Sultan Qamar Siddiqi (Petitioner) VS NAB and Others (Respondent)

N/}G No 6J *- I. --\.lf Xv-*J-u 'I'}T,E U L' U.t! r !\ rw

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SINDI.I HIGH COURT

SWtc ID,D.

9g,lt:ll llon () f Bcnch. Ar l-t Mv, f.,-pl-.- M.r{.-*.-""--J K..aa',- KN^ ti4,v 5*+-L..- 7_..*lft A ti -(^- Si I Dates of hearir:g:; ?q '<> t1 ' >-o Deciclccl ,rn H 22-<sQ - )-a

(a)Judgment aPProvcd for rcporting.

Yes :M L*,r

CD I(T IFI CATts

r/Orricr is bascd upon or cnuuciatqs a plir:cip-le Cerrilicd that the jtrclgnrent o[ law +/tlccides H question Ji f.ir-ii,l.r, iiti fiittin'pttt'ion / distiogttishcs / r',u"i-.ut.t/ i:verses/exPlains a prr:vicus decision' +Strikc out wlticltever is not applicable

NOI'E:-(i) Tlris slip is only to tre r,scd wlten some actiQn is to be takelt' (ii) u thc slip is usc<!, ttre ilca<lcr must rttach it lo the top of the llrst pa8c of thc iudgrnent.

(iii.l Rerder tnust ask the J udge wr'itirlg the Juclgrnent whetber tbc Juclgnrent is approvr:d iior reporting.

(iv)1'hose dircctions which are not to be used should be deletcd

A

SGP., I(ar.--L (iii) 1459-5,000'-6'93--T'5'5'

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In custodv

IN THE HIGH COURT OF SINDH AT KARACHI

(Constitutional Jurisdiction ) Constitution Petition No. f t L1 o1 2020

Sultan Qamar Siddiqi son of /o 2 2,,2c Late Qamarul Hasan Siddiqi, Muslims, adult.

R/o B-28,Block- I 2, Gulistan-e-Johar, ll Karachi presently confined in Landhi Prison.

Karachi........... PETITIONI,]II

VERSTIS

I National Accountability Bureau.

I

Constituted under the NAB Ordinance, 1999.

through its

a) Chairman, having office ar PRCS Building. 197/5. Dr. Daudpora Road, Karachi Cantt.

b) Director General, having office at PRCS Building, I 97i 5. Dr. Daudpota Road, Y Karachi Cantt,Karachi................. ...IIESPONDEN'TS

CONSTITUTION PETITION UNDER ARTICLE

199 OF THE CONSTITLITI ON OF ISLAMIC

REPUBLIC O F PAKISTAN I97 3 (BAIL ON

HARDSHIP)

The Petitioner above named respectfully begs to subrnit as under: - That the Petitioner is a law abiding citizen, belongs to a respectable family. enjoying spotless reputation amongst his family members and general public locally and globally.

,r.

That late father ofthe Petitioner retired from a Govt. service in BS-21. He was Secretary, Sindh Board of Technical Education. The Petitioner is well reputed dealer involving business of selling ofhigh class guns. In this regard he also panicipated in ldea 2012 Pakistan Exhibition and held his E Stall over there,

That for the sake of present controversy. it would be appropriate to mention here that Pelitioner had filed C.P. No.D-1657/2017 before this

t I In custodv

TN THE HIGH COURT OF SINDH AT KARACHI

(Constitutional Jurisdiction) Constitution Petition nr.?t{ otr,gr0.". /o ,,oZ- ?tl )- Sultan Qamar Siddiqi son of Late Qamarul Hasan Siddiqi. 11

Muslims, adult, IL R/o B-28,Block- I 2, Gulistan-e-Johar, Karachi presently confined in Landhi Prison, Karachi........ .,PETITIONER

!'uRst.ili National Accountability Bureau, Constituted under the NAB Ordinance, 1999, * ,rdr through its ,fi r' a) Chairman, having office at 4.o PRCS Building, 197/S,Dr. Daudpota Road, Karachi Cantt,

b) Director General, having office at PRCS Building, 197/5,Dr. Daudpora Road, Karachi Cantt. Karachi................. ....r{ESPoNDEN't-s

CONSTITUTI ON PET ITION U NDER ARTICLE

199 OF THE CO NSTITU TION OF ISLAMIC

REPUBLIC o F PAKISTAN 1973 (BAIL ON

HARDSHIP )

The Petitioner above named respectfully begs to submit as under: - I That the Petitioner is a law abiding citizen, belongs to a respectable family, enjoying spotless reputation amongst his family mem_bers and general public locally and globally.

