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Petitioner: Tallat Ishaq VS Respondent: National Accountability Bureau through its Chairman, etc.
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Asif Saeed Khan Khosa, Faisal Arab, Munib Akhtar Title: Tallat Ishaq vs National Accountability Bureau through its Chairman, etc. Case No.: Civil Petition No, 632 of 2018 Date of Judgment:2018-10-01 Reported As: PLD 2019 Supreme Court 112, 2018 P.S.C. (Crl.) 1110 Result: Petition dismissed
JUDGMENT
JUDGMENT ASIF SAEED KHAN KHOSA, J.--- Criminal Miscellaneous Application No, 2941 of 2018 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main petition. Disposed of. Civil Petition No, 632 of 2018 2. Through this petition Tallat Ishaq petitioner has sought leave to appeal against the judgment dated 31.01.2018 passed by a learned Division Bench of the High Court of Balochistan, Quetta in Constitution Petition No, 1300 of 2017 whereby post-arrest bail was refused to him in Reference No, 6 of 2017 filed by the National Accountability Bureau, Balochistan, Quetta against him and others under Section 18(g) read with Section 24(b) of the National Accountability Ordinance, 1999. 3. We have heard the learned counsel for the parties at some length and have gone through the relevant record of the case with their assistance. 4. It has been alleged by the prosecution that in his capacity as an Office Superintendent in the office of the Director Development, Quetta Division the petitioner has acquired assets in his own name and also in the names of his wife and others and such acquisition of assets was beyond. the known sources of income of the petitioner . According to The prosecution the petition er has acquired seventeen immovable properties worth Rs, 9,33,60,982/- and he also possesses six vehicles worth Rs, 1,40,62,500/-. We note that in grounds (I) and (J) taken in the memorandum of the present petition the petitioner has taken contradictory stands inasmuch as on the one hand he has maintained that the relevant properties were purchased by, somebody else through payments made by that person through cheques and it is that person who is the owner of those proper ties but in the same breath the petitioner has also maintained that he had enough means to purchase the relevant properties. The impugned judgment passed by the High Court shows that the High Court had felt satisfied that sufficient material was
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available on the record of investigation prima facie establishing that reasonable grounds existed to believe in the petitioner's involvement in the alleged offence. In that backdrop instead of seriously pressing this petition on the merits of the petitioner's case the learned counsel for the petitioner has mainly argued that the petitioner was arrested in connection with this case on 01.08.2017 but his trial has not so far been completed which delay entitles the petitioner to be admitted to bail durin g the pendency of his trial. In this connection the learned counsel for the petitioner has relied upon the provisions of Section 16(a) of the National Accountability Ordinance, 1999 according to which the trial of such a case is to be conducted on a day to day basis and has to be disposed of by an Accountability Court within a period of thirty days. Relying upon the judgments handed down by this Court in the cases of Aga Jehanzeb v. National Accountability Bureau and others (2005 SCMR 1666 ), Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645), Anwarul Haq Qureshi v. National Accountability Bureau and another (2008 SCMR 1135) and Asfandyar Khan Kakar v. Accountability Court, Quetta and another (unreported order passed by this Court on 06.09.2017 in Civil Petition No, 2920 of 2017) he has argued that on account of failure of the Trial Court to conclude the petitioner's trial within a period of thirty days bail is to be granted to him "automatica lly" as held by this Court in the above-mentioned precedent cases. As against that the learned Additional Prosecutor-General Accountability appearing for the respondents has submitted that it has already been held by this Court in many cases that the provisions of Section 16(a) of the National Accountability Ordinance, 1999 are merely directory in nature and non-compliance of the said provisions does not entitle an accused person to claim bail as of right and in support of his sub missions he has referred to the cases of Faisal Hussain Butt v. The State and another (2009 SCMR 133), Nisar Ahmed v. The State and others (PLD 2016 SC 11), Khalid Humayun v. The NAB through D.G. Quetta and others (PLD 2017 SC 194) and Chairman NAB, Islamabad v. Bakhat Zameen and another (unreported judgment of this Court passed on 26.08.2016 in Civil Petition No, 1542 of 2016). 5. As this petition has not seriously been pressed by the learned counsel for the petitioner on the merits of the petitioner's case and as some judgments/ orders passed by this Court in different cases in the past in respect of the provisions of Section 16(a) of the National Accountability Ordinance, 1999 are not being understood in their correct perspective, therefore, we have decided to clarify the true import and scope of the said provisions after considering all the precedent cases available on the subject so far and to render an authoritative pronouncement on the issue. 