Tahir Jamil Durrani (Petitioner) VS Chairman NAB and Ors (Respondent)

t ,'l I cl

IN TH.E HIGH COURT OF SINDH, KARACHI

Before:- Mr. Justrce Ahmed Ah M. Shaikh, C.J.

Mr. Justice Mohammed l(arim Khan Agha, J

C.P. No.D-231O of 2017 Tahir Jameel Durrani V NAB through its Chairman & another.

through Mr. Raj Ali Wahid Kunwar, Advocate.

Counsel for the Resoondents.

I

Mr. Muhammad Altaf, Specral Prosecutor, NAB.

Dates of Hearing: 22.Og .2O 17 .

Date of Order: Ol.ll.2077

. ORDER

Mohammed Karim Khan Aeha, J. The petrtroner seeks post arrest bail.in Reference No.27 of 2015 (State v. Fareed Ahmed Yousufani).

2.The prosecution case as alleged ln the.Reference No.27 of 2015 are that the rnvestigatron reveals that Tahir Jameel Durranr, Ex-Project Director LARP (accused No,2)/petitioner was involved rn rilegal bifurcation of 32 sq. yard plots for Plot No.C-2/9, measunng 1333 sq. yds. arrd illegally allotted 40 plots of 32'sq. yards each to fictitious a-llottees in the garkr of hardship cases through forged/ maleuvered note sheet containing. fake/ fictitious srgnatures of the then DCO / Administrator KMC in sector 1 Lines Area which was never 1n exlstence Investigation further reveals that Sindh Dtsposal of Urban Land Ordinance 2OO2 specifies that, "...no plot or flat shall be disposed of except by open public auction at a price not less than the market price". The area destgned as C2 admeasuring 7.024 sq. yards in the approved Master

V-7

? t.\ ,, t>

Plan of LARP was allotted at throwaway price of rs.2O0 per sq' yard in the shape of32 sq. yard plots instead of open auction at the minimum reserve price of Rs.50,00O/- per sq. yard against the rules to numerous beneliciaqr accused persons and resultantly caused a huge loss of Rs.363,300,000/' to the government exchequer.

3.l,earned counsel for the petitioner expressly only pressed the petition on the grounds of hardship. According to learned counsel the petitioner has been approximately 17 months in jail and the last time he had applied for bail on hardship grounds it had been declined by this court vide order dated 31.03.2017 passed in CP No.D-5792, 3177 and 6290 of 2016, whereby this court in declining the post arrest bail of the petitioner on hardship grounds had directed that the trial be completed within three months of the date of the.

order and since the tria-l had not yet been completed as per court directions and its completion was not likely in the foreseeable future, the petitioner should be granted bail on the ground of hardship. According to learned counsel no delay had been caused by him in completing the trial and

I

that co-accused Rashid Hussain Rizvi had also been granted bail on hardship grounds by the Hon'ble Supreme Court in Civil Petitioh No.17 of 2017 (Syed Rashld Hussain Rizvl v'

Chairman NAB) dated 12.07.2017 and as such he should also based on rule of consistency be granted bail on hardship

grounds.

v2

3le

4.Learned counsel for the NAB vehemently opposed the grant of bail on hardship grounds since the petitioner had only been in jail for approximately 17 months, that the crime was very serious in nature which has caused a huge loss to tJre government exchequer and that the trial wqs now close to completion as only four witnesses remained to be examined and that there were now only 17 accused left in the Reference out of original 39 accused persons which meant that the trial could be completed soon if another direction was given by this l

I

court in orde. to expedite the case. He pointed out that.

I

failure to comply with a direction of a High Court to conciude the matter within a given period of time did not amount to a fresh ground for appiying for bai1. In this respect, he relied on Nisar Ahmed v. The State & otLers (PLD 2016 S C' l1) and Amir Masih v. The State & another (2013 SCMR 15241' He further pointed out that since his bail was rejected by this court on hardship ground by order dated 31'3'2017 the petitioner had been responsible for many of ihe delays in the completion of the trial and as such for all the above reasons the petitioner was not entitled for the grant of bail on the ground of hardshiP.

5, We have heard the parties, considered the record and the case law cited by them at the bar'

This court in tlie recent case of Shahid Umer v' The

Chairman NAB CP No.D-5369 of 2Ol7 by order dated l in- l2.lo.2Ol7 (unreported) had gone into considerable detail I with under considering how hardship cases ought to be dealt w

I

7 :g r=l

the NAO and discussed the most recent authorities on the issue. The aJoresaid case which arose out of the same reference had granted the petitioner Shahid Umer bail on the grounds of hardship based on the recent Hon'ble Supreme Court's decision in Syed Rashid Hussain Rizvl's case (Supra) and the particular facts and circumstances of that

CASC

7.We would reiterate that the grant of bail on hardship ground is for the court to determine by exercising its discretion rather than of right as in the case of statutory bail rtl s 497 Cr.P.C.

8.Firstly we find that non-compliance of a direction given by the High Court to a trial court to conclude a trial within a given period of time may not o.t it" o*t, be a fresh ground for grant of bail. In this respect reliance is placed on the case of on Nisar Ahmed v. The State & others (PLD 2016 S'C' 11) which held as under at para-4 (P. 13)'

"4. We have scalned the material placed on record and are unable to subscribe to such submissions of the learned ASC. Neither non-compiiance of the directions issued to the trial Court to conclude the trial expeditiously or within some specified time can be consid"."d valid ground for grant of bail to an accused, being a-lien to the provisions of section 497, C:.P.C., nor filing of direct complain-t *itl hu.rr" any bearing as regards earlier bail finality' refusing orders, which have attained -some u.,less fresh ground could be shown by the petitioner for considlration of his request for grant of Uuit afresh, which is lacking in the present case".

g. On this ground alone the petition could have been dismissedbutwehavea]sointheinterestsofjusticeandin ld- I i

I

,-t

our discretionar5z jurisdiction considered whether this ground could ' amount to hardship especially as the rule of consistency has been relied upon which appears to be a new ground.