2 That late father ofthe Petitioner retired from a Govt. service in BS-21. He .t was Secreta;y, Sindh Board of Technical Education. The petitioner is well reputed dealer involving business of selling ofhigh class guns. In this regard he also participated in ldea 2012 Pakistan Exhibition and held his Stall over there.

A copy of the Card is annexed herewith as Annex_ That for the sake of present controversv, it would be appropriate to rention here that Petitioner had filed C-P. No.D-1657/2017 betbre this ft

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rN THE HIGH COURT OT STNDH AT KAR,ACHI (Constitutional Jurisdiction) c.P.NO.D- 1tt1,, oF 201-9 r-+ vWr.rq( r'\\ I /.'t'' , 1r''l

Riaz Ahmed S/o Latif Ahmed Khan Muslim. aduit re s ident House No .E-l / 5, Malir Exr-ension Colony, Kho khrapar Karachi East------- ---------Petrtioner

VERSUS

E

Y

1 The Federation of Pa kistan through Chairman National Accountabifity Bureau (NAB ) Having offlce al G-5/2 Atta Turk Avenue I s l amabad

2 The Directo.r ceneral Nat ional- Accountability Bureau (NAB) Having Office at 191 /5, Dr. Daudpota Road Karachi Cantt.

3 The Investigation officer II/,1- I I I Of inquj.rylinvestigation Case No.242)-4-7 KHI 197 /5, Dr. Daudpota Road Karachi Cantt------ -- - -- ---Re spondent s

PETITION UNDER ARTTCLE ].99 THE CONSTITUTION

OF' ISI.AMIC REPUBLIC OF PAI(ISTAN 1973 READ WITH

sEcTroN 497 CR. P. C

Petitioner above named respectfulfy submits as under:

I

B.J o/\ I^J rtf fj t<v,\&2 ryf",t .I t JGG {94

IN THE HIGH COURT OF SINDH AT I(ARACHI

Present:

Mr. Iustice Mohammad Karim Khan Arltn Mr. lustice Zulfiqar Ali Sangi.

C.P. No.D-2148 of 2019.

Pt-titioner: Riaz Ahrnell S/o. Latif Ahmetl Khan thloulih Mr. Noor Muharrmad [)ayo, Atlvocatc.

Complainant/ State NAB through Mr, R.I). Kallroro, 5p,.'cia I Prosecutor NAB.

C.P. No,D-914 of 2020 C.I'. No.D-915 of 2020

Petitioner' Sultan Qamar Siciciiqi S/o. Lut.' Q],,,,,,r,,1 FIasan Sicltlitli through Mr. Khara..rja slrirrr'-rrl- Islam, Advocate.

Complair-rant/ State: NAB through Mr. R,D. K;rlhoro, Spr:cial Prosecu tor NAB.

Date of hearing: 20.04.2020.

Date of announcement 22.04.2020.

IUDGMENT

Mohammad Karim Khan Agha, J.- Petitioners Riaz Alrrle.l t/rr l.,rlrl Ahmed Khan and Sultan Qamar Sidcliqi S/o. Qarnarul Hasan Si.lr.iir.li have preferred these petitions for bail after arrest on hartlship groupcls.

2.This court recallecl the pre arrest bail of petitioners Sultan Qarnar Sicldiqi ancl Riaz Ahmed vide order datecl 13,0-{.201t1 rvherc af tcr tl,,tlr t1,., ,l petitioners were taken into custocly. Thereaftel it appeared ttrat ptltitioncr Sultan Qamar Sitldiqi approached the Supreme court for post arJest bail however vide order dated 12.09.201t1 the Supreme court alloJetl thc petitioner to withdraw his petition so he coulcl approach this ct5urt hrr' post arrest bail if he so desirctl. 1he pctitioner apprurachc.d tlris..:J,urt lol post arrest bail which was dismissecl by this court vi.le orclcl .lakrl l9

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01.03.2019. As such this is petitioner Sultan Qamar Sidditli's so(()n(1 petition for post arrest bail before this court. On the otl-rer lrancj this is thtr first petition for post arrest bail filed before this court by pt titioner I(iaz Ahme<i.

