Sikandar Ali Qureshi (Petitioner) VS Chairman NAB and Ors (Respondent)

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ORDER SHEET

IN THE HIGH COURT O F SINDH AT KARA CHI

C.P No.D- 5564 of 2017 Date Order with signature ofJudges

I for orders on CMA No.3l86l/2017 2 For hearing of main case

Mr. Rehman Ghous, Advocate for the Petitioner' Mr. Zahid Hussain Baladi, Special Prosecutor, NAB' Mohammed Karim Khan Agha J; Petitioner Sikandar Ali yeat 2017 ' Qureshi is on pre-arrest bail granted by this Court in the vide order 21.08.2019 this court was informed that all prosecution witnesses except the I.O. have been examined and the matter was fixed on 24.08.2019 for evidence of the Lo.In the aforesaid order learned Special Prosecutor, NAB has submitted that the matter was t being adjourned at the request of defence counsel which was not refuted. After numerous orders on 19.05.2020 it was submitted that the trial was at the verge of completion and the matter was adjourned to 14.07.2020 with the directions to the trial court to complete the matter without further delay. Yet again on 14.07 .2020 this court was informed that all witnesses except the I'O. remained to be examined despite this being the position over one year ago'

2.This Court vide order dated 17.08.2020 was both perturbed and shocked by the fact that despite as far back as 2l'08'2019 which is over year ago still only the evidence of the I'O' remained to be recorded which had still not been done. This resulted in this Court passing an order dated 17.08.2020, which is reproduced as under:- "special Prosecutor NAB has informed us that only the I'O' M). Parkash Lal is yet to be examtned who has now been transferred to Multan. It appears lhst I'O's failure to give evidince is delaying this matter' On the next date of hearing the Accountabitilybourt No.Iil shall record evidence of the I.O. and complete his cross examination as there are only two accused. Learned counsel for lhe accused shall not seek any adiournmenl for rheir cross-examinalion und if the I'O' is re-quired tu sfay lhe nexl day in order to complete his cross examination then he is direcled to remain in Karachi as his return to Multan will only serve lo delay this malter' The trial court shall ensure that the iudgment is made in lhe reference, t

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within two ,nonths of the date of this order. A copy of this order shall be sent by fax to D.G. NAB Karachi and D'G' NAB Multan who shall ensure presence of the I'O' on the next date of hearing who shall also remain present on the nexl date dthe cross examination is not completed. The Accountability Court shall hear this matter on day to day basis and no adjournment shatt be granled except in exceptional circumstance and requesl of adiournment by the porties shall be recorded in the diary sheets, Office to place copy of this order in the connected Petition.

To come up on l0.l 1.2020."

3.On 06.10.2020 where the trial of the petitioner Sikandar Ali Qureshi was pending before the Accountability Court No'III, Sindh,

Karachi this Court received a Reference from the Judge of the concerned Accountability court which indicated that this matter was deliberately being delayed by Sikandar Ali Qureshi (on pre-arrest bail) and his counsel Mr. Rehman Ghous who were avoiding to proceed with the matter without any justification and cogent reason despite directions ofthis Court as reproduced above' Reference dated t 06.10.2020 is reproduced for ease ofreference:

"Ihith profound respect it is humbly submitted that the Refereice'No.17/20i7 was instituted in this Court for its diiposal in accordonce with law against four accused persons iniludtng accwed Sikandar Ali Qureshi, who after granted ad-interim bail surrendered before this court to face the trial' It reveakfrom the record thqt afterframing ofthe charqea all PWs have been examined by the proseculion except I'O' in thh reference. On 22.08,2020, lhis court was communicated the diiections passed in C.P. No'D-5564/2017 and C'P' No'D' 1067/2020 lo hear the maller on day to day bask and thh court was further directed lo announce iudgmenl withln tw.o monlhs oY tt , dott of worthy order dated 17'08'2020' but the matter was already fixed on-03.09.2020 on which date counsel since the LO' for accused and-L-O. NAB were absent and Prakash was posted at Multan and il takes lime lo inform him through DG concern, therefore, matter was adiourned lo 09.09:2020 on which date I'O n'as present' bul defence counsel sent adiournment appltcation on the ground that -he fited transfer ipplication and on grounds of his illness' b-ut there was no stoy otder in transfer application' so-also application was iot supported wilh any documenl hence exsminalion-in-chief of I'O' was recorded and his cross examination was ise*ed on the request of both accused persons. On 10.09.2020 Mr' Rai Ali llahid advocate 'appeared on behalf of Mr. Rehman Ghous udvocale and liled an adiournment ippiicarion on ground that counsel has Jiled C.P. and challengid the re-appointment of Presiding Oflicer,

