Waseem Iqbal (Petitioner) VS The Chairman NAB and Ors (Respondent)

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IN THE HIGH COURT OF SINDH, I{ARACHI

Before: -

Mr. Justice Mohammed Karim Khan Agha,;J.

C.P. No.D-756 I of 2017 Waseem Iqbal V Chairman NAB & others. l

Waseem Iqbal S/o Shaikli Nooruddin (the petitioner). :

Through M/s. Shoukat Hayat and Abdul Hafeez, Advocales.

Counsel for the Respondents.

Mr. Muhammad Alta-f, Special Prosecutor, NAB.

Date of Hearing: 19-12-2017

Date of Order: 28-t2-20t7

ORDER

Moharnmed Karim Khan Agha. J. By this order, we propose to dispose of the above petition which has been filed and plead by learned counsel for the petitioner (Waseem Iqbal) for seeking post arrest bail in Referenbe No.27 of 2O15 (State v. Fareed Ahmed Yousafanif, solely on the grounds of hardship coupled with the rule of consistency.

2.The brief facts of the case are that the petitioner was charged along with 39 other co-accused. il National Accountability Bureau (NAB) referen ce No.27 /2015 for acts of corruption and corrupt practices under S.9 of the National Accountability Bureau Ordinance 1999 (NAO) in connection

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with the Lines Area Redevelopment Project (LARP) which acts of corruption caused a loss of millions of rupees to the ' lll

3.The role which has been assign set out in the Reference No.27 of 20 Waseem Iqbal/Petitioner, DePutY (accused No.6) has P rocessed all the responsibility to check aPProved leases of these allotments of 32 sq.

departure to aPProved Master Plan sq. yard piots carved out from th

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kitty on account of plot # MC-06. Thu

been caused to the

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: :sgl collusion and connivance with the other oflicial co-accused in order to favour the benefi ciar5r co-accused.

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5 Learned cortiisel .fijr the petitioner submitted lhat the petitioner was arre'stred;on 15.06.2015 and since then the petitioner is confihed'in jail and the case has not been concluded till this date'despite the lapse of almost 2 years and 6 months. He further submitted that the delay' in conclusion of the trial is'not on the part of the petitioner or

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his counsel and as such he was entitled to bail on hardship grounds. He aiso relidd on the rule of consistency whereby his co-accused Shahid Umar who had played a similar.role as him in the alleged offense had been granted post, arrest bail on similar grounds by this court vide its order dated. 12 10- 2Ol7 in the case of Shahtd Umar V Chairman NAB C.P. No, J D-5369 ol 2OL7 and ds such he was entitled to equal treatment based on the rule of consistency and as such the petitioner shouid be granted post arrest bail. Apart from Shahid Umar's case (supra) he also placed reliance .on the diary sheets throughout his period of incarceration :to show that no delay had been caused on his part' '

6.On the other hand, learned Speciai Prosecutor, 'NAB vehemently opposed the grant of bail on the ground of hardship and the rule of consistency as the delay 1n J proceeding and deciding the case was pureiy on the part of the petitioner as reflected from the order sheets submitted by the petitioner himself and his case was not on the same footing as Shahid Umar's case (Supra) and as such the l/-

petitioner was not entitled for the grant of ground and/or the rule of consisten petition for bail should be dismissed.

contentions he placed'rQdance on State (2009 SCMR 133).

7.We have heard the ,Parties, consi

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the case law cited uy tfr..rl at the bar.

8.In recent times.as Pointed out (Supra) in hardship cases the superior consider the factors laid down in the zaidi Y cha,irman NAg (seLn zofi Lol (a) how long the petitioner has been tn 3 delay has been caused by the petitioner. or f his behalf and (c) whether the conclu i I sight with each case being

facts and circumstances.

petitioner had been in jail for 2 yeats the petitioner those acting on were more than 30 accused, at least 5 examined and a battery of lawYers for I examine each PW as such rn our trial was most lik conclude. Thus we

