Iqbal Ahmed Bablani (Petitioner) VS Fed. of Pakistan and Others (Respondent)

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CERTIFICATE OF THE COU RT IN REGARD TO REPORTING

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HIGH COURT OF SINDH

Composition of Bench: S-B-ID. B

Mr. Justice Mohammad Karim Khan Agha, M-.' .J -r -t.. Z--J6"f^ ali 3,*y Date(s) of Hearingi :.; ' it ' t f Decideon: a; - l2 -20L9

(a)Judgment approved for reporting Yes v'/

CERTIFICATE

Certified that the judgment",/order is based upon or enunciates a principle of Iaw */ decides a question of law which is of first impression / distinguishes / over- rules / reverses / explains a previous decision.

* Strike out whichever is not applicable

NOTE (i) This slip is only to be used when some action is to be taken.

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(iii)Reader must ask the.iudge writing the lud8ment whether the Judgment is approved for reporting

(iv)Those directions which are not to be used should be deleted.

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]N THE }{IGH COURT OF- SINDH AT I(ARA.CHI

(t.nstitution Petitic'n No. r-6b\r ro, n

i.tb;rl Ahmcd Babla[i S/o Sher \'luhammad Bahlani. ]Vuslinl I .\Jult, Residenr of H-26. Karim Plaza, Gulshrur e lqbal Dlerck-14 Nenr Cilic Center Karachi Presemll Contined A.[ ( (nlral Pri\\rn. Kamchi .......... l'.titi(r ur

l:ederatiorl of Pakistan Ihrou8i Secret?tt)' Nlinistry of Law, .lustice add Parliamenrary Affalrs (iovemmenl oi Pakistan lslamabad.

I lhe Chairrnan.

Natic,nal r\ccounrabiliry Bureau (NAB) (i-5,'2. A A(a Turk .{vcnue Islamab.td.

Director (icnerrl, National Accountability Bureau (NAB)

19.l,iaquat Barracks Shara-e-Fai$sl Karachi Respor,dcnts

('ONSI'lTtil lO)i PEI ITlON trlDI-R;\R] l(rl-l l99 ol- ( ONSl'I'I'TI'TION OF PAKIS AN I9?.], TIIE (1)NSTJIt ]U oN.{I- Ifrt rEn or, r,rt L ttx Dlllt ,.,,-.,r'rtoi\',t L ..lccot,l'r,lnt t,tt t' B tltr u,r t oRulNANClt 191)9

ctfulll Shcwrth.

t [he Petilioner above-nanled most rcsDcclluilr subn,its as undct fhxt thc I'ctilioner is a law-abiding citizen. Ile remai .d on the post ol Secretary o[ l radsport (tlSP-20) Golernmenr of Si dh. fronr AugrNt 2010 to 23'0 June 20111 llncl rherealler he go1 transfened I'rom the said post, \'ide a notification. dated: 23.06.2()ll. rrhich rvas issued by Go\cnulr!'nt ol Sindh- (Copy ofnolification Dat.d:23-06-2011 is anncxed hcrewilh end msrked as "A") : lhal the Director Geneal National .AccouDtabiljty Llureau, i.c.,the Rcspondent No. I tjled : referencc No. 0l of20l6 onder ssction i8 (g). read with scclion !4 (b) olthe NAB judge. Accountabilily Courts. Sindh al Karaclii, '-)rdirance, hcfirre the Administrative +ainst thc Petitioner/ Accused No. l, and 5 others, which is pe,nding bclbre th,i .t.countahilitl ('oun Il. at Karachi.

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IN THE IIIGH COURT OF SINDH AT KARACHI

Pregent:

Mr.listice !\Loh\tflfid.l Kttrit Khatl Agha Mr.lustice Znlliqot Ali Siiei.

C.P. No.D-6361/2019

Iqbal,Ahrnetl llablani

Fcderation ot Pakistatr & othels

Date of healing: 15. r1.2019

Datc of orller 05.12.2019

Petitione( fhrou,lh N{r. Shahab Osto Ad!ocate Respondents; lhr,.rulh lvlr Ri.tz ALlm sPccrdl Pr('secuior NAB J assisted bv lO Qamar Abbas.

r)R Dr,I{

Mohammed Karim Khan Agha. I. BY this order we ProPose to disPose of this petition whereby the Petitioner (lqbal Ahmed Bablani) has applied for Post anesl bail in National Accountability Bureau (NAB) Referen(e No'1 of 2016 The State

Verse6 Iqbal Bablani and otheE rvhere he alorrg with 5 other co_accused have becn accused of corruPtion and corruPt Practices under 59 of the National Accountabitit)' ()rrlinance 1999 (NAO).Earlier by order ol this Court dalerl 23-05-2016 the ad interim Ple arlest bail oi the petitioner \^'as recalled and he r"'as -fheteafter the for Post arrest bail taken into custod)'. Petitioner moved a Petition rvhich was ,lislnissed bv this court vide order dated 28-cp-201b on merits and

directed the trial coutl to comPlctc the trial against the Petitioner within 3

months of the date of that order. As such this is the Petitioner's second

application for post arrest bail.