3.Petitioner Sultan Qamar Sidclique is Ex.Vice-Clrairrna n Fisltcrnrart Cooperative Society (FCS). Reference no.12/ 2007 has been filcc{ against him for accumulating propertv through illegal mcans. Rclevant facts alr' that on a press clipping in daily newspaper "Express" dateti 21 .06.2017, arr inquiry into affairs of FCS was undertaken by NAB in which, among others, it was found tlrat petitioner was initiallv nonrirratetl as a I)irtrtor in FCS by Secretary Cooperative Department, Covernment of Sintlh orr 10.01.2014. Subsequently he was elevated to the post of Vrce-Cha irrn.r rr and finally worked there as acting Chairman till 17.06.2015. During tl.rat period he receivecl Rs.40,000,u- per month as his salary/Honorarium. But an unusual and continuous cash inflow in his bank acc()ur.rts was rlt'tcr'tr.'tl and an amount of Rs.47.6 million ciisproportionate to his known sourct,s of income was founr-l tleposited in a joint account maintainecl bv hinr x ith his wife. Besides, thc. petitioner was founcl maintainirrg a livirrg stanclartl not commensurate with his legal earnings. Basecl orr such facts rt lt rt'rrc,.' No.12/ 20"17 has been filed against him,

4.Whereas in reference No.02/2018, allegations agairrst this pt,titiont,r are that he in the capacity of acting Chairman FCS appointed illegally his brother in law Asad Zaman in 8917, his father-in-law Mazhar-ul-lslanr as Assistant Manager Market and his childhood friend Abdul Mannarr S/o. Sharif-ul-Muzafar as his Personal Assistant. These persons rrt'vt'r submitted bay educational or experience documents to FCS arrtl wrre onlv appointed because of their close relationship with the petitioner. I:u|rhcr, he and co-accused Dr. Nisar Ahmetl Morai awarclcrl c()ntacts rrl nrillior.rs 1 of rupees to non-existent fake companies. T'here is no record that thcst fake companies had applied for the same or participatc-d in an1'bidcliug process or even ever carried out any construction work in FCS. 'l hcst' contacts were awarded without any aclvertisement in anv newspapev [1, the petitioner and co-accused Dr. Nisar Ahnrecl Morai in counivance rvith each other in violation of relevant rules anrl regulations. It was also fountl,

that bitlding documents of the said companies were fake, forgecl anel fabricated. Further accused Dr. Nisar Al-u:ted N'lorai arlcl ill his absetrr'e petitioner made payments in the form of open chc't1ues ostensibll' to sut lr fake companies, which were actually encashetl bv ctt-accusetl It.nratr Asghar on their behalf being their front man.

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5.With regard to petitioner Riaz Ahmecl in essencc' his role irr tho scam was as assistant manager/manager marketin8 of traslr fislr wlrct't' ht' was involved in the embezzlement of millions of rupces which leael tt,,t colossal loss to the FCS.

6.Both the petitioners have approached this court for posI arrest Lrttil on the fresh ground of harrlship.

7.Learned counsel for petitioner Sultan Qamar Sititlitlrrt' ltas contendeci that the petitioner in the assets beyoncl ktt,.,wtt sL)uT( t'\ (rl income reference was taken into custody on 30.04.201tJ anrl hars trt'allv served 2 years in iail; that no delay in the trial has been causctl on eithcr his part or counsel acting on his behalf; onl\, 2 out of the lJ witrressr.'s h.rvt' been examinecl ancl that the trial cannot be concluriecl in the foreseea[-,le future and as such he is entitlecl to bail on l.ralclslril.r grouncls. l11 supl)()rt ()f his contentions he has placed reliance orr Shahid Umar v. Chairman NAlt and 2 others (2019 P. Cr.LJ 370), Atta Abbas Zaidi v. Chairman, N.rtional Accountability Bureau (NAB) and 2 others (PLD 2077 Sintlh 120), Syecl Manzar Abbas v, National Accounlability Bureau, through f)irector General (2019 MLD 581), Ch. Muhammad Ashraf, Advocate High Court v. Federation of Pakistan through Chairman, NAB Islamabad, an unreported Judgment of Hon'ble Supreme Court in C.l'. No.l)-5571,709tr ancl 71-23 of 2018 and D-988 of 2019 Gulzar Ali and others v. The State dated 16.03,2019, an unreported Jurlgment of this Court in C.['. No.l)- 291,"1/ 20'18, D-6251/2017 and D-4028l2016 Abu Bakar Dawood anct l others v. Federation of Pakistan and others dated 02'06.2018 tlnel atlotht'r' unreported Judgment of this Court in C.P. No.D-4526, 1715, -167-1 arrtl D-4603 /2018, Sarang Latif and others v. Chairman NAB dated 28;tO.2079.