6. Section 9(b) of the National Accountability Ordinance, 1999 ousts the jurisdiction of all Courts to grant bail to any person accused of committing an of fence under the said Ordinance and it provides as follows:-- "All offences under this Ordinance 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 shall have jurisdiction to grant bail to any person accused of any of fence under this Ordinance." However , in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) this Court had clarified that a statutory ouster of jurisdiction of all Courts could not affect the jurisdiction of a High Court to grant bail in such cases under Article 199 of the Constitution. This Court had observed in that case as under:-- "197. It was held in the case of Zafar All Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution "remain available to their full extent .... Notwithstanding anything contained in any legislative instrument enacted by the Chief Executiv e." Whereas, Section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under Sections 426, 491, 497, 498 and 561-A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well-settled that the Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as Section 497 of the Criminal Procedure Code, Section 9(b) of the NAB Ordinance to that extent is ultra was the Constitution. Accordingly , the same be amended suitably ." After that clarification by this Court it is now settled that in an appropriate case a person accused of an offence under the National Accountability Ordinance, 1999 may approach a High Court for his bail by invoking Article 199 of the Constitution.
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7. Section 16(a) of the National Account ability Ordinance, 1999 provides that a trial of an offence under the said Ordinance ought to be concluded within thirty days. The said section reads as follows:-- "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 thirty days." On the strength of the said, statutory requirement regarding conclusion of a trial of an offence under the National Accountability Ordinance, 1999 "within thirty days" the learned counsel for the petitioner has argued that the petitioner was arrested in connection with this case on 01.08.2017 but his trial has not so far been completed which delay entitles the petitioner to be admitted to bail "automatically" till the conclusion of his trial: For advancing this argument the learned counsel for the petitioner has relied upon the cases of Aga Jehanzeb v. National Accountability Bureau and others (2005 SCMR 1666 ), Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645), Anwarul Haq Qureshi v. National Accountability Bureau and another (2008 SCMR 1135) and Asfandyar Khan Kakar v. Accountability Court, Quetta and another (unreported order passed by this Court on 06.09.2017 in Civil Petition No, 2920 of 2017). In order to examine whether the learned counsel's understanding of the said precedent cases is correct or not it is necessary to take up the said cases one by one. 8. In the case of Aga Jehanzeb v. N.A.B. and others (2005 SCMR 1666 ) the petitioner facing a trial before an Accountability Court was in continuous custody for the last two years, the complete Challan had not yet been submitted in the case and the petitioner's trial was not in sight. The High Court had dismissed a Writ Petition filed by the petitioner seeking bail and a direction had been issued by the High Court to the investigating agency to submit the Challan before the Trial Court within a fortnight and a direction was also issued by the High Court to the Trial Court to conclude the trial expeditiously , possibly on day to day basis. When the petitioner approached this Court for his bail the matter was disposed of by this Court in the following terms:-- "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 Trial Court at Lahore." We find that the learned counsel for the petitioner in the present case is not justified in concluding from the said precedent case that in every case where trial of an offence under the National Accountability Ordinance, 1999 is not concluded within thirty days the accused person becomes entitled to bail "automatically". In the precedent case mentioned above the accused person was behind the bars for the last about two years and instead of allowing bail to him this Court had fixed a target date for commencement or conclusion of his trial arid it was ordered that in case of failure of the Trial Court to meet that ,target fixed by this Court the accused person would "automatically become entitled to the grant of bail". In the said case, in view of its peculiar facts, the accused person was held to be entitled to bail if the target fixed by this Court was not met and the target fixed by Section 16(a) of the National Accountability Ordinance, 1999 was not the determining factor in that case. 9. In the case of Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645) the petitioners facing a trial before an Accountability Court had spent about two years and eight months in jail and an earlier direction issued by this Court for conclusion of the trial as early as possible, preferably within a period of ninety days, had not been comp lied with. In that peculiar backdrop this Court had admitted the petitioners to bail with the following observations:-- "6. This Court vide order dated 22.9.2006 had directed learned Trial Court to proceed with the trial expeditiously and conclude the proceedings as early as possible, preferably within a period of ninety days. But according to the learned counsel for the petitioners only 9 witnesses out of 58 have been, examined. In this view of the matter , we without touching the merits of the case are of the view that the allegations levelled against petitioners would only be