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so also he liled Cr. Transfer Application, bul lhere was no slay from-Hon'ble High Court howeuer-in lhe interest of justice matter was adioarned to 1I'09'-2020 for cross 'examination on behalf of both accused, but on said date accused Sikandar Ali Qureshi and his counsel both were ubsenl and hh iunior counsel filed on applicalion for condonation of absence as well as to adioarn lhe matler which were allowed and mstter adiourned lo 12'09'2020 on which date co-accused Munqvwar Sultan completed cross- examination of LO. on his part, but accused Sikondar Ali the I'O' Qureshi and his counsel failed to cross examine ience matter adiourned ro 18,09.2020 on which dale Mn Rehmun Ghous advocate present, but refused to proceed with the cose and stuted that case ,nsy be fixed after 4h October, 2020 hence on his choice ,natter was adiourned to 05.10,2020 on suid date I.O. Prakash was again prcsent' but Mr. Rehman Ghous advocate Jiled an application mentioning the same grounds of tiling C'P" fiansfer applicatioi and complaiit against the Presiding Offtcen In iiiw of the above mintioned conduct of accased Sikandar Ali gureini and his counsel Mr. Rehman Ghous who avoids lo f,roceed 'reosons lhe matter without any iustifrcation and cogent in spite of slrict directions of Hon'ble High Cou* It isiubmitted thul the I.O. Prakush is in witness box and came from Mukan on dste of heailngs, but his cross 1. extminatiin on the parl of accused Sikandar Ali Qureshi is not commence yet due to above mentioned conduct of accused and his counsel, therefore, the same may kindly placed before Hon'ble Division Bench for kind perusal and lurther order.

Copy of this reference may be plocld !"Io'" Hon'ble M o n itor i ig Jidg e, Acc o untab il ity C o urts, S indh, K arac h L' sd/- Judge Accountability Court No. IIL Karachi

4.HavingreceivedtheaforesaidReferencethisbenchespecially as one of ,, " i, the Monitoring Judge of the Accountability Courts (Muhammad Karim Khan Agha' J) deemed it proper to pass the following orders:-

"The attached reference from the learned Accountability Court No.Iil,SindhKarachidated06'10'2020undertheheading "Reference regarding conduct of accused Sikandar Ali (State vs' fwed Arshud Quieshi in Referenci No.17/2017 knan A Others)" whose conduct prima-facie aplloy lo be- in violation of this Courl's order dated 17'0E'2020 and amounts to misuse of concession of bail is converted inlo an application ro recail the pre'arrest bail earlier granled lo iicused/petitioner Sikondar Ali Qureshi' Iisue direct intimation notice to the petitioner/accused Sikandar Ali Qureshi, his learned counsel Mr' Rehman Ghous

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and Special Prosecutor NAB us to why the pre-arresl hail granted to the petilioner/accused Sikandar Ali Qureshi ihould not be reculled. To be fixed before a bench comprising of Mr. Justice Mohammad Karim Khan Agha-J and Mn Justice iuffiqar Ali Sangi on 09,10.2020 st 08:30 o.,fl. at serial No'l' Thi iead bailiff shall ewure compliance of this order and be present at the date and time of hearing along with service reports. "

5.Today Mr. Rehman Ghous, learned counsel for the petitioner Sikandar Ali Qureshi has appeared however the petitioner was called absent. Mr. Rehman Ghous, learned counsel for the petitioner Sikandar Ali Qureshi after studying the reference received from the learned trial court was unable to refute any of the allegations made against the petitioner in the reference which was sent by the learned accountability court to the monitoring Judge of accountability courts of this court. His main contention was that since various applications /petitions for the transfer of the case were pending before this court this could be deemed to be an exceptional circumstance justifying an a adjournment as set out vide this courts order dated l7'08'2020'

