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Petitioner: SHAHID UMAR VS Respondent: CHAIRMAN NAB and 2 others
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title: SHAHID UMAR vs CHAIRMAN NAB and 2 others Case No.: C.P. No, D-5369 of 2017 Date of Judgment:2017-10-12 Reported As: 2019 P Cr. L J 370 Result: Bail allowed
Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---By this order we propose to dispose of the above mentioned petition for post arrest bail filed by the petitioner (Shahid Umar) which has been pressed by his counsel 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 in National Accountability Bureau (NAB) reference No,27/2015 for acts of corruption and corrupt practices under section 9 of the National Accountability Bureau Ordinance, 1999 (NAO) in connection with the Lines Area Redevelopment Project (LARP) which acts of corruption caused a loss of millions of rupees to the national exchequer. 3. Seven of the accused in the reference are Government officials including the petitioner who at the relevant time was Additional Director Finance LARP whilst the other 32 co-accused are beneficiaries. 4. The petitioner's application for post-arrest bail on merits was dismissed by this Court vide order dated 18-12-2015.the petitioner then applied for post-arrest bail on hardship grounds due to the prolonged delay in completing his trial which was rejected by this Court vide order dated 31-03- 2017 with a direction that the trial court complete the trial within 3 months. This order was appealed to the Hon'ble Supreme Court where a two member bench rejected the same vide order dated 29- 06-2017 with a direction to expedite the recording of the witnesses and decide the matter in accordance with the law. 5. Through this petition the petitioner has again applied for bail on the grounds of hardship keeping in view the fact that 3 months had past since this court originally rejected his bail on hardship grounds and the direction to complete the trial within 3 months had not been complied with and it
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would still take considerable time to conclude the trial. 6. He also placed reliance on an un reported order of a 3 member bench of. the Supreme Court in Civil Petition 17/17 Syed Rashid Hussain Rizvi v. Chairman NAB dated 12-7-2017 (approx 2 weeks after the Supreme Court rejected his bail on the grounds of hardship) whereby the Hon'ble Supreme Court granted bail on hardship grounds to another co-accused in the same reference namely accused No, 5 Syed Rashid Hussain Rizvi. 7. Thus, since the petitioner has spent more than 2 years in jail and the trial is nowhere near to completion and his role is on the same footing as accused No,5 in the same reference Syed Rashid Hussain Rizvi who had been granted bail by the Hon'ble Supreme Court on the grounds of hardship he was also entitled to bail on the grounds of hardship based on the rule of consistency. 8. On the other hand learned counsel for NAB strongly opposed the grant of bail on hardship grounds as a direction to complete the case within a given time was not a new ground for the grant of bail; the petitioner's post arrest bail had been declined on merits; that he was one of the main accused and the loss to the national exchequer was colossal. He placed reliance on a detailed order of another 3 member Bench of the Supreme Court in the unreported case of NAB v. Bakhat Zameen (C. P. 1542/2016 dated 26-08-2016) whereby a stricter interpretation of hardship w.as to be taken in NAB cases and as such the petitioner's application for post-arrest' bail on grounds of hardship should be dismissed, He also placed reliance on the case of Nisar Ahmed v. The State and others (PLD 2016 SC 11). 9. We have heard the parties, perused the record and considered the relevant case law on the subject. 10. At the outset we would make it clear that there is no ground for the grant of bail on account of statutory delay in NAB cases as set out in the third proviso of section 497, Cr.P.C. If, however, there was a prolonged delay in a NAB case then the accused could apply for bail on hardship grounds. 11. Firstly we find that non-compliance of a direction given by the High Court to a trial court to conclude a trial within a given period of A time may not on its own be a fresh ground for grant of bail. In this respect reliance is placed on the case of Nisar Ahmed v. The State and others (PLD 2016 SC 11) which held as under at para-4 (P.13). "4. We have scanned the material placed on record and are unable to subscribe to such submissions of the learned ASC. Neither non-compliance of the directions issued to the trial Court to conclude the trial expeditiously or within some specified time can be considered as valid ground for grant of bail to an accused, being alien to the provisions of section 497, Cr.P.C., nor filing of direct complaint will have any bearing as regards earlier