs' ' nominal 'thus -if"ff'opti"ted an 1,2;;i-' itr'tht head of accommodation' with your co- Secondly that you in connivance itrto (who'entered accused A1i Akbar, Younas Shah w

plea-bargain with the NAB Autho;ities) and Nasim jan (who became approver and was granted conditional pardon) also prepared bogus invoices of J&S Enierprises. Irshad Traders and Yasir Enterprises claiming expenditure of Rs' 1,39,62,O27 l- but you cannot .lustify the amount spent on these fake invoices that your liability .iter deducting the liability of your co-accused .comes to Rs. 1,18,67 ,723 I - in the head of procurement.

The vocational training part of the FRDP was outsourced by Project Director to you through Memorandum of Unclerstanding (MOUs) and amount was released in full to your account but you misappropriated f embezzled the fund and -caused a'iotal loss of Rs. 2,95,38,977 l- to the Government and you thereby . committed the offence of corruption and corru pt- practices within the meaning oi section 9(a)(vi) of the. National Accountabilily Ordinance, 1999 punishable-under section 10 oi the said Ordinance and schedule thereto and within mY cognizance'"

3.The plea for grant of bail on merits raised by '.espondeni No' 1 in his earlier Writ Petition 'No.'SS+S-e72014 was rejected by th9 High Court vide its order dated 28.4.2015, which is available 79 to 23 of the Court file and speaks for "iP"g."

itr"ft." O., 10.10,2015, another petition under Article 199 of the Constitution for grant of bail was -ou.d by respondent No'1 on the ground of ta.y ttr" learned Division Bench in the =i"t"toty Peshawar Higir Court, whiie adrnitting respondent ll". i t" bail*through the impugned order' noted down that the respondent No' l has remained in .""aay "1". e 75.9 2Ol4 and during14.this out period

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it pro"."rtion has only examined

*iiri"""", while during Ln months period .of"ol trial' respondent No.1 has obtained onlv slx Thus, he was entitled Ior grant of "a:i"."t"."ts.

Uu'iL o" the ground of statutory delay of over one was vear. as the oftence for which he was charged "not . punishable with death penalty'

4.Before revering -or to the facts of the case as ;;g"tJ" ;;Li otfrerwise in the proceedings of and the irrE lil"r before the Accountability cour.t Division -".i1" of the findings of the learned il;;; .;;";Jed in thJimpugned order'' Y: "':old the provisions of li;-;" make it clear ih"lt 497, CI.P.C' are not ars such applicable ;;; A; purpose of grant of bail to an accused "..1io" iI r"e .'r."ie._4:1*ilj..

However, in aPProPrra :|j, :iifi ll I. #,i 3 ;

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delay in the conclusion of trial, dependlng upon the facts and circumstanqes of each case ot its own merit, has been considered by the superior Courts on the yardstick of hardship vis-i-vis scheme of Articles 4 and 15 of the Constitution. Thus, lpso factol appllcation of principles for grant of bail embedded in section -ct.p.c, 497, including the provision of statutory delay, is devoid ofany legal force' '5. Reverting to the facts of the present case, we have noticed ihr.t th" 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 petitloner, through C.M.A. No.4807/2016, it is evident that after framing of charge on O4 .2.2075, ' from 06 2 20 1 5' . respon-dent No.1 has been instrumental in seeking adjournments on 1,6'12.2015, 25'2'2015' 06.4.20 1 5, 20 .6 .2015 , 13.7 .2O) 5, 2a 'B '2O 5 ' t 09.9.2015, 22.s.2015, 20.10.2015, 29'10'2015, 06.1i.2015, 19.11.2015, 01.12.2015, 12'12'2015' O2.1.2016, 27.1.2016, 18.2.2016 and 29 2'2016 (i.e. eighteen dates of hearing). Not only this, but .u"., ift.. grant of bail through the irnpugned 'order, he co-ntinued with sr-rch practice by seeking adjournments on 15.3.20 16,

i8.5.2016 and. 02'6.2016, while order sheets ol' subsequent dates are not available before us lt will nbt be out of context to mention here that even otherwise the practice of making mathematical calculations, for ascertaining the period of delay attributable to the ".i""f of pro"..rriior. or the accused for the purposehas I"-p"ti"g the period of statutory evendelay toi u..r. Ippto.,"a by this Court, as delay on few dates of hearing at the instance of an accused can be fatal for this purpose' that irrespective of the actual time wasted on More particularly in the cases- -where accused is being tried under the Ordinance "..oort.