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10.In the later case of C.P. No.D-231O'of 2O17 Tahir Jameel Durrani V NAB dated O1-1I-2O17 luhich arose out of , the same reference **,.1,f," petitioner had relied on hardship 't"t 1I grounds and the .uld;of consistency (Shahidi Omarrs case (Supra) we rejected the.petitioners petition for post arrest bail for the following reasorts as set out in para's 11 to 14 of the aforesaid order which afe reproduced as under;

1 l. We consider that the instant case rs distinguishabte 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 tlie reference in the commission of the crime is much greater than thd other petitioners in the same case who had already been granted bail on the grounds of hardship. Furthermore in both the other cases,'Syed Rashid Hussain Riztri (supra) and Shahid Umer - (supra) the petitioners had both spent well oter two years in iail wher€as in this case the petitioner has only served ti montfid in jail. Most significantly a review of the order sheets from the date on which the petitioner's bail was last declined on hardship grounds i.e. diary -+ sheets between 22.3.2017 to 07.O8.2O17 ' being approximately four months which is roughly the period the court direct€d the trial to be concluded reveal that the reference cflme up for hearing 11 times and on O6 occasions (irter 5O%) the defense counsel for the petitioner was i called absent. In ouri view 'such l: a casual attitude by the defense counsel of; the petitioner indicates that he had no genuine desire to proceed with the case and was simply passing time until the, time given in the direction to complete the trial by the High Court expired sq that he could again appl5r forl:bail on hardship grounds with the high possibility of such bail being granted' i ., ',., -,

12.We consider that such tactic on thel part of :tlre petitioner was a deliberate attempt to abuse,the lconcept of the grant of bail on hardship grounds::as":wdll' as rto defeat lhe directions of the court to, complbte the case within a timety manner and we considerthat whbn exercising our discretion that such conduct cannot be ignored and goes against the petitioner.

13.We also obsgrve that since the above referred two earlier cases Syed Rashid Hussain Rivzi (supra) and Shahid Umer (supra) there are no\M only"17 accused persons out of $3'ras a number of earl.ier accused have entered into plea bargains and only 4 PW's remain to be, a

. :r,l :i ii,,ll: ,,, I ,:,irgq examined and as such there is a greater''possibility.gf the trial being concluded in the near future. ulith an appropriate direction given to the trial court to complete the case within a givOn period ol time. We.also note frorn the order sheets ,that there appears to be a :stratery amongst the nulnefobs accused to deliberately delay the triai on one pretext'or another which also needs to be discouraged I

14.Thus, for ail the reasons mentioned;above we find the case of the petitioner distinguishable from the,cases of Syed Rashid Hussain Rizvi (Supra) and Shahid Umer (supra) whioh aithough arising out of the same reference are distinguishable .on, arnongst others, the following grounds and as such the rule ol consistency is not applicable:

(a)That the petitioner played a far greater:role in the offence .which caused colossal loss ' to th.'e State. :

(b). That theletitioner has spent 17 months in jail being 10 m.qnths less than the other co-accused who were grAnted bail on hardship grounds.

(c). That si4ce the date ol the direction of this court to the trial court to complete the trial within a period of three months on more thah half the dates in which the reference q/as called the petitioner's counsel remained absent which in { our view was a deliberate tactic on the part of the petitioner to enable the petitioner to liie another petition on hardship grounds within a short period of time and to defeat the directions to conclude the trial given by this Court to the Accountability Court within a three month period.

(d). That now there are only 17 co-accused and four PW's left to be examined and the conclusion

11.We shall now turn to the case of the petitioner in terms of our three pronged test all of which factors mtst be:pres0nt to qualify for hardship and in this case the rule of consistenQy I l'

based on Shahid Umar's case (Supra):

(a)the petitioner (Waseem Iqbal) has served around 2 years and 6 months in jail which in, oirr view would prima facie qualifjr him for bail on hardship grounds'

(b)He has however, after a careful review of the order sheets, been responsible either through hiinself or

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,ggf his counsel for a minimurn of 21 pelfJs,1it ,ih,9 proceedings not including hearings when his couflsel *as ab"e,it but the case-could not proceed'pn other grounds. When we consider that the: reference has been cailed for hearing BB times:ovqf,,his peiiod in jail responsible f9r r^ngfe -tnanit appearso-thht he has been 2O6k of the 'total delay in the conclusion ot the trial and tha!.he has been instrumental in a-9lai1ing the trial and thus he would neither 'qualify: forl bail o" n.tJtftlp gqounds when this factor ls consideleld nor would hisrtese be on the same footing as that ot t Shahid omai\SuPra) :. ; 1,