bail refusing orders, which have attained finality, unless some fresh ground could be shown by the petitioner for consideration of his request for grant of bail afresh, which is lacking in the present case." 12. On this ground alone the petition may have been dismissed but we have also in the interests of justice and in our discretionary jurisdiction considered whether this ground could amount to hardship especially as a new ground of the rule of consistency appears to have arisen and the other particular facts and circumstances of the case. 13. Traditionally the superior judiciary has tended to take a stringent view as to what amounts to hardship and hardship cases were classified as being those where there, has been a "shocking" or "inordinate" or "repulsive and unconscionable" delay in completing the trial, which often runs into a delay of a number of years and where there seems little chance of the trial being completed in the near future, as opposed to a lesser degree of delay. For example, in cases such as Hamesh Khan v. NAB (2015 SCMR 1092 almost 5 years delay), The State v. Syed Qaim Ali Shah (1992 SCMR 2192), Riasat Ali v. Ghulam Muhammad and the State (PLD 1968 SC 353), Gul Hasan Penhyar v. The State (1997 SCMR 390 around 6 years delay) Muhammad Azim v. The State (2009 PCr.LJ 1314, Kar. Around 6 years delay), Hashim v. The State (2009 YLR 1777, Kar. Around 6 years delay) Shah Nawaz
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v. The State (2010 YLR 3182, Kar. Around 3 years delay) Anwar Ali v. The State (2002 PCr.LJ 186, Kar. Around 2 years to even frame the charge). 14. Thus, the delay needed to be a long one, through no fault of the accused and anyone acting on his behalf and the trial was not likely to conclude in the near future. 15. Under the NAO as mentioned above there is no provision for statutory bail on account of delay which under section 497, Cr.P.C. is a right whereas hardship cases are at the discretion of the Court based on the particular facts and circumstances of the case. However the Preamble to the NAO provided for the speedy disposal of cases and section 16(a), NAO in particular provided as under: "16. Trial of Offences. [(a) Notwithstanding anything contained in any other law for the time being in force, an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within 30 days.] 16. Perhaps by keeping these requirements of an expeditious trial in view in NAB cases it appears that initially the Superior Courts took a relatively tough view on any delay and was prepared to grant bail in NAB cases even if the delay was for a relatively lesser period of time. For example in the case of Muhammed Saeed Mehdi v. The State (2002 SCMR 282) it was held that the Supreme Court in NAB cases could grant bail "in appropriate cases". Although this case primarily revolved around bail on medical grounds it held as under at P.288 Para 6 in terms of delay. "Para 6. We have carefully considered the submissions made by the learned counsel for the parties. The object of a criminal trial is to make the accused face the trial and not to punish an under trial prisoner for the offence alleged against him. The basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. It is also well-recognised principle of law that bail cannot be withheld as punishment on accusation of non-bailable offences against an accused. It is also a salutary proposition of law that an accused is entitled to expeditious access to justice, which includes a right to fair expeditious trial without any unreasonable delay. In the instant case, it is admitted that the trial against the petitioner has not commenced for no fault attributable to him. It is undisputed that undue delay has taken place in the commencement of the trial against the petitioners for non-production of co-accused Mr. Shafi M. Sehwani, who has been found to be unable, to travel to Attock though it is conceded that he is able to appear before any Court at Rawalpindi. Be that as it may, the object of NAB Ordinance, as contained in its preamble, inter alia, provides for expeditious trial of scheduled offences within the shortest possible time. This position is reassured in section 16 of NAB Ordinance postulating for day to day trial of the case and its conclusion within the thirty days. Obviously, in the present case such object does not seem to be anywhere near its achievement for the reasons mentioned above". (bold added) 17. In the case of Jamil A. Durrani v. State (PLD 2003 Kar. 393) it was held as under at P.398. "The applicant is in jail for last more than nineteen (19) months and the trial is not within sight of completion in near future. It is cardinal principle of law that bail cannot be withheld as a punishment and nobody can be kept in jail for indefinite period as held in the case of Abdul Qadir (supra), therefore, we feel inclined to hold that under these circumstances a case for, grant of bail has been made