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Official Citation: 2025 SHC 61
Court / Jurisdiction: Sindh High Court
Petitioner: Cr.Bail 60/2025 (D.B.) Sindh High Court, Circuit at Hyderabad - Syed Bhooral Shah (Applicant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 61. In this matter between Cr.Bail 60/2025 (D.B.) Sindh High Court, Circuit at Hyderabad - Syed Bhooral Shah (Applicant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Cr.Bail 60/2025 (D.B.) Sindh High Court, Circuit at Hyderabad CITATION: 2025 SHC HYD 1811 PARTIES: Syed Bhooral Shah (Applicant) ORDER DATE: 18-JUN-25 BENCH: Hon'ble Mr. Justice Miran Muhammad Shah, Hon'ble Mr. Justice Syed Fiaz Ul Hassan Shah(Author) A.F.R: Yes ------------------------------------------------------------ BAIL ORDER NAB REFERENCE NO.3 OF 2021
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IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
PRESENT: Mr. Justice Miran Muhammad Shah Mr. Justice Dr. Syed Fiaz Ul Hassan Shah.
Criminal Bail Application No. D-55 of 2025
Applicant: Farooq Ali Domki through Mr. Farooq H. Naek, Advocate.
Respondents: Moazam Ali Shaikh, Special Prosecutor NAB along with Waqar Anwar, Deputy Director NAB
And
Criminal Bail Application No. D- 60 of 2025
Applicant: Syed Bhooral Shah through Mr. Muhammad Ali Kolachi, Advocate.
Respondents: Moazam Ali Sheikh, Special Prosecutor NAB along with Waqar Anwar, IO/Deputy Director NAB.
And
Criminal Bail Application No. D- 41 of 2025
Applicant: Imran Shaikh through Mr. Mir Haq Nawaz Talpu, Advocate.
Respondents: Moazam Ali Shaikh, Special Prosecutor NAB along with Waqar Anwar, Deputy Director NAB
And
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Criminal Bail Application No. D-32 of 2025
Applicant: Inayatullah Channa through Mr. Zameer Ahmed Ghumro, Advocate.
Respondents: Moazam Ali Shaikh, Special Prosecutor NAB along with Waqar Anwar, Deputy Director NAB
And
Criminal Bail Application No. D- 30 of 2025
Applicant: Ataullah Channa through Mr. Zameer Ahmed Ghumro, Advocate.
Respondents: Moazam Ali Shaikh, Special Prosecutor NAB along with Waqar Anwar, Deputy Director NAB
And
Criminal Bail Application No. D-35 of 2025
Applicant: Wajid Ali Channa through Mr. Zameer Ahmed Ghumro, Advocate.
Respondents: Moazam Ali Shaikh, Special Prosecutor NAB along with Waqar Anwar, Deputy Director NAB
Date of hearing: 15.05.2025
Date of decision: __.06.2025
O R D E R
Dr. Syed Fiaz Ul Hassan Shah, J.- The Applicants have refused to grant concession of post-arrest bails by the learned Accountability Court-I Hyderabad in NAB Reference No. 3 of 2021 (The State V. Munawar Ali Bozdar and others ) for the offences allegedly committed under sections 9 of the National Accountab ility
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Ordinance 1999 (NAB Ordinance) and sections 3 & 4 of the Anti - Money Laundering Act 2010 (AMLA) through impugned Orders dated 22.02.2025, 07.03.2025, 13.03.2025, 24.03.2025 passed by the said Accountability Court No.I, Hyderabad (hereafter referred to as the “trial Court”). 2. The background of the case is that a complaint was received against the officers and official of Right Bank Outfall Drainage, (RBOD) with the respondent NAB. It transpired that during 2017 to 2019 an amount of rupees 9500000000/ - were released in favor of Irrigation Department, Govt of Sindh and the said amount was put at the disposal of the Project Director/principal Accused Munawar Ali Bozdar . Th ereafter the said amount was bifurcated for each division in order to carry on construction and other development work on different sites of the said project commonly known as RBOD project. 3. Initially, FIR No.G -0-04/2020 dated 03.03.2020 was registered at P.S Jamshoro Anti -Corruption Establishment Sindh, against misappropriation and embez zlement of funds allegedly committed by the officers of the project of extension of Right Bank Out Fall Drain (RBOD -II), Irrigation Department Government of Sindh and its contractors under the garb of flood fighting/emergent works. Thereafter, application under section 16- A of the NAB Ordinance was filed before the learned Special Judge Anti -Corruption (Provincial) Hyderabad and vide order dated 15.01.2021, the matter was transferred to the Accountability Court Sindh at Hyderabad. NAB’s Investigation, in th e form of Investigation Report, culminated into filing of Reference No.3 of 2021.