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8.Learned counsel for petitioner Sultarr Qarnar Sicitliqi has cotrtctr,.it'cl that the petitioner in the Fisherman's Co-operative Socit't1' ([rSC) cast'u'as taken into custody on 18.04.2018 antl has served 2 years in iail; rlrat n<' delay in the trial has been causecl on either his part or counst'l actirrll otr his behalf; only 6 out of the 32 witnesses have been examinecl aucl that the trial cannot be conclucled in the foreseeable future especialh .rs tltr material witness has been examined agaitlst him so far.rtrcl as such llt' is entitled to bail on hardship grounds. He placed reliancc on thc c.rst' l.ln' submitted above in the assets beyond known sourccs rlI incontt' rt'[t'rt'ttt t' which has been filed against him by the NAB.

9.Learned counsel for Petitioner Riaz Ahrned sincc lris..lst'is (''rr th(' same footing as petitioner Stlltan Qamar Sidclitlui vis a vis haltlshil-' irr tlrt' FSC reference has aclopted the same arguments as a.lvat.tcc,-l Lrv Pctilirrrrt't' Sultan Qamar Siddiqui in the FSC reference as well as his citations antl has prayed for post arrest bail on hartlship grounds.

10.On the other hand special Prosecut()r NAB has oppost'cl th(r llr.rrrt of all the post arrest bail petitions fileci by the petitioners Firstlv lrt' has contended that with regard to petitioner Sultan Qanrar Siclclitli hartishiP is not a freslr ground ancl as suclr his Petitions are not n.rarintairrablt'. lir t'rt otherwise he has contencled that the cases of both tht' 1.rt'ti tio trt'rs r.1o trirl fulfill the legal requirements of grouncis necessarv to crrablc rclo.rst' tttt bail based on hardship grouncls since clelay has beerl causeel lrv lroth petitioner in each reference and the delay is neithcr shockir.lll 11()r unconscionable and as such all the three bail petitions shoulti [rt' dismissed. In support of his contentions he has placeel reliance on Tallat Ishaq v. National Accountability Bureau (PLD 2019 Su;rremr: Court I l2), Salah-ud-Din v. The State (2010 SCMR 1962) and Muhammad Nawaz v' The State (2002 SCMR 1381),

11.We l'rave heard the parties, carefully reviewetl the recortl antl considered the relevant case law inclutling that cited at the bnr.

72.We have gone through the authorities cited bv each Partv ar.'r(l .rr(' of the view that only the authority of Tallat Ishaq (Supr'.l) is mainlr relevant based on the particular facts and circumstances of this casc z

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Tallat Ishaq's case (supra) was passed by a Iarger belrch of the Supt''-rtttt' Court on 01.10.2018 which cortsiderell all the relevant l.rw otr h.rrtlshil' grounds in NAB cases and laid down definitive guidelines in this resPect

13.With respect to petitioner Sultan Qamar Sicldiclui wc lin(l th.rt his

I

ground of hardship is a fresh grounti as he has not approachc'tl itn\' .()lltl for bail on this ground so far. Admittedly both the pL'titioners h.rr.'c beetr in custody for about two years. A review of the t'c;-rorts callt'cl lrotrt tht' trial court fudges however indicate that somc clelav irr c()nrFl('tirlll th(' trials has been caused on the part of the petitioners as well as NAII.