out." 18. In the case of Aga Jahanzeb v. NAB (2005 SCMR 1666) the Hon'ble Supreme Court observed as under at P.1167. "When questioned that under the NAB Ordinance trial is to conclude within 30 days. Mr. M. Ibrahim Satti, Advocate Supreme Court submitted that this time period is not mandatory but directory for the time being we would refrain from expressing any opinion as to whether the timeframe is mandatory or directory, but would direct that after submission of challan in this case on 7th of May, 2003 if the trial does not commence or conclude within 30 days from the said date petitioner would automatically become entitled to the grant of bail subject to his furnishing bail bonds in the sum of Rs. five millions with one surety in the like amount to the satisfaction of the
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trial Court at Lahore. "(bold added) 19. In the case of Muhammed Nadeem Anwar v. NAB (PLD 2008 SC P.645) the Hon'ble Supreme Court held as under at P.649. "The object of criminal law is to ensure availability of the accused to face trial and not to punish him for offence allegedly pending final determination by a competent Court of law. It is well settled principle of law that grant of bail cannot be withheld as punishment on accusation of non-bailable offence against an accused. An accused is entitled to expeditious and inexpensive access to justice, which includes a right to fair and speedy trial in a transparent manner without any unreasonable delay. This intention has been re-assured in section 16 of the N.A.B. Ordinance laying down criteria for day to day trial and its conclusion within 30 days. But in the instant case such object does not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to the petitioners. The truth or otherwise of charges leveled against petitioners would only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. It was held by this Court in the case of Aga Jehanzeb v. NAB and others (2005 SCMR 1666) that if trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail" (bold added) 20. It should also be kept mind that these cases were decided before the addition of Article 10(A) to the constitution which in effect guarantees the due process rights of an accused which would include the right to an expeditious trial. Article 10(A) provides as under: "10(A). Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process." 21. In later times it appears that the superior courts including the Supreme Court took a more stringent approach to the grant of bail on hardship grounds and tended to revert back to the more traditional approach of a lengthy delay of many years being involved before the conclusion of the trial. 22. In the case of Atta Abbass Zaidi v. Chairman NAB (PLD 2017 Sindh 120) of which one of us -was a member (Mohammed Karim Khan Agha, J) this court attempted to give some considerations/ factors as to when it may be "appropriate" for bail to be granted in NAB cases on hardship grounds bearing in mind that the grant of bail on account of hardship was a discretionary ground in the following terms at P.1023 Para 20. 20. Although, as indicated above, no hard and fast rule can be set out as to what might amount to a hardship case in NAB cases, as opposed to other criminal cases where statutory bail on the ground of delay is applicable, as each case will depend upon its own particular facts and circumstances we have in determining whether the instant case is a hardship case been mindful of the following in exhaustive considerations/factors. (a) the time spent in custody without completion of the trial. (b) that delay in the completion of the trial should not have been caused by any fault of the accused or someone acting on his behalf. (c) the right to an expeditious trial without undue delay as guaranteed by Article 10(A) of the Constitution especially bearing in mind the Preamble to the NAO requiring speedy trials and section 16(a) of the NAO which requires trials to proceed on a day to day basis and be completed within 30 days. (d) that as pointed out by the Hon'ble Supreme Court in the recent case of Ziagham Ashraf v. State (2016 SCMR 18) that if an accused is acquitted at trial then no reparation or compensation can be awarded to him in respect of the time he has spent in jail. It is lost time which may have been spent with his family or in other useful pursuits. (e) whether there was a reasonable chance of the trial being completed within 6 months of the