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determined at the conclusion of trial, which is not yet concluded. The N.A.B. Ordinance was promulgated in order to provide effective measures of detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power of authority , misappr opriation of property , taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. The object of N.A.B. Ordinance as is evident in its preamble is to provide expeditious trial of the schedu led offences within the shortest possible time. 8. 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 again st 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 reassured 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 achiev ed anywhere in the near future and would not constitute a bar for grant of bail to the petitioners. The truth or otherwise of charges levelled 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. N.A.B, & 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. 9. In view of above discussion, we are of the view that petitioners are entitled to the grant of bail pending conclusion of trial. Accordingly , both the petitions are converted into appeals and are allowed." It appears that while deciding the said case this Court was not properly assisted as far as the background of the case of Agha Jehanzeb v. N.A.B. and others (2005 SCMR 1666 ) was concerned. It was not pointed out to the Court that in the case of Agha Jehanzeb, in view of the unconscionable delay and incarceration of the petitioner in that case for about two years, the directio n regarding automatic entitlement to bail was issued with reference to the direction of this Court regarding conclusion of the trial within a specified period of time and not with reference to the period of conclusion of trial mentioned in Section 16(a) of the National Accountability Ordinance, 1999. Even in this case of Muhammad Nadeem Anwar and another the petitioners had been admitted to bail on account of an inordinate delay in their trial in the backd rop of a failure of the Trial Court to comply with this Court's" direction in respect of conclusion of the trial within a specified period, In this case only the spirit of Section 16(a) of the National Accountability Ordinance, 1999 qua expeditious conclusion of a trial was mentio ned but that provision was not made the basis of admission of the petitioners to bail. 10. The next case relied upon by the learned counsel for the petitioner was that of Anwarul Haq Qureshi v. National Accountability Bureau and another (2008 SCMR 1135) wherein the petitioner was admitted to bail by this Court because he was not a public servant, he had remained behind the bars for about a year and a quarter , no progress had been made in his trial and on account of a violation of the provisions of Section 24(d) of the National Accountability Ordinance, 1999 his arrest was illegal. In that background this Court had observed as follows:--- "On perusal of above provision of law, it is clear that a person cannot be detained for the purpose of investigation/inquiry for a period exceeding ninety days and for every remand, reasons have to, be recorded. Petitioner is in judicial lock-up since his arrest i,e, 20.11.2006, whereas, as pointed out by learned Addl. Prosecutor General NAB reference was filed on 4.6.2007 but no progress whatsoever has taken place towards the conclusion of trial. This Court in the case of Asif Sharif v. Chairman, NAB 2004 SCMR 1805 granted bail to accused against whom the reference was filed after about two years from date of his arrest. It was also held in the case 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. This Court has also held in the case of Abdul Qadir v. Federation of Pakistan through Secretary Ministry of Interior , Government of Pakistan and others 2002 SCMR 1478 that conveyance of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of Section 24(d) of the Ordinance which is mandatory in nature and has to be complied with in letter and spirit as the same is based on Constitutionally guara nteed right providing safeguards
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as to arrest and detention of a person embodied in Article 10 of the Constitution of Pakistan, 1973. Non-compliance of such provisions of the Constitution and the Ordinance would render the arrest and detention illegal." It appears that in that case also the peculiar background of the case of Agha Jehanzeb was not pointed out to this Court and bail was granted to the petitioner primarily on the basis of long delay and illegality of his arrest rather than on the basis of the provisions of Section 16(a) of the National Accountability Ordinance, 1999. 11. The last of the precedent cases relied upon by the learned counsel for the petitioner was that of Asfandyar Khan Kakar v. Accountability Court, Quetta and another (unreported order passed by this Court on 06.09.2017 in Civil Petition No, 2920 of 2017). In the order passed by this Court in that case the merits of the petitioner's case were discussed in the earlier part of the order and the case was .found to be a of case for admission of the petitioner to bail on the merits. It was then observed in that order as under:-- "8. We are shocked to see that investigation commenced years back and at the conclusion Reference was filed in the Trial Court but NAB has failed to produce its witnesses and conclude the trial albeit the mandatory provision i,e, Section 16 of the NAB Ordinance stipulates the outer limit for conclusion of the trial as thirty days but we have yet to lay hands on a single case throughout Pakistan right from the date of inception of the NAB that in any such case trial was completed within the statutory period. This lethargic-and indifferent rather negligent attitude on its behalf is highly deplorable and is deprecated. 