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(c)with regard to wlrether fhl conclusion of the trial is within sight wer observe that a-ll the PW's hiave now been examined ,(as'opposed to 4 PW's left to be examined in Shahid Llmar's casp (Supra). That the IO has completed his exalninatiop i" and .on the last date of 'hearingliall':the "ti"f counsdl (including thei petitioaer]s defense counsel) sought an adjournment so yet arrother delay was caused the pdtiiioner;ryhosp ""1,t "'p*i "i counsel could,have cross examined the,IO';if: he sQ choose to ' do so but instead reques!9d1;tr''an adjournment along with the other defense 99gnse.l t<1 p."p*" thelr cross examination for which they pleq wanted more than 2 days to prepare' That after ' there aie only: now bargains by the beneficiaries

about 15 oppos"a 1o 3g'lir'r'i Slaahi + "o-.""r".d ' Umar's case (Supra)) remaining, . ,t; '';'';i''1::;'ir ': rl' ii:,:1, l !1 : ; l, .l,l:

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(d)The order sheets reveal that the trial;,i:srnow1ry9uilq very quickly and is being heard regularlli,An.d '*:=o adjouinments, if any, are being- cauiipd 'by Ee^ J"i".,"" and thus in-our view the,';iorqpletionlof the trial is within sight and sincolit''is'm-owing expeditiously .now tiere is no r-easoa',',#'hy it cainot be completed within 6 weeks of thef date of this order providedrthat the iccube:d.tdo l:t cause any delay, It is also note worthy: that:the petitioner id one of the main accused, the loss lto:the !*"h"qr", is substantial and his post'"arrdqtlbqil was previously declined by this court on rnefits:lir I li ,1i ' ,

12.It thus appears that the case of the petitioner"'r:Waseem :: t':'"1. '-' i'' "r ''lli

Iqbal is more on the same looting as the caqe oflTahir Jlmeef ( I I' t'l'; I

Durrani (Supra) whose b'ail was rejected by thisr lcotrrt whilst r l. ,

relying on hardship grounds and the rule of corisi$tency l/1 YLa

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13.Additionally, we also have to take into account that the trial is likely to be lbmpleted shortly and there are serious allegations against the petitioner. Furthermore, the Hon'ble Supreme Court in s[ch circumstances has generally not approved ol the grantlng of bail. In this respect reliance is . l^ placed on the case-of'Rehmatullah V State (2011 SCMR t ,l33?

1332) where ar P. it was held as under:

"Heard. file petitioner was granted bail on 2L.L]-.2OOb, which was cancelled by the learned , High Court on L9.3.2OO9, when accordin! to the order itself the trial was at the verge "{l conclusion. Learned Additional Prosecutcil-General stated that now only one or two witnesses are yet to be recorded. The courts sh{uld not grant or cancel bail when the trial is in.progress and Proper course for the courts in such a situation would be to direct the learndd trial court to conclude the trial of the case.,within specified period. Reference may be .riiade to Haji Mian Abdul Ralique v. Riaz ud Din and another (2OO8 SCMR 1206). We + find th.at the impugned order was passed in violation bf ti'r" iu*', therefore, *" subscribe "rr,.roi to it. In view whereof, we are persuaded to al'low this petiti.on and direct the learned trial court to conclude the trial ol the case expeditiously.'t (bold added) :

14.The case in hand is now proceeding expeditiously and is likely to conclude shortly provided that the accused do not cause any further. unnecessary delay, as the IO has now recorded his evidence and as such this case cart be dealt with b-v giving appropriate directions to the trial court. "

15.Thus, based on the above discussion/ reasons, we are not inclined to exercise our discretionary jurisdiction to grant post arrest bail to the petitioner on the grbunds of hardqhip and the rule of consistency, as his case is distinguishable from those which he relied upon, and as such the petition for post arrest bail is dismissed and the trial court is directed to h

complete the triai within 6 r