1999, which is a special laur and specifically of its i"i" g-"rrt of bail to an accused by virtuereari as . 3 and 9(b), which respectivel-l' under:- " "".tiit Section 3:

6n-t."i"lons of this ordinance shall have effect .ro1-iif,"tr.,aing anything contained in any other law for the time being in force'"

Section 9lbl:

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zol "All offences under this Ordinance shall be non- bailable and, notwithstanding anything contained in section 426, 491, 497, 498 and 561A 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."

6 The above discussion clearly goes to show that grant of bail to respondent No'l through impugned order of the learned Division Bench of the Peshawar Hlgh Court, Peshawar is result of misreading of record of the proceedings before the NAB Court as well as erroneous understanding of relevant provisions of law in thls regard, Thus, mere fact that ln case an accused has remained in custody for a period of 13 months will not be sullicient io hold that it is a case of hardship within the parameters as defined by this Court in this regard in the various earlier pronounaements. For further guidance in Ihis regard, reference can be made to the cases of Khan Asfandvar Wali v.

Federa tion of Pakista4 (PLD 2OO1 SC 607l and Himesh Khan v' .Th e National Accountabilitv Bureau Lahore (2O1s SCMR lO92)'(bold added)

27.Thus, it appeared that the consideration s / factors to be considered in hardship cases in Atta Abbass Zaidl's case (Supra) had to a certain extent been overruled by the Hon'ble Supreme Court. In fact in the case of Syed Rashid Hussain Rizti V State (CP.D36l4ll6l by order dated 29-11-2016 (unreported) this court declined bail to a;rother of the accLlsecl in the same reference as Atta Abbas Zaidi's case (Supra) largely on account of the Surpreme Courts later ruling in NAB

V Bakhat Zameen (SuPra)'

28.Once again however foilowing NAB V Bakhat Zameen's now turned to case (Supra) the Supreme Court seems to have cases on the a broader interpretation of granting bail in NAB more in line grounds of hardship based on factors which 'are b-

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opposed to the with Attal; Abbass Zaidils case (Supraf as traditiona-l ground of many years in jail having been served in the near ald there being no prospect of the trial concluding future.

29.For example, in the following orders; bench of oRDER O3'O3'2O17 bY a 2 member the SuPteme Court' Reference No'31 16 "Petitioner who is facing Lahore when failed -of-20 to in Accountability courtitl' ..t ,r'," .o.r".""io, oI bail from t]re lower ontorum the :;;*; #;j;;;;; or thisassets court thererore :::il; ;;;;;" of the is disproportionate il"tffi;;;;;;" but unfortunatelv none .f the its ;-;;;;i" explaining them has been, read.in in jail has been correct perspective and that he awaits for one year yet the Reference conclusion.

appearing on

2.The learned Special Prosecutor many- as eight behalf of NAB contenila tr-l"t as that if month and witnesses have been "*tmlttta .a will or so is given to tfre f"fnS' the trial stand disputed the concluded' He, however' seriously the ieatn"d aSC ior the petitioner that """".""" "f assetsofthepetitioneiarenotindisproportionate . to his known assets' We have gone through the record carefull'v-

3.of learned ASC and considered the "'b'''i"""iot'" learned Special for the petitioner ""';;ii as the Prosecutor, NAB of the

4.Without entering into the merits case lest it prejudiceJ the st"nce of either of the petitioner the parties, the very fact that his-trial has 5Ji ro' Lt" v""' vet il: ffi;-ilcJictudea ffi il; despite there being. no -rigtttto say -speedy laose on his part' ut"af"G -trial 'rl'"L"'^ttl.i"""itrt of the a-ccused NAB when Section oarticularly in the ctst=- ofthat tr.ial. shall be ffi:;;J Neo P'o'1aes added) iI"""*a"a *rirrin io davs' (bo1d above' we t:rl::l.l-tn'' I?or rhe reasons discussed ' netition inLo appeal' t' and direct 'relearse o[ 'il:' ; ";'.' ;;; ;; ; : :ll "L'* :'j;,,H Tff i#'l J,""i'i: i:

the sum of ruPees ltve if-r" oI the trial Court' "uii"f^ttion q

2tt

30.As mentioned earlier and relied ,po, ty the petitioner unreported order of a 3 member bench of the Supreme Court in Civil Petitio n t7 lL7 Syed Rashid Hussain Rlzvi V .Chairman NAB dated l2-7 -2u.17 where at Para 5 it held as under:

t'A look at para-B 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 strong reason to treat the petitioner differently ' The fact that the petitioner has been in jail for triro years yet the ionclusion of his trial is not in sight would tilt in favour of grant rather than -refusal of bail" (bold added)