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4. The FIR No. 04 of 2020 was registered following an inquiry into Complaint No. G -0-84/2019 by the Anti -Corruption Establishment (ACE), Jamshoro, with approval from the competent authority. The case concerns alleged corruption in the project “Extension of Right Bank Outfall Drain (RBOD) from Sehwan to Sea, covering Dadu and Thatta districts.” The inquiry revealed that during financial years 2017 -2018 and 2019, officers/officials of RBOD -II Division -I San, in collusion with contractors/companies, prepared fake bills and liabilities under the pretext of flood emergency works and fraudulently withdrew Rs. 575.306 million. A technical inspection found no such work had been executed at SITE, and flood data from 2014–2019 confirmed that there had been no floods during that period of 2017 - to 2019. It was also discovered that Imran Sheikh, then Superintending Engineer, had awarded unauthorized work packages in 2014 – 2015 without approval of the second revised PC-I, which was later approved on 29 -11-2016. Consequently, public funds were misused. An interim challan was submitted to the Special Judge Anti-Corruption (Provincial), Hyderabad. The case was later transferred to NAB Court under Se ction 16A(a) of NAO, 1999. After further investigation, NAB filed a supplementary reference on 20 -01-2024, identifying Munawar Ali Bozdar (Project Director RBOD-II) as being primarily responsible for disbursing the funds. He is accused of releasing Rs.2,493,649,000/- out of which Rs.691,612,500/- for making illegal and bogus payments under the guise of flood emergency works. The accused have been charged under Sections 9(a)(i ), (iii), (iv), (vi), (xi), and (xii) of the National Accountability Ordinance (NAO), 1999 and Section 3 of
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the Anti-Money Laundering Act (AMLA), 2010, punishable under Section 4 of the same. The NAB unearthed the same of Rs.691,612,500/- misappropriated a nd embezzled fraudulently through fake and bogus bills as per narration given at paragraph 74 of the Investigation Report. 5. The brief facts are enumerated in the NAB Reference No.03 of 2021 as well as in the investigation report and hence do not need to be reproduced again. We have heard the learned counsel for the Applicants in the listed Bail Applications and the learned Special Prosecutors appearing on behalf of NAB who has assisted by the Investigation Officer of the case. The record in the case is voluminous. 6. Having heard the arguments and perused the relevant statutory provisions, judicial precedents, and legal submissions and record including the investigation report.
Question-I Statutory jurisdiction (Cr.P.C or Writ)
7. Afterwards, the rule handed down in “Asfand Wali Khan v. the State”, (PLD 2001 SC 607) , the Supreme Court and High Courts handled bail cases under constitutional jurisdiction , applying Section 497 Cr.P.C principles. In “Abdul Aziz Khan Niazi vs. The State” (PLD 2003 SC 668) , the Court affirmed judicial principles and due process in bail decisions on the analogy of procedural law and its provision of Section 497 Cr. P.C despite the bar placed by Section 9(b) NAO. It was held that:
“7. the refusal of bail by the High Court in its constitutional jurisdiction merely for the reason that the concept of discretion for grant of bail under Article
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199 of the Constitution of Islamic Republic of Pakistan, 1973 is d ifferent to that of under section 497/498 Cr.P.C is not proper. The discretion of High Court under the Constitution and under ordinary law in bail matter is based almost on same principle.” Line supplied
8. Pre-Amendment interpretation of Section 9(b): Pre- amendment, Section 9(b) expressly barred any court, including the High Court, from exercising Cr. PC powers unless the NAB Ordinance allowed. “All offences under this Order shall be non - bailable and notwithstanding anything contained in sections *(426, 491), 497, 498 and 561 -A or any other provision of the Code or any other law for the time being in force no Court, including High Court shall have jurisdiction to grant bail to any person accused of any offence under this Order.” (*Inserted by Ordinance IV/2000 dated 3.2.2000).