2.As per reietence the Petitioner at the time of the' alleged scam was Sectetary TransPort ancl Mass Transit DePartment Covernment of Sindh ln the pctitioner essence bv misusing his authority and also taking bribes/kickbacks in connivance with the other co-accused caused a massive loss to the National t

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Exchequer as u'ell as bcnefiting himself thlough PrGessing' approving and

making itlegal advance p.l)'menL5 in resPe.t of the Purchase ol heavv vehicles' Il equipment and mini buses and Nlazda trucks

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3.Learned counsel for the Petitioncr submitted that the Pctitioner i5 $eeking post arest bail on the Brounds of hardship arrd medical grounds' Ifl relation to years and 6 hardship the petitioner has contelded that he has sPent almlrst 3 has months in jail and that the triai is not in sight c'f conclusion and that no delay becn caused .)n either his Part o! the Part c)f his.ounsel and thus he is entitlcd tt'

bail on hardshiP Srounds. fle has also contended that the Petilioner is sufferrng from severe psychological issues and t]ut he is entitled to bail on medical grounds. In this respcct hc has placed rcliance on the medical rePort of Dr'Shr:hla Professol DcPartment of Psychiatry Dr.Ziauddin Hospital Karachi and as such

the petitioner lvas entitied to Post arrest bail on both of the abol'c Srounds'

4.On the other hand leamed Special Prosecutor NAB has submitted that the petitioner's casc does not warrant the grant of bail either on hardship or medical gror.rnds antJ thus he has oPPos€d the Srant ol post arrest bail

5.trVe hate heard the lcarned coursel ior the petitioncr' spccial Prosecutor NAB perused the record very carefully and considered the relevant law'

6.As per settlcd laiv we have olrly made a tentative assessment of the material placecl belore us and this older shall not Prejudi'e the case of anv PartY at trial r.!'hich shall bc dccidcd by the trial court basecl on the evidence belore it

7.At the outset we raould observe that the earlier post arlest bail Petition moved by thc Petitioner lvas based on merits This sectrnd Posl atest bail and petitiolt however is moved on the basis of hardshiP and medical grounds since it raises new grounds it is maintainable'

8.ln the case oI Tallat Ishaq V NAB (PLD SC 2019 112) alter a detailed analysis of the lau' on the 8!ant of bail in NAB cases the Ilon'ble SuPreme Court grounds to an set out guidelines as to h'hefl bail migltt be granted on hartiship judgment thc ar'cusecl in a NAB refcrence. No doubt through the abovc relcircd llon'ble Suprt--mt'Court has made the grant of bail on harrlshiP tirounds in NAIi cases lrore stlingcllt ho\^ever it has not totally eradicilte'l it and each case must t,

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be judgetj on its own Paiticular facts and circumstances whilst takirrg guidance

from the gridelines Iaid dorvn in Tallat tshaq'a (SuPra) 'ase

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In Tallat lshaq'n case (SuPra) at Para 23 (I) it rvas noted as undcr] "fft arlntrilu btl r: rllotr-ed to an ,ta,<z.'l person on thc grounl ai,lelny orly ,iu'ltrc tt,t dttdy m the li,tl or thP petiod tt( ct'sloly of th" oiutei person is shocki gr unconsciotable ot inoriindte and rot otierutise. The ltir anl consideration Jbt Srant af batl an lhe grountl rtfsn'1t ,ltldy rt undue harrlshtlt a4d nloft oJl"n tl'ah uot pritu t'L,tc 'r,crtts of llw ias? a1afirl the at'u;td Pcrsott ak also'lookei into tulore idnittitrg lihn tL' bail ttn lhe ground of dehy. " (bold added)