10. In view of the facts and circumstance s discussed above when the case of the petitioner is one of further probe and because co-accused whose case was on worst pedestals have been granted bail how the petitioner can be detained and that too for indefinite period because till date only one witness has been produced by the NAB and there is a long list/calendar of witnesses in the case. Accordingly , this petition is converted into appeal and the same is allowed, The petitioner is granted bail subject to furnishing his bail bond in the sum of Rs, 50,00,000/- (Rupees Five Million only) with two sureties in the like amount to the satisfaction of the Trial Court concerned." In the said case bail was allowed to the petitioner by this Court essentially on the merits of his case and the shocking delay in conclusion of his trial and the "mandatory" nature of the provisions of Section 16 of the National Accountability Ordinance, 1999 had been referred to as additional factors for the relief of bail. It was not elaborated by this Court in the said order as to why the provisions of Section 16 of the National Accountability Ordinance, 1999 were being referred to as "mandatory". 12. It is quite clear from the examination of the precedent cases relied upon and referred to by the learned counsel for the petitioner that "automatic" entitlem ent to bail upon expiry of thirty days after submission of the Challan in the Trial Court was ordered by this Court in the case of Agha Jehanzeb (supra) only-in the context of failure to comply with an earlier direction of this Court regarding conclusion of the trial within the period specified by this Court and without reference to Section 16(a) of the National Accountability Ordinance, 1999 but in some of the later cases the matter of automatic entitlement to bail upon expiry of thirty days after submission of the Challan was lifted out of context and erroneously attributed to the case of Agha Jehanzeb. We may, therefore, observe with deep reverence that the said later cases do not qualify as good precedents on the issue before us. 13. Adverting now to the precedent cases referred to by the learned Additional Prosecutor-General Accountability appearing for the respondents we note that in the case of Faisal Hussain Butt v. The Slate and another (2009 SCMR 133) the petitioner had remained in jail for over one year in connection with a Reference filed by the National Accountability Bureau but on account of his trial likely to commence within the next few days his petition for bail was dismissed by a High Court and the order passed by the High Court in that regard was upheld by this Court with the following observations:--- "3. We have heard the arguments of learned counsel for the parties and perused the available record. As mentioned above, the allegation against the petitioner . is that he alongwith his co-accused misappropriated huge amount (Rs, 298.000 million) from Allied Bank Limited where he was serving as Incharge C.D. Department. The main ground for bail is delay in trial. Admittedly his co-accused (Tasneem Akhtar , Faisal Hussain Butt, Saghir Iqbal Goraya and Tahir Awais) with similar allegation are in judicial lock-up and facing trial. Learned Senior Prosecutor- General, NAB/respondent No, 2 submits that petitioner and afore-mentioned co-accused opened accounts of various persons and prepared forged record and obtained about rupees twelve crores through on line process from
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different Branches of the country without depositing any amount. Further submits that case is fixed on 17.11.2008 for trial. In these circumstances, we do not find it a fit case for grant of bail to the petitioner . The impugned judgment is just and proper . Learned counsel for the petitioner has not been able to point out any illegality or infirmity in the impugned judgment so as to warrant interference by this Court. As such this petition has no force which is accordingly dismissed and leave refused. However , learned Trial Court is directed to decide the case within five months under intimation to the Deputy Registrar of this Court at Lahore Branch Registry . It is made clear that if case is not decided within aforesa id period, the petitioner may file fresh writ petition for bail before learned High Court." In the said case bail was refused to the petitioner despite the provisions of Section 16(a) of the National Accountability Ordinance, 1999 and the period fixed therein for conducting and concluding a trial. 14. The next case referred to by the learned Additional Prosecutor-General Accountability was the case of Nisar Ahmed v. The State and others (PLD 2016 SC 11). The said case was not a case under the National Accountability Ordinance, 1999 but was a case of murder and murderous assault, etc. wherein the accused person had remained behind the bars for a period of about two years and eight months and repeated directions issued by the High Court regarding expeditious disposition of the trial could not be complied with by the Trial Court. This Court declined bail to the accused person by observing as under:-- "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…
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