9. Post-amendment interpretation of Section 9(b): Pursuant to the judgment in Khan Asfandyar Wali’s case (Supra) , Ordinance No. XXXV of 2001 , dated 10.08.2001 (Federal Statute), introduced a significant amendment to Section 9(b) of NAO, 1999. The amendment omitted the words “including High Court” after “no Court” , the reference to High Court was deliberately removed from Section 9(b) thereby modifying the provision to read as follows:
“All offences under the Order shall be non - bailable and notwithstanding anything contained in sections 426,491, 497, 498 and 561A or any other provision of the Code or any other law for
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the time being in force no Court,** shall have jurisdiction to grant bail to any person accused of any offence under this Order.” (**Including High Court” omitted)
10. The removal or omission of the term ‘High Court’ from the text of Section 9(b) of the National Accountability Ordinance, 1999, and the use of the generic term ‘Court’ thereafter, reinforces the presumption that the High Court has been intentionally excluded from the operation of the ouster. Accordingly, the supervisory and inherent jurisdiction of the High Court remains intact and unimpaired, and continues to be exercisable in appropriate cases where no alternate remedy exists or where intervention is necessary to prevent miscarriage of justice. 11. To reconcile Section 9(b) with constitutional safeguards, the doctrine of severability is a rule from Constitutional law to strike down only the unconstitutional or inconsistent part of a statute while preserving the valid portions, provided the valid portion can function independently. Although, it’s secondary in this case as the Courts are reluctant to strike down legislation i f a reading down can achieve constitutionality but reference would provide certainty by applying its test too. In the present context, even if the broader ouster language in Section 9(b) is upheld, the omission of the High Court implies that any bar cannot be severed to apply to it without offending legislative intent. Courts possess the authority to judicial review to sever the illegal provision of a statute or unconstitutional provisions that excessively restrict procedural rights while preserving the
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remainder of the statute. If a post-amendment version of Section 9(b) selectively or arbitrarily bars procedural rights—such as bail or sentence suspension —courts may invalidate the relevant provision while ensuring the broader objectives of the NAO remain in tact. Doctrine of Severability allows the isolation of unconstitutional parts of legislation without invalidating the whole. Reliance can be placed on the cases reported as “Benazir Bhutto v. Federation of Pakistan”, (PLD 1988 SC 416), “Mian Muhammad Nawaz Sharif v. State”, (PLD 2009 SC 814) & “M.D. Khandelwal v. Union of India”, (PLD 1998 Lahore 181). 12. The doctrine of reading down is a cardinal principle of constitutional interpretation. Courts often read down provisions that would otherwi se render a statute unconstitutional and is best suited when the goal is to preserve the statute but limit its scope. If a literal reading of a provision would violate fundamental rights or lead to an absurdly patchwork regime, the court narrows its scope (“reads it down”) rather than striking the whole thing. Here, even if Section 9(b) were to be interpreted broadly, it must be read down to exclude the High Court from its ambit so as to preserve the constitutionality of the statute and ensure continued acc ess to justice. Pakistan’s superior courts have frequently used this doctrine when dealing with ouster clauses or overbroad legislation, especially in criminal law and preventive detention statutes. For instance, Courts read down ouster clauses in preventi ve detention laws to allow habeas corpus jurisdiction under Article 199 of the Constitution of Pakistan, 1973. Therefore, this Court can interpret 9(b) narrowly, so it does not exclude Cr.P.C provisions Sections 426, 439, or 561 -A. It allows judicial
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harmony between the NAO and the Constitution without declaring 9(b) ultra vires. Doctrine of Reading Down permits courts to interpret statutes narrowly to preserve their constitutionality. Reliance can be placed on the case “Federation of Pakistan v. Durrani Ceramics”, (2014 SCMR 1630). 13. Precariously, the subjective requirement of ouster clause section 9(b) viz “non-bailable offence” has eventually been amended through Amendment Act 2022, the objective purpose of ouster provision has become objectiveless and redundant. 2 [Subject to the provisions contained in sections 439, 496, 497, 498 and 498A of the Code, no court other than the Court established under this Ordinance shall have powers to grant bail or order release of the accused.] *substituted vide National Accountability (Amendment) Act, 2022 dated 22.06.2022.
14. We are mindful that the High Court vest its judicial authority not from procedural statute but from the Constitution itself, under Article 175. It retains jurisdiction under Articles 199 and 203, and inherent powers under Sections 426, 439, and 561-A Cr. P.C. Article 175(2) of the Constitution of Pakistan, 1973 demands that: “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.”