6.We completely reject this argument of pending applications/petitions as an exceptional circumstance' The leamed counsel during the hearing of these applications before this court' which we have been informed have been going on for quire some time, had every opportunity to seek a stay on the proceedings before the accountably court or at least preclude it from announcing its judgment until his applications/petitions were decided however he failed to do so. Had he done so this would have justified his actions. As such he was required by the orders/directions of this court and the concerned accountability court to proceed with his cross examination of the Io who had travelled from Multan. Notably his other co-accused, who had moved similar applications/petitions in the absence of any stay on the proceedings before the accountability court, did follow the orders of the this court and the accountability court and completed his cross examination of the IO however petitioner Sikandar Ali Qureshi and his counsel point blank refused to do so without any legal justification or legal order in support of the position which they took and appear to be dictating the dates when the,

2pL judge should fix the hearing despite this court ordering/directing the accountability court to proceed with the trial on a day to day basis which had even attended to the difficulty of the IO having to come from Multan to Karachi for his examination in chief and cross examination keeping in view that cases under the National Accountability Bureau are to be decided expeditiously. The conduct ofthe petitioner in short not only violated the orders ofthis court but also appears to be a delaying tactic to slow down the judgment being handed down by the trial court.

7.We find it extremely troubling and undermining of the independence of the judiciary and the whole criminal justice system that a petitioner who has been extended the extra ordinary concession of pre arrest bail can refuse to proceed with his cross examination in the face of direct orders of this court to proceed with this matter on a day to day basis and the order of the trial court to proceed with his cross examination when there is no stay in the field and no stay on a proceeding has been applied for preventing the matter from proceeding. Furthermore, such conduct of the petitioner Sikandar Ali Qureshi was not an isolated incident but was repeated on three separate occasions as per reference received by the trial court' The perception created by the reference from the trial court judge is that petitioner Sikandar Ali Qureshi is trying to dictate to the judge as to how the trial proceeding should be managed and that dates of his choice are to be given despite the orders ofthis court to proceed on a day to day basis which is completely unacceptable and cannot be tolerated in any civilized society which respects the rule of law' One can only imagine the oppression which the learned accountability court judge felt whilst hearing this case' Once her reference came before this court this court could not turn a blind eye to the same and was obliged to step in to protect the dignity of the whole institution of the judiciary and preserve the criminal justice system. A judge is a judge whether a magistrate or a supreme court judge and is entitled to be treated with respect, dignity and due deference in accordance with the accepted practices, conventions, canons of conduct and etiquette of the noble legal profession' In Pakistan we have a written constitution and it and the laws of the land must be abided by and

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orders of the courts must be complied with as the courts are committed to upholding the rule of law and ensuring the smooth running of the criminal justice system. It is notable that as per the Constitution the independence ofthejudiciary can be regarded as one of the golden rules/foundations on which the Constitution is based and has even been held by the Hon'ble Supreme Court as part of its basic structure. It is one of the most paramount duties of the courts to uphold the Constitution, laws of the tand and ensure that the justice system proceeds seamlessly.

8.For the reasons mentioned above we find that the petitioner Sikandar Ali Qureshi through his conduct as narrated in the reference filed by the trial court before this court (which allegations and conduct remain unrebutted) has misused/abused the concession of bail granted to him by this court and hereby recall the same with immediate effect and who shall be taken into custody. The superintendant central prison Karachi shall ensure his l attendance before the trial court on each and every date ofhearing and provide him with all necessary medical requirements including treatment outside of hospitat as set out in our short order.

9.These are the reasons for our short order dated 19-10-2020 which is set out below for ease ofreference.

For the reasons to be recorded later on, the pre-arrest bail of Sikandar Ali Qureshi is recalled with immediate effect and the NAB is directid to take him into custody and place him in the Central Prison Karachi. The Superintendent, Central Prison, Karachi is directed to enst$e that Mr. Sikandar Ali Qureshi is produced on each and every date of hearing before the Accountability Court No.lll, Karachi' The next date is Ith October, 2020 when Mr. Siknndar Ali Qureshi will be -suffering It is noted that produced. if Mr. Sikandar Ali Qureshi is from any medical ailment especially kidney ailment foi whici he requires dialysis, he shall be taken from the Central Prison Karachi on each date in which he requires dialysis and thereafter returned to the Central Prison Karachi".

10.A copy of this order shall be sent by fax to D'G' NAB Karachi, Superintendent Central Prison, Karachi for compliance and leamed Judge Accountability Court No'lII Karachi for,

)- t/ information who shall continue to comply with order of this court dated 17.08.2020 unless restrained from doing so by a competent court of law

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\t MAIgPS