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date of this order which might justify giving appropriate directions to the Accountability Court rather than enlarging the accused on bail. (f) whether the charge had been framed yet. (g) whether a majority of the PW's had at the time of hearing the petition been examined. (h) how many PW's were left to be examined whether there were more than 7 accused left in the reference. (some of the original accused may have entered into plea bargain or been declared proclaimed offenders.) (j) whether the loss to the exchequer had been made up or otherwise how substantial was the loss bearing in mind the time already spent in jail. (k) whether the post arrest bail of the accused had been declined on merits (l) whether the accused was the main accused in the case (m)whether the accused was of an advanced age (n) whether the accused suffered from any serious medical conditions. (o) the general principle that bail should not be withheld as a punishment. (p) the chances of the accused absconding and/or interfering with witnesses if he is enlarged on bail (q) whether the accused has been convicted before under any Anticorruption legislation or entered into a plea bargain or voluntary return. (r) whether the circumstances leading to the delay could be said to amount to an abuse of the process of law (s) And finally in our constitutional and discretionary jurisdiction under Article 199 of the Constitution the requirement that we do complete and substantial justice. 23. In the above case of Atta Abbas Zaidi (Supra) in which the petitioner was also accused No,4 in the same reference as the petitioner in this case despite the petitioner only spending 14 months in jail this court granted him bail on hardship grounds after taking into account all the above considerations/factors for the reasons in paras 26 and 27 of the order as set out below; "26. The next issue is whether any other of the above mentioned considerations/factors can be pressed into service to justify this being a. hardship case despite the petitioner only having served 14 months in jail. Of the other factors the main ones which weigh against him are that he appears to be one of the main accused, post arrest bail has been denied to him and the loss to the exchequer is very large. 27. On the other hand and which is of greater concern- to us is that within this 14 months period only one out of 10 PW's have been examined and there are 38 accused. We have seriously considered this aspect of the case i,e, delay in framing of the charge and only 1 out of 10 PW's being examined so far along with potentially 38 accused which could amount to 38 separate cross examinations by different lawyers of each remaining witness and consider that in the light of Article 10(A) of the Constitution, the preamble to the NAO and section 16(a), NAO, the medical condition of the petitioner that on balance especially due to the large number of accused and potential cross examinations that realistically in our view there are hardly any chances of this case being completed in the near future as would justify a direction to ;complete the trial within 6 months as realistically speaking it appears that the trial may yet take at least a year to complete if not much longer. As such based on the above discussion, although bail on the grounds of statutory delay is not open to the petitioner, in the interests of justice we consider that the petitioner has made out a case of bail on hardship grounds. In our view Article 10(A) of the Constitution which includes the right to an expeditious trial should be meaningful and should be fully applied in order to protect an under trial prisoner from prolonged periods of detention during his trial due to no fault of his own. Article 10(A) of the Constitution cannot' be seen as a "paper" or "illusionary light" but, rather a live,
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practicable and enforceable right.' 24. This court considered that the above order struck a fair balance in determining the factors/considerations in, hardship cases in NAB matters whilst exercising its discretion bearing in mind that even a murderer can be granted statutory bail as of right provided that the requirements of section 497, Cr.P.C. are met and he may be subject to the death penalty on conviction compared to a maximum sentence of 14 years in jail in NAB cases whilst accepting that corruption is a serious crime and a major menace to society. 25. In essence we therefore identified the key factors as being the length of time already spent in jail by the petitioner with no fault being caused on his part and how much longer the trial was realistically likely to take to conclude based on the particular facts and circumstances of the case. 26. After the above decision Atta Abbass Zaidi (Supra) it appears that in the case of NAB v. Bakhat Zameen (C.P. 1542/2016 dated 26-08-2016) a 3 member bench of the Hon'ble Supreme Court through a detailed and reasoned judgment seemed to have reverted back to a more stricter interpretation of what amounted to prolonged delay in a NAB case for it amounts to a hardship case in the following terms: "Through this petition, the Chairman, NAB has sought cancellation of bail granted to the respondent No,1 by the Peshawar High Court, Peshawar vide its impugned order dated 03.03.2016, passed in Writ Petition No, 3447-P/2015. 