10.At l'ara 22 oI thc iudgrnert it also ttoted as ul1der:- "22. 1'\rc accused lErsofi i lhe atse of Hintslt Khrtrt t Thc Nnhonul Atco nlability Bwealt (NAB), Lahore and oll*rs (2015 SCi4t?. 1Og1) had spinl tbout six years in inil, hts ttiol u:as l norr,hert close to is conahgiott il lhe a[usPd Persdn tl:ns 'ldt prtnt,rrlv responsthle hr si.h dal,tv Alh\ lak.Lg 'IottL( ot lhP 'orm,isiot,s ,,i ,pi!,o tbtd) ti thc \nlit)'|i,l A,cotntnhltly '117,1nt'tnc- !g9g lhis Cnwl hil Jau d lhe lcluy u' 'on'luston i tl| tiul trl be "l otilinqte" ond "shockingf it had' thrs alntitled the actllsetl Perso lo bail- lt tlas obsen)etl by lhs Cowl the! "A dccused Person cantlot be le/t at the fictcq oi the r,rosec:,ttion lo rot in iait fot ttrt i,tdPJbtitP pctiod The 'inoili nte detag ifl lhe .'onclusio ol hial of d(laincd orisoners cannit lte lirhtlv iL',@ftd Profided it L'at not 'crrused duc to onq act ir oirisiion of acfls?d " It ttt" dJtlt'l lhnl "dlsllite tfexciusion claus? benefcill prot'isio o[ seitio 49/' (lr.P.L. ar.n I't, flts!,.tl tttlo serri? tn *nu'gtru,tne aul r,te roses t,t D^1t'tlc rclkf ol {tunt o[ btrl to a ltighly 'bstntng 'rctset' ,u,:urr"rnt"d ,n pi"oi, 1or ,tiotLgt' tlnrolton " t'hi\ o'ttr! l d Sont .nnrc t" oiso n h.trg cluin a.f a l]lotitles ntl on t(' ohsen,c ihut ,ti'ta.i tiri. Cntul t.h?h L,n htt' btin Sttt'tttd ott n"Du l 'i sho;lt,'tq,blry 4 lh. @ tlusia ,'[ t nl tn in\t' tollmg unrler thc NAB lll,s."(bold addcd)

1'1. In thc irLstant case the Petitioner has bcen itl custody for 3 years and 6 by him or counsel months. Generallv speaking the rlela;- has not becn occasioned and there arc 1I morc acting on his behalf. So [ar 10 PW's hat'e been examincd PW's to be examined RouBhly sPeaking in this case it has taken aPprox 3

months to examine each PW $'hich would mean that the triai wouid probably bc

completecl in about 2 more ,'eais at the earliest keeping in view the need to an1' DW's and record the petitioner's 5.342 Cr.PC StatemenL the evidence of arguments of the Parties. This woulcl therefore rcach a total of almost 5 and li

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-t'his remission \t-ould \ ear6 before the trial h'as concluded without considcring mean ttrat if the accused was acquitted then he \'"'ould have been in iail for over 5

years (excluding remission) lvhich is a lengthy Period for which he cannot be sentence ulrdcr compensated. E\'en if the Petitioner is convicted the maximum is aPProx '13 the NAo is 14 ;-ears Ll this casc the loss causetl by the t'ctitioner iacs and as such it scems unlikely that he woul<l be sentenced lo more than]0

years at the most, By this time together with rcr ission he would have almost

servcd 7 Years of his 10 ycar sentence

-12. [n our vieh'keePing in view the time already spent in iail and the time likely to conclude thc tdal the delay is rcaching the level of shockinE' uncorLscionable and inordinate delay which n'ould entitlc the petitioner to bail ol on harclship grouncls. We have already is8ued one direction for the comPletion mct' the tlial within 3 mt-rnths over a vear ago and this directioi has not been Since thcle aic 11 IrW's still to bc examined which Process might take uP to tlvt)

years reatisticaliy we consider that it would be a-n exercise in tutility to give

another dilection to conclude tlxe trial within a gil'en period such as 3 or 6 in jail for months and would only prolong the mise4' of the Petitioner remaining that period. Such a ditection is also likely to be an exercise in futility as at the

moment there are only 2 out of 4 accountability court iudges sitting \'!'ho are

already swampetl w'ith cases and are undcr directions to Proceed with numerous to comPtcte such cases within cases on a day to day basis and have been directcci be Punished by the a given period of time.fhe Petitione! in our view should not inability of the State to aPPoint the nurnber of sanctiolred jurlges in the accountabilit-v courts which rvould enable his case to be heard more bc u'ithheld as a expeditiously. It is also $'ell settled bv now that bail carurot facie that thc punishment ard from a glance at thc record it aPPears Prima petitioner might have a reasonable cas€ on me ts'

being

13.In our vier,' what also tilts the balance in favor of the Pctitioner on hatdship grounds is (a) that the Petitioner's share of the l(Es is granted bail falls within lhe only 43 lacs r.r'hich is a relatively pctty anount ]vhich hardly mandateofthcNARwhichismeanttodealu'ithnleliacorruPtioncasesdealins withlossesrunningintomillionsifnotbillionsofrupeesantl(b)thePctitioncris medic'1l rePort is reProduced clearly sufferinE from severe psvchiatric issues' His in matelial Part as under:-,