15. Article 175(2) provides that no court shall have any jurisdiction except as conferred by the Constitution or by law. However, this limitation must be read in harmony with the entrenched status of superior courts, whose supervisory and
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constitutional powers under Articles 184(3), 199, and 203 are not derived from statutes but from the Constitution itself. The provisions of Sections 561 -A and 439 recognize the High Court’s inherent powers in criminal matters —not granted by statute but it has acknowledged. Therefore, on both perspective, the filing of criminal application under section 497 Cr.P.C. is now maintainable rather a constitution petition. 16. Hence, Section 561 -A serves merely as statutory acknowledgment of a power already embedded in the constitutional structure. Therefore, in the presence of statutory remedy by way of Appeal, Revision or Proceeding und er inherent jurisdiction conferred by Section 561 -A Cr.P.C, the Supreme Court of Pakistan does not incline to entertain Constitution jurisdiction. Reliance can be placed in “Dr Sher Afgan Khan Niazi v. Ali S. Habib and others”, (2011 SCMR 1813) while approving earlier principle settled in “Nawazul Haq Chowhan v. State”, (2003 SCMR 1597) . Section 561 -A Cr.P.C recognizes the High Court’s inherent powers in criminal matters —not granted by statute but it has acknowledged. 17. Therefore, we hold that criminal bail applications under Section 497 and 498 of the Code of Criminal Procedure (Cr.P.C.) are maintainable before this Court. Furthermore, we affirm that the High Court, under its inherent jurisdiction, has the authority to a djudicate bail applications and issue appropriate orders, including reviewing decisions made by the National Accountability Court in a pending reference. Additionally, applying the same jurisprudential legal principle, this Court holds jurisdiction to entertain applications under Section 426 Cr.P.C. in
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pending appeals or revisions under the NAO, ensuring due process and judicial oversight in such matters.
QUESTION-II APPLICABILITY OF TWO PROVISION OF SAME STATUTE
18. This Court proceeds to determine the scope and interplay between Section 4(d) and Section 9 of the National Accountability Ordinance, 1999 (NAO). “Determination of Scope and Applicability of Sections 4(d) and 9 of the National Accountability Ordinance, 1999 (NAO) — Procedural Lapses and Crimi nal Liability”
i. General principles of interpretation:
When two provisions of the same statute appear to be in conflict, one provision grants exemption or protection , and another fixes liability, the court will determine Scope and intent of each provision as to whether the provisions can coexist by limiting one to non -criminal matters and the other to fraudulent/criminal acts by applying rule of harmonious construction . This means; "the statute must be read as a whole, and effect must be given to all provisions so that none is rendered redundant, contradictory, or meaningless. Both provisions are presumed to have meaning and purpose." ii. Contextual Framework of NAO 19. The National Accountability Ordinance, 1999 (NAO) , though a special law , defines a range of offences such as corruption, criminal breach of trust, misappropriation, and dishonest conversion — terms that either originate from or are judicially defined under the Pakistan Penal Code, 1860 (PPC) .
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The NAO does not always provide comprehensive definitions, and where its language parallels offences under PPC (e.g., “misappropriation”, “fraudulently”, “dishonestly”), courts are justified in importing established definitions and interpretative standards from the PPC and related jurisprudence.
iii. Legislative & Jurisprudential Basis 20. Section 9 NAO – "Corruption and Corrupt Practices" includes acts such as dishonest or fraudulent misappropriation, conversion of property, and abuse of position. These terms align closely with: Section 403 PPC – Dishonest misappropriation of property Section 405 PPC – Criminal breach of trust Section 24 & 25 PPC – Definitions of “dishonestly” and “fraudulently” Section 415 PPC – Cheating to deceit or retain property or harm.
iv. Aim and Framework for Understanding
21. The NAO borrows heavily from the PPC in substance and structure. Where the NAO uses terms borrowed directly or substantially from the PPC in substance and structure . Therefore, the interpretation of offences under NAO must draw from the definitions, prin ciples, and case law developed under the PPC. C ourts must interpret them consistently with the meanings settled under PPC jurisprudence. This approach ensures uniformity, legal certainty , and compliance with constitutional guarantees of a fair trial. Reliance is placed on
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Supreme Court of Pakistan cases. In “State v. Zafar Abbas” , (2015 SCMR 736) the Supreme Court affirmed that “dishonesty” must be interpreted per Section 24 PPC when applied under NAO. In “Muhammad Riaz v. The State” , (2019 SCMR 728) held that “Criminal intent” under NAO construed using PPC's interpretative framework. In “State v. Misbah -ud-Din”, (PLD 2021 SC 409) held that mens rea under NAO cannot be presumed; must be proven in accordance with principles derived from the PPC. v. Legal Principles Applied 22. Doctrine of Harmonious Construction —Under the rule of harmonious construction , Section 4(d) and Section 9(iii) of NAO: do not conflict , but rather address different categories of conduct. The Procedural lapses (without corrupt intent) are exempt under Section 4(d) while the Dishonest or fraudulent acts fall under criminal liability in Section 9(iii). Courts will interpret these together to protect honest officials while still punishing corruption. Sections 4(d) and 9 must be interpreted together to maintain the integrity and purpose of the NAO. Section 4(d) does not negate Section 9. 23. Doctrine of No Redundancy —Each provision must be given full effect. Section 4(d) cannot be interpreted to undermine the substantive offence provisions under Section 9. 24. Specific Over General (Generalia Specialibus Non Derogant)—Section 9, being specific in nature regarding corrupt practices, prevails over the general procedural protection of Section 4(d) when corruption is established.