2. We have heard the arguments of learned Special Prosecutor NAB on behalf of the petitioner and learned ASC for respondent No, 1. The perusal of material placed on record reveals that respondent No,1 is the only nominated accused in Reference No,3 of 2015, under section 18(g), read with section 24 of the National Accountability Ordinance, 1999 (hereinafter referred to as the "Ordinance of 1999"), submitted by the Director General, NAB before the Administrative Judge, Accountability Courts, KPK Peshawar on 09.1.2015, wherein on 04.02.2015 he has been charged as under:- "Firstly that you in connivance with others prepared 09 (nine) bogus stamp papers of rent agreements for a period of three years commencing from 2008 to September 2011 with Messrs Jan and Bangash Hotel Kohat Road, Peshawar claiming thereby a payment of Rs. 2,43,71,712/- that trainees in the said hotel stayed only for four months at the actual monthly rent of Rs.5,00,000/- including bus charges and that you accommodated students at small houses in different areas of the city at nominal rents and thus misappropriated an amount of Rs. 1,76,71,254/-in the head of accommodation. Secondly that you in connivance with your co-accused Ali Akbar, Younas Shah (who entered into plea-bargain with the NAB Authorities) and Nasim Jan (who became approver and was granted conditional pardon) also prepared bogus invoices of J&S Enterprises. Irshad Traders and Yasir Enterprises claiming expenditure of Rs. 1,39,62,027/- but you cannot justify the amount spent on these fake invoices that your liability after deducting the liability of your co-accused comes to Rs.1,18,67,723/- in the head of procurement. The vocational training part of the FRDP was outsourced by Project Director to you through Memorandum of Understanding (MOUs) and amount was released in full to your account but you misappropriated/embezzled the fund and caused a total loss of Rs. 2,95,38,977/- to the Government and you thereby committed the offence of corruption and corrupt practices within the meaning of section 9(a)(vi) of the National Accountability Ordinance, 1999 punishable under section 10 of the said Ordinance and schedule thereto and within my cognizance." 3. The plea for grant of bail on merits raised by respondent No,1 in his earlier Writ Petition No,3545- P/2014 was rejected by the High Court vide its order dated 28.4.2015, which is available at Pages 19 to 23 of the Court file and speaks for itself. On 10.10.2015, another petition under Article 199 of the Constitution for grant of bail was moved by respondent No,1 on the ground of statutory delay. The learned Division Bench in the Peshawar High Court, while admitting respondent No,1 to bail through
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the impugned order, noted down that the respondent No,1 has remained in custody since 15.9.2014 and during this period the prosecution has only examined 14 out of 31 witnesses, while during ten months period of trial, respondent No,1 has obtained only six adjournments. Thus, he was entitled for grant of bail on the ground of statutory delay of over one year, as the offence for which he was charged was not punishable with death penalty. 4. Before revering to the facts of the case as regards delay or otherwise in the proceedings of the trial before the Accountability Court and the merits of the findings of the learned Division Bench recorded in the impugned order, we would like to make it clear that the provisions of section 497, Cr.P.C. are not as such applicable for the purpose of grant of bail to an accused facing charge/trial under the Ordinance 1999. However, in appropriate cases, the question of delay in the conclusion of trial, depending upon the facts and circumstances of each case on its own merit, has been considered by the superior Courts on the yardstick of hardship vis--vis scheme of Articles 4 and 15 of the Constitution. Thus, ipso facto; application of principles forz rant of bail embedded in section 497, Cr.P.C, including the provision of statutory delay, is devoid of any legal force. 5. Reverting to the facts of the present case, we have noticed that the observations of the learned Division Bench that respondent No,1 has been attributed only six adjournments during the ten months period of trial before the Accountability Court, is result of patent misreading of record, inasmuch as from the perusal of Court diaries of the Accountability Court, which have been placed on record on behalf of the petitioner, through C.M.A. No,4807/2016, it is evident that after framing of charge on 04.2.2015, from 06.2.2015, respondent No,1 has been instrumental in seeking adjournments on 16.12.2015, 25.2.2015, 06.4.2015, 20.6.2015, 13.7.2015, 28.8.2015, 09.9.2015, 22.9.2015, 20.10.2015, 29.10.2015, 06.11.2015, 19.11.2015, 01.12.2015, 12.12.2015, 02.1.2016, 27.1.2016, 18.2.2016 and…
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