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Consultation Dr. Shehla Dr. Zaauddin ivletical UniYcrst!v, Clilton CamPus, Knrachi \{BBS, }:CPS, N{. s<. {.\ddichvt'Behaviou!, LIK) rel) - e22133 2e77'39 t)rDlu,ri in tntcsrdtrvc .,ounsclirrg (CPPD U l' ) 'Iimin8s: Mon 100 - 6:tl0 Pfil Diplonu in chnrLrl 5uP.wision {Ll'l'D. u K', Iri 6:00 - 8:00 Pm As.o.rate PIo[Pqntr, DePl of l'svc]iatry Hitl Park HusPital4.30 - 6 30 Pm Tiauddin Vcdical Udvcr!it\, Karachi' ni )-1t27226 1311, No\,' l9

To whonr it mav aoncern

i(al tof tlab \.1oh .l

-!\ ho rvas Thi$ is the psychiatlic assessment rePort of iVIr' lqbal Bablani' being sent io my clinic by ]ail authorities on'l1n Novcmber' Mr. Bablani is in the jail as a susPcct from last 3 5 years' Since Nlr. Bablarri is imPrisoned, he has becn secn as a quiet' re'luse an(l a loner, who tends to get Provoked and get anrious easilv' Hc harl suffered from tuberculosis in iail and also thc patient of and no proper hypertension as u'ell. His medical health is not lery goocl seli-tare he is able to Provide to himsclf.

l!fr. Bablani r'r'as being senl in m\' (lr c bv the Polr(e dulhorirics ior asrcssmenl t'f hl5 lrtental health currcntlv ..\ an e\fcrt ol)inlon' Un oet'rll assessment via interview and mental state examinatio!1 it is being verJ" trauma during evident that Mr' Bablani has becn through hugc stress ancl this entire tilne'\'vhere he was bein8 heltl in lail and his bail was being imPacts llol only denicd. This has causcd him immensc Pressure and had on his plrysical hcalth rather on mental health kro His dail! routine in hi> stay in jarl is iperlding time in prar'ers 'rn'|,'1ur"tli \itting in the (omer, rt aPP(drs a5 il he lvher)cver lo\e5 lrrrPc In lrlc 'ln(l t1,t,".l oi judiciary his morbid thoughts slaJt to- Predorninate his ""iii"' thinknrl; process ind at times transgtess in to Buicidal ideations' may luse his One of the concerns is, if he is being kePt that helPtess' he h( is n('l (urrenllY hoDe comDlelelv and (an attempt sui€ide' fhough ;;i. ,.;; the'diagnosr- of tleprcssive disorder' but definitely he is suff€rins from emotional trauma and it i9 far more dangerous thd-n people a"p*""i'r" ai-ra* given in his circumstances anJ age fa<tor' as .uiferine from emotional trauma are more likely to take uP desPerate autt"g*.o"t deaisions of harming oneself Sinre he is.an introvert "rri ecceitric his chances of making such decision are very briBht' and

Yours sinr.erel,v,

st/ - Prof Dr.Shchla Alvi.

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her rePort 14 . We had callcd I'rof. Dr. Shchla Alvi in coort in order to cxPlain 'fhat it was very difficult to treat Mr' in more tletail and she informed us (a) detcntion in Bablani in jail for his mental health issues and that (b) his continued jait might be hazardous to his health'

15.Although we are not of the view that the Petitioner's medical condition u,ould alone cntitlc him to the Srant of bail on medical Srounds it is a factor us to Srant coupled with his Primar) ground oI hardship u'hich has persuaded him post arrest bail.

1{t. Thus, tve consirier based on the Particular facts and the circumstances of to be this case when vie\,r'ed in a holistic manner that the Petitioner is entitled arrest granted post arrcst bail on hardship grounds' Thus we hereby g-lant Ptrst in the amount oi R!i' bail to the petitioner subject to hinl furnishing solvent suiety oi the Nazir 100,000 (one lac) and PR bond in the like amount to the satisfaction oi llxr.o(rrt.

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