31, The significance of the above order is that it arose out of a case (Syed Rashid Hussain Rizvil whereby this court had set out in. full the detailed 3 member Bench judgment of the Supreme Court in NAB V Bakhat Zameen's case (Supra) and as such in passing the above order the 3 member Bench of the Hon'ble Supreme Court was well aware of the

NAB V Bakhat Zanneetr's case (Supra) and'as such appears tohavedeclinedtofollowitbasedontheparticula:.factsand circumstancesofthecase.Admittedlyapartofthebailwas basedontheruleofconsistencybuttheotherpartwas based on hardshiP.

Article 10

32.Perhaps this change in approach is guided by (A)'s requirement of an expeditious trial' the fact that the NAO

of cases within is special law whose object is speedy disposal the ground reality is ' fixed timeframes and the realization that there being so that in NAB cases due to their complexity' each ' with a separate many accused (often upwards of 1 0) tb t1

ZIZ

right of cross exannination o[ 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 in cases 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 lenient and humane approach in determining hardship cases in NAB cases based on the ground realities that these cases even after several 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 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 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 permit the State to lock

their accused up in jail for years on end without determining 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 as was held in the classic case of Riasat Ali

V

indefinitely seems to Ghulam Muhammed (PLD 1968 SC 353) which

Y

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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.citizen 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. lf such NAB trlals 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 b-v creating more accountability courts to deal with the heaqv work load so that 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 preambie 6jnd S. 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 the parti.cular facts and circumstances of each case and as such the Atta Abbas Zaidi (Supra)considerations/ factors may prove to be useful in making such determinations'

33.Thus, it would a-lmost seem that we are back to the Atta NAB cases for Abbas Zaidi (Supra) considerations/factors in main ones being the grant of bail on hardship grounds the the length of time spent in jail, whether any' .w delav has been

lc)

zt\ on the caused by the fault of the petitioner and based particular facts and circumstances of the case realistically and whether a how much ionger is the trial likeiy to conclude enable the direction to complete the within 6 months would trial to conclude.

34.lnthisrespectwewouldre-iteratethefollowingpara's 29 to 33:.

of Atta Abbas Zaidi's case (Supra) at Para's we would like to "2g Bellore parting with this ordcr. . observe tnat wfra? appears to be the most troubling only framed aspect o[ this case is' ihat the charge was on l6-O4-2ot6i'"' o"fy 4 months agoonly (and 10 months trtrc.tl[ t hc o after the o..."."f"tui ir," ietitioner) and "tt"Jtatd PW's have their evidence' There also '1 "" It may be' appears to be aiound 38 other co-accused' the other of as indicated;;;-il record' that some plea bargains co-accused ;;;; j!'"tirr ;; mav enter in-to number however *'"i i tely'to leave' a lery large separate ol *horn are likely [o,engage of co-accused j""iix"rv lawyers *r'i"ri ^ll to lead t<i a large number o[ fo' PW which is separate likely to l"";;"';;i;tttt"time consuming -"'^"hWith accused's "*it"-"fy lawyers being busy before superior courts' accused not strike s' illneSs being produlei"[t*- t'"tuay' lawycr's pO's on leave' the heavy work of accused t"a f^*V"*'

loads oI ii.r" i*"""tability . Courts' countles's

etc when miscellaneo#" "poll""ti""" to decide which has the all added togetfret 1!t'a to suggest a trial potentialto;;";;"'"necffsarilyprolongedandmav an expeditious . impinge "" ;;;;;;' o[iijil"^':,::::.1,.to and hence our trial under n io til the Constitution bail on tho groutrds decision i"t'gl""ipc,-t arrest "tove of hardshiP'