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25. Purposive Interpretation —the interpretation must align with the legislative object of the NAO, which is to root out corruption. Thus, Section 4(d) cannot be used to shield criminal intent or benefit.
vi. Judicial Precedents support for Harmonious Construction: 26. In “Federation of Pakistan v. S.A. Mazhar”, (PLD 1970 SC 1) held "Where two parts of a statute appear to be in conflict, an interpretation should be adopted that gives effect to both." 27. In “Fauji Foundation v. Shamimur Rehman”, (1993 SCMR 1287) held "Statutes must be construed as a whole and provisions harmonized if possible. 28. In “Haji Muhammad Nawaz v. State”, (2009 SCMR 407) held "Where immunity or protection is granted, courts must carefully ensure it is not misused to shield fraud or corruption." Indian Jurisdiction: 29. In “State of Jharkhand v. Govind Singh, (2004) 10 SCC 505] held w hen the words of a statute are clear, plain, and unambiguous, then the courts must give effect to them without speculating into legislative intent.” 30. In “Workmen of American Express v. Management”, [(1985) 4 SCC 71] held that the courts must adopt a beneficial interpretation that furthers the purpose of social welfare legislation. 31. Further reliance can be placed on judicial precedents held by Supreme Court of Pakistan in “Asfandyar Wali Khan (supra); “Chairman NAB v. Shabbir Ahmed”, (2022 SCMR 1360);
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“State v. Misbah -ud-Din”, (PLD 2021 SC 409); and Supreme Court of India in “State of Maharashtra v. Som Nath Thapa”, [AIR 1996 SC 1744 (India)]. QUESTION-III: INTERPRETATION AND IMPLEMENTATION NAO SECTIONS 4 & 9
32. The core purpose of the National Accountability Ordinance (NAO), 1999 — which is to eradicate corruption and corrupt practices in the public and private sectors. While procedural lapses may offer a shield under the amended Section 4(d) while critically gauging and observing persecution by the NAB investigators in various cases , however, this defence becomes legally untenable in the face of criminal intent (mens rea) or dishonest conduct under Section 9 of the NAO . The preamble and object of NAO clearly state that: “The Ordinance is intended to provide for the recovery of misappropriated assets, prosecution of persons involved in corruption, and to bring transparency and accountability in governance.”
33. Hence, prevention, investigation, and punishment of corruption are its central objectives. Section 4(d) is not meant to nullify Section 9. Rather, it protects only procedural irregularities that occur without dishonest intent . Guidance can also be taken from the Supreme Court of India cases. “R.S. Nayak v. A.R. Antulay , AIR 1984 SC 684); “ Shah Faesal v. Union of India”, [(2020) 4 SCC 1]. Therefore, its provisions must be interpreted to promote transparency, accountability, an d deterrence against misuse of public office. Reliance be placed on
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the following dictums of Honorable Supreme Court of Pakistan and Indian: i. “Asfandyar Wali Khan (Supra); the Supreme Court clarified that genuine procedural errors are not punishable under NAO, but dishonest misuse of authority or willful loss to the public exchequer is actionable. Without element of criminality NAB has no jurisdiction.
ii. In “Chairman NAB v. Shabbir Ahmed”, (2022 SCMR 1360); t he Supreme Court ruled that intentional misuse of authority for personal benefit cannot be termed a “procedural lapse” and falls within the ambit of Section 9 NAO.
iii. In “Khalid Aziz v. NAB”, (2019 SCMR 1254), the Supreme Court held Mens rea is a vital component. Without proving dishonest intent, a prosecution under NAO cannot sustain. However, once such intent is established , procedural defences collapse.
Indian Parallel – iv. In “State of Maharashtra v. Som Nath Thapa”, (AIR 1996 SC 1744), the Supreme Court of India held that "Mens rea is an essential…
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