10.We have also observed that the order relied upon by the petitioner in the case of Syed Rashid Hussain Rizvi (Supra) dated. 72.7.2017 mainly granted bail because the petitioner's role in the NAB reference was on a similar footing to anottrer co-accused who had already been granted bail in the same reference and that the petitioner had already served 2 years in jail and the failure in completing the trial was through no fault of the petitioner and the conclusion of his trial was not in sight which would tilt the matter in his favour.

11 . We consider that the instant case is distinguishable from the case of Syed Rashid Hussain Rizvi (supra) and Shahid Umer (supra). This is because the petitioner's role as mentioned in paragraph 4 of the reference in the commission of the crime is much greater than the other petitioners in the sarne case who had already been granted bail on the grounds of hardship. Furthermore in both the other cases, Syed 'Umer Rashid Hussain Rizvl (supra) and Shahid (supra) the petitioners had both spent well over two years in jail whereas in this case the petitioner has only served 17 months in jaii' Most significantly d. review of the order sheets from the date on which'the petitioner's bail was last declined on hardqhip grounds i.e. diary sheets betwee n 22.3.2d17 to 07.O8.2O17 being approximately four months which is roughly the perlod

P'

'3r1

the the court directed the trial to be concluded reveal that I reference came uP fo5 hearing 1 1 times aqd on O6

occasions (over 50%) the defense counsel for the

petitioner was called absent' In our view such a casual indicates that attitude by the defense counsel of the petitioner he had no genuine desire to proceed with the tt"" u"i *'" the direction to simply passing time until the time given in the trial by the High Court expired so that he could complete

again apply for bail on hardship grounds with the high

possibility of such bail being granted' part of the

12.We consider that such tactic on the the concept of petitioner was a deliberate attempt to abuse well as to defeat the the grant of bail on hardship grounds as within a timely directions of the court to complete the case our discretion ma-nner and we consider that when exercising l thatsuchconductcannotbeignoredandgoesagainstthe petitioner.

two earlier

13.We a,1so observe that since the above referred (supra) and Shahid Umer cases Syed Rashid Hussain Rivzl persons out of 33 as a (supra) there are now only 17 accused into plea bargains number of earlier accused have entered and as such there is and only 4 PW's remain to be examined concluded in the near a greater possibility of the trial being given to the trial court to.

future with an appropriate direction period of time' We alio note complete the case within a given appears to be a stratery from the order sheets that there k-?

ob 3Zb

amongst the numerous accused to deliberately delay the trial

on one pretext or another which also needs to be discouraged'

14.Thus, for all the reasons mentioned above we find the case of tie petitioner distinguish able ftorn the cases of Syed

Rashid Hussain Rizvi (Supra) and Shahid Umer (supra) which although arising out of t1-re same reference are distinguishable on, amongst others, the following grounds and as such the rule of consistency is not applicable:

(a)That the petitioner played a. far gteater role.in the offence which caused colossal loss to the State.

(b). That the petitioner has spent 17 months in jail iJi.rg f o *o.rth" less than the other co-accused ",""t" granted bail on hardship grounds' *f-ro

(c). That since the date of the direction of this cou.t to the trial court to complete the trial w-ithin p".f"a of th."" months on more than half the "J.i." in which the reference was called . the o.iitior.ur'" counsel remained absentpart wlrich in a deliberate tactic on the of the

o"ii,io.r"t to enable the petitioner to file another ;;i;;;;" ;ardship gto"'d" within a short period conclude the i"iii" ""a to a.r""t Ih" dit"ttiotts toAccountability ,riJ^ gi""" by this Court td the Couriwithin , th."" month Period' (ct). That now there are only I 7 co-accused. and iour PW's left to be examined and the concluslon of the trial is within sight'

15.Thirsinourdiscretionbasedontheparticularfactsand circumstances of this case we herebY dismiss the bail and the rule of application on the grounds of hardship arld simultaneously direct the trial court to consistencY basis and not adjourn proceed with the case on a day to day- the trial within the trial on any flimsy ground and complete It being ^uOt four months from the date of this order' -tt"* r,

-3rl that if either the petitioner or counsel for the petitioner is called absent on any dates or seeks an adjournment either singly or along with other defense counsel when the reference is ca-lled for hearing this will adversely eiffect any prospect of the petitioner being granted bail on the ground of hardship or any ground if a new ground arises and he applies again on this ground as in this case the new ground was the rule of consistency not failing to complete the trial within the time given in- earlier directions of this court which as referred to above in Nisar Ahmed's case (Supra) does not constitute a new ground. It being observed that generally speaking hardship cannot be pressed into service a second time as a new ground as was held recently by the $upreme Court in the case of Malik Naveed Khan V DG NAB (unreported) dated 30-03-2016 as referred to in the case of Saifullah V State (PLD 2Ol7 IHC P. i43) which fully reviewed the law of b'ail on the grounds of deiay in NAB cases ' The office shall immediately transmit a copy of this order to the concerned Accountability Court for complianc"

I

I

, -,1 -"r

M

JUD06

r i'r\r i cHltrF;usdlcn