30.[n particulerr we have observed in -numerous that NAB cases, which have co-e b"fote this Court' (so.me of whom there are usually at least 10 accusqd ;;;"l;;uJy be"i'' custoiv) and it usuallv^takes rhe a.Jo,-rrrt^Uiiity Court around 4 Lo 6 months or,trial on

occasion even longer io a"ut with the pre 88 cr'PC before the charge ;;;;;;"; under sl87 and be framed fhr" "tt.' hardly bc callcd "r..t "r". justice espcci'tty Ot"it'g^in mind. thc exoediLiouS ::fii#;;,J;r ir'' p""'nu' or the NAo providing ror A ro (A) or the ::,:il;",;i;1",-'s.16 (a) Nao ^na be deemed, ro.,be a L;""1i*ii;;";rIJ rnalea could process belorc. thc,colrrts i"jir.. i" the Accountability to be completed withitt whereby trials which ^'" rn'"""cases' up to 5 ycars l"o 3O days are taking', ln some few r'rf the accused comolete with on ot:"o""iot' a - ' ;:#ffi- il.iinJ u"" during most of this perrod' v,./

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31, In our view in order to ensure expeditious trial o[ NAB cases before the Accountability Courts, as \l'as the intention of the NAO and the command of A lu(Al of the Constitution, the time has now come for tht: NRg to consider seriously the number of accused whom it is essential to be included in a reference as accused as opposed to witnesses, the number of PW's it is necessary- to call at trial (some of whom may be .given up during the course of trial), the number of Io"r..,".,t" whi& are required to be exhibited in order to prove its case to the required standard and better -^ar^g"-ent whereby PW's are present on each and every d-ate along with the required documents and IO's are present if required.

32.Likewise the Accountability Courts need for [o consider how they can best expedite trials through' .""*pf., resort to S.17 O NAO whereby novel methods shorten the usual procedural -uy i"' employedthetotrial foriralities bLfore can and even lor "ornm'tn"" shortening the duraLion ol the trial once the charge has been- framed provided that A 10 (A) ot the Constitution is not infringed. Early separation of trial the -from absconders should be considered' Starting evidence a fresh once an absconder is brought beforc the Court only seems to have the effectnot of un.r."e"sarily piolonging the trial which would o[ seem to be in consonance with the letter and spirit not S. t6 (a) NAO. Unnecessary adjournments should be aliowed. Could affidavits in evidence ol PW's be resorted to subject to cross examinal-ion so as to avoid u llng,flv examination in chiefl? The Accountabilitl' Cou.t".luage" also need to employ better and morc effi cient trial management'

33.Even the competent authorities may considcr creating additional accountability courts'expedite where necess;ry, in order to reduce backlogs and the triats under the NAO so that' accused do not languish behind bars for overly long periods of in time before their case is decided' The accused who are custody should not be made to. suffer prolonged of a imprisonment or be penalized further because NAO lack of capacity to deal with cases .under the (especially u'"--ti-'" at the end of a prolonged trial may be acquitted """'''"'d and every ac-cused is presumed view it is the to be innoceni-tit'iiL pto"" guiliy)' In our a situation oUtig^tio,'' crf *'" st"L to eniurJ that such 'isavoided'Jth"constitutionallyguarantt:edrights of its citizens are uP held''

35.Inthecasebeforeusthepetitionerhasbeeninjailfor2 for about 4 years and 3 months and he has been responsible delays in the proceedings' There are more thal 3O accused' at

least5witnessesyettobeexa]Tlinedandabatteryoflawyers

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for the accused to cross examine each PW with the last his witreess taking approximately 5 months alone to complete evidence in chief and cross examination and as such in our

view realisiically the trial is most likely to take a significant period of time to conclude. More importantly two of the other both co-accused having a similar role as the petitioner have been granted bail on hardship grounds one of which was

Court' based on the earlier reproduced order of the Supreme Thus, keeping in view the rule of consistency and the discretionary powers of this court to grant bail in appropriate cases including hardship cases the petitioner is hereby

granted bail on hardship grounds however due to the large

Atta Abbas loss caused to the exchequer (as with co-accused as a matter Zaidi which arises out of the same reference and solvent sureties of consistency) subject to him furnishing two million) and PR each in the,. sum of RS2'5 (two and a half of the Nazar of bonds in the like amount to the satisfaction his original this court. The petitioner shall also surrender MinistrY of passport to the Nazir of this Court Secretary not to issue the Interior Government of Pakistan is directed petitioner with any fresh or duplicate passport A copy of this lnterior for order shall be sent to secretary Ministry'of compliance. It is made clea-r that the NAB are free to move granting order if the this court for cancellation of this bail his behalf causes any petitioner or through anyone acting on delay in the- completion of the trial'

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CHIEF STICE