14.In TaIIat Ishaq's case (Supra) at Para 23 (f), (g), (h) an.i (i) it vvas held as uncler:-

"(f) Ordinarily bail is allotued to an accused person o,t tha gounil oI delarl onlq tuhere the delay in tht trial or tht period of custodr4 of tlrc atcused person is .s/locAirrt, unconscionable or inordinate afid not otheru.tise. flr prittttrtl consideration .for grnnl o[ bntl otr tlr grtttrttl ttf strtlt tltlrt.rl i' undue lnrdslip nnd ntore often llnn rtttl pritttn.litL'it' trcrils r.tl lln' case ngninsl tlrc occuscd parson Ma tlsLt looktrl tttlo l\',ti'r, ndnitting him to hnil on tlrc grotnd o.f rlala11.

(g)Belorc adruilting itt l.L'Ltscd p?rsott lo ltntl ott lln' {n\tlttl il lnrdslip caused br1 n slnt'king, unco st'iottihl( or t onlittttlt delny n High Court or this Court also looks for tht rcnsons lor the delav and if some sigtri.ficant or noticenblt pttrl of the delay is foutrrl to be attributltblt to tlw octttsul person then the relief of bnil is toithheld /ronr lrim".

(h)Ezten in cases of delay ordinariltl bail is rtnt grantul ,( straightwaq snd a direction is issued to tlrc tridl t.rttrl in the /irst instance to cotrclude thc trial ulitltin a P(rioi lixed for the purPose blt the Coult itsef.. ...

(i).............1t {()r's at////()/rl srttltttg llttl rt rlin'tli,'tt t.\ttrtl ltl tl supL'rittr Court ttt llu tritl cotrrl lo LL tLlrrrlt rt lrtll u'tllttrt tr

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specifed period is an administratiae direction antl non- compliance of such a directiott bq the trial cotrt /r.tr uthateoer reason maV not entitle the accused persort to claim bail as o/rlgftf.(bold addeci)

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15.With regard to the case of Tallat Ishaq (Supra) which N A l] has cited in its ob.jection to granting bail. No tloubt Tallat Ishaq's cast'(Srrpra) has made the grant of bail more stringent on harrlship grourrr.ls but it [r.rs not excluded it and it is allowed in exceptional circumstances .rl tl.tc discretion of the court, It is true that this court (in which 0rrc of us n,.rs a member Mohammed Karim Khan Agha l) has grantetl hail on ha rr.ish i1-r grounds after the passing of Tallat's Ishaq's case (Supra) ho*,cvt'r thost, cases are r{istinguishable from the present cases as in tl.rose cast's the Petitioners had spent a consiclerably longer time in custorlr' .rntl tht, concerned accountably court in which they were being trieci was v.rc.lnt.

1,6. In the current cases the petitioners have spent al)()ut t!v() r'r-,.rrs in jail and an accountability juclge for tlre trial court whtre the reft'r't'rr<'t,s against the petitioners are proceeding has assumeci chargt anr-l is 1ulfillinll his duties and as such there is no reason why these referencc's carrrrot hc decided in a reasonable period of time if an appropriate direction is gir t,n by this court. This is especially true in respect of the assets bcvond krron'n sources o[ income reference agairlst petitioner Sultan Qarnar Si.ltlrtpri where he is the sole accused and only 6 PW's rernain to L-re exarninetl.

77.Thus based on the particular facts anti circumstanccs of rlris c.rsr' where sorne cielay has been causecl by the petitioners in cr:nclutiing llrt'ir trials, where the petitioners have spent iust about two yeas in custotiv antl the concernecl accountability courts are now up and running we rl() lr()t consider the delay in the petitioners cases at this point in tinre to btr shocking or unconscionable and as such all three of the pcliti()rcrs' petitions for post arrest bail on harclship grounds are clismisser"l. However the trial court is directed to examine all material witnesses first and to hear each reference on a day to day basis and not allow any adjournment on any flimsy glound and to complete both the trials of the petitioners within 4 months of the date of this order.lrld pr()\'ir['.r

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weekly progress rePort to this court through MIf II. If any acljournnretrt is granted the dairy sheets shall set out which accusecl or which c()Lr I'lst'l ()r NAB as the case may be has caused the delay.

18.The office shall immediately send a cclpy of this order t() the cotrce rtlctl l accountability court Juc{ge for information and comPliallce

79.The petitions stands disposed of in the above tt'rtrs IU z^f a)n.

l I) b>".,.

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