Mushtaq A. Qaiser (Petitioner) VS The State & Ors (Respondent)

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ConsL. Petiton No' D - 6841

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IN CUSTODY

IN THE HIGH COURT OF SINDH AT KARACHI

(C o nstitutio nal Juris dictio n )

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Constitution Petition No. l) - bN ' of 2079

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MUSHTAQ A QAISAR,

Son of Muhammad Shafi Muslim, Adult, Presentiy confined at the Central Prison, Karachi Pctitioner

VERSUS

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1 THE STATE

Through Chairman, National Accountability Bureau, Ataturk Avenue, G-5 / 2, Islamabad.

2 THE DIRECTOR GENERAL,

Accountability Bureau, Sindh, PRCS Buildins, 197 /5, I Dr. Daudpota Road, Karachi Cantonment Respondents

NAB REFERENCE NO.22 OF

20 17 PENDING BEFORE THE

NAB COURT NO.I KARACHI

CONSTITUTION PETITION UNDER

ARTICLE 199 OF THE TSLAMIC REPUBLTC

OF PAKISTAN, 1973

The Petitioner most respectfully submits as uncler: -

FACTS

1 That the Petitioner is aged about 60 a 1aw abiding citizen, having unblemished record of his entire career. The -t' Petitioner has remained as Deputy Manager (Distribution in NFML Headquarter Lahore).

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IN THE HIGH COURT OF SINDH AT KARACHI

3t+ Constrtr-rtron PL.trtuon No. i 2o'L0 Shaukatullah S/o. Gullu Khan.

Muslim. adult, Originally R.'o Dera lsnrail l(han, prcscnaly at l<ar.rcl]L. " I I r"'

VER5U5

Thc Statc / Fedcratron through Chairman N.A.B..

N.A.B. Headquarter lslamabad & through Director General N.A B. PRCS Buildiog.

1i715. Dr Daudpora Road l(arachi Re5ponden15

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PETITION UNDER ARTICLE I99 OF THE CONSTITUTION

OF ISIAMIC REPUBLIC OF PAKISTAN I973.

It is respectfully submjtted on behalf of the Petitroner as under: - I That namc of f ha Pcirirortc. has llcen added in rclation to N A B Refer€nce No. 22 -, 201 / Rc State Vs irnanruddrn Marwat and otncrs, pend,ng tnal before N A B Court No.ll l(arachr rs frljng the tnstant petrtran rn pcrson and rntcr-alra pcirlroncr ala,m\ to llc.rr cdLrcatcci oual,frccl and rcspcctalll(' person so also harJs from a hrghly rcspertable Famrly

2.That rn nlrtshell Ref€rcnce No. 22 i 2017 was fileci pursuant to .t compl€fron of lnvc5tiatilron (onCLrclc(i by l\,4r f"4uhammad yuntr5 l(h.rn.

Deputy Drrector , 5lO llW l), whr(h ri basii of complaint vide Letter No. NABI(2O I 508 | 8A4493 ' 1 I ./CO.C / NAB iKl ./ 2017 /ZOO2 darcci I6'" l\4,ry

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IN THE HIGH COURT OF S INDH AT KARACHI

rlerert!

' Mr, lustice Mohammad Karinr Khsn Agha Mt Muhammad Saleem Iessar.

Const. Petition No.D-6899 of 2019.

Y Petitioner Mushtaq A. Qaisar S/ o. Muhamrnacl Shaii through Mr. Shahnawaz A1'oub I)alrri, Advocate,

Respondents Chairman NAB through M/s. Akram Javetl and R.D. Kalhoro, Special Prosecutors NAB along with Mr. Bilal Khan LO.

Const. Petition No.D-317 of 2020.

Petitioner Shaukatullah S/ o. Gullu Khan through Mr Muhammati Azeem, A(ivocate.

Respondents Chairman NAB through M/s. Akrarn .lavecl antl I{.D. Kalhoro, Special I'rosecutors NAIJ along with Mr. Bilal Khan l.O.

Date of hearing: 2s.02.2020 Date of announcement: 10.03.2020

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ORDER

Mohammad Karim Khan Agha, J.- Petitioners Mushtacl A. Qaisar S/tr Muhammad Shafi and Shaukatullah S/o. Cullu Khan have nrovetl tht'st' petitions for post.arrest bail on hartiship grountls. Thev were both hookctl in NAB Re(erence No.22 of 2017 Ior acts of corruPtion and corrupt practices in essence relating to misappropriation and embezzlement of urea worth millions of rupees which caused a massive Ioss to thc exchequer and illegally benefitted others which reference is proceeding before the accountability courts in Karachi.

2.Learned counsel for both the petitioner's have contended that they have been in custody for 2 years antl 4 months and tu'o t'ears anLl 7 + months respectively and that their trial is no where in sight of conclusior.r and as such they should be granted bail on harciship grouncls. In support.

of their contentions they have placecl reliance on the case oi Tallat Ishaq v. National Accountability Bureau (PLD 2019 Suprerne Court 112), Sharieel Inam Memon v. National Accountability Bureau (SBLR 2019 Sindh 1499), Shahid Umar v. Chairman NAB and 2 others (2t)19 P' ( t''l'f 370), Syed Manzar Abbas v. National Accountability Bureau, through Director General (2019 MLD 581) and all unreporteli Judgmcnt elt'citl':rl by lslamabad High Court in W.P. No.416672019, Muhammad Bilal Y Sheikh v, National Accountability Bureau through its Chairman, Islamabad and another.

3.On the other hand learned Special plosecutt:r NAts h.rs ol.rl.rosr'11 the grant of bail to both the petitioners on hardship grouncls as accorlling to him they have not met the legal requirements. In support of his contentions he has placed reliance on Tallat Ishaq v. National Accountability Bureau (PLD 2019 Supreme Court 112)

4.We have heard the parties, carefully reviewed the record and consiciered the relevant case law including that cited at the bar.

5.Both the petitioners have been in custody for 2 years and 4 motrths and two years and 7 months respectivelv. 'I he latest progress rr-'port Irottr / the trial court reveals that no delay has been caused by cither ()f the petitioners or counsel acting on their behalf. The progress report also reveals that on the arrest of one of the abscondirrg accused the charge w.rs recently re{ramed and evidence is now being lead afresh. So far oulv tw<r out of the proposed 72 prosecution witnesses(PW's) have given eviclc'nce which leaves 70 more PW's to give evidence. This in our view will take at least one year and probabll, a lot longer especiallv as we have lpen informed that the concerned accountability court has been vacant for ovt'r 5 months and as such little, if an1,, e,''iclence is l.leing rt'cortleil irr th.rt reference which has resulted in the trial virtually grinding to a halt dut, to no fault on the part of the accused. Rather the delav in filing the vacant posts falls squarely on the shoulders of the Federal Government who instead oI ensuring the right to an expeditious trial under Article 10 (A) of the Constitution and per the preamble to the Nati()nal Accountabilitv -t- Ordinance 1999 (NAO) and 5.16 (a) NAO for reasons best known to itself seems to be unreasonably delaying the appointment of accountabilitv ,y

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court iudges. It is well known that bail cannot be withheld as a punishment and certainly the two petitioners cannot be blamecl for tl.re lack of progtess in the trial simply because the State is failing to complv with its obligation to speedily prosecute them.

6.With regard to the case of Tallat Ishaq (Supra) which N Ats has cited in its objection to granting bail. No doubt Tallat Ishaq,s case (Supra)

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has made the grant of bail more stringe"nt on hardship grounds but it has not excluded it and it is allowed in exceptional circumstances at the descretion of the court. In our view for the reasons discussetl above where the petitioners have each spent in the region of two antl a half 1.ear.s in jail and no delay has been caused on either their or their lawyers account, that 70 PW's remain to be examined, cross examined antl potentiallv re examined, 5.342 Statements neetl to be recorded ancl potentially r.lefenst, evidence lead and the court has remained vacant for over 5 rnonths anrJ there is no chance of the trial being completecl within the foreseeable future we consider that both the petitioners whilst exercisirlg ()ur discretion under Article 199 of the Constitution have made out a casc f()r the grant of bail on hardship grounds.

7.Thus, for the reasons discussed above petitioners Mushtaq A. I Qaisar and Shaukatullah are both granted post arrest bail on hardship grounds subject to them each furnishing a solvent surety in the amount of Rs. one million (ten lacs) each ancl pR in the Iike amount to the satisfaction of the Nazir of this court.

8 The above petitions stand disposed of in the above terms

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