O R D E R S H E E T

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-1657 of 2008.

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DATE ORDER WITH SIGNATURE OF JUDGE

For Katcha Peshi.

09.01.2009

Mr. Shafaat Nabi Khan Sherwani advocate for the petitioner.

Mr. Ch. Muhammad Iqbal D.P.G.A. N.A.B.

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This constitutional petition has been filed by the Petitioner praying that this Court may be pleased to admit the petitioner on bail in Reference No. 7 of 2005 pending before the Administrative Judge Accountability Court No.2, Sindh at Karachi.

We have heard Mr. Shafaat Nabi Sherwani learned counsel for the petitioner and Mr. Ch. Muhammad Iqbal learned Deputy Prosecutor General N.A.B.

The learned counsel for the petitioner submitted that the reference under section 18 (g) Read with Section 24 (b) of the National Accountability Ordinance, 1999, was filed before the Administrative Judge Accountability Court Sindh against the petitioner above-named, contending that the amount of Rs.332.019 million was allegedly embezzled by the petitioner while serving as Manager at Habib Bank Ltd. Empress Market Branch, Karachi, since 1996. This branch was later on merged with Bohra Bazar Branch in 2001, wherein the petitioner was again posted as Manager.

In this reference it has been stated that after the realization of some liability the total liability of the petitioner still comes to Rs.297.610 million. The learned counsel submitted that the petitioner was arrested on 26.02.2005 and since then he has been in judicial custody, whereas, the reference has not progressed and has not been finalized despite the provisions of section 16-A of N.A.B. Ordinance, which provides that the hearing of the reference shall be conducted on day to day basis and shall be disposed off within a period of 30 days. He pointed out that this Court vide its order dated 25.09.2008 had transferred the case before the Court of Administrative Judge, Accountability Court, Karachi with direction to conclude the trial within three months under intimation to this Court. The trial Court was further directed to proceed with the case on day-to-day basis and send fortnightly progress reports to this Court. The case was not concluded within three months and a report was called from the Administrative Judge, who vide his letter dated 05.01.2009 enclosed a copy of this report dated 26^th December 2008 stating that the reference could not be completed within the stipulated period of three months as during the last five hearing no special prosecutor General N.A.B. attended this Court though, the PWs. were in attendance.

On the basis of this report the learned counsel submitted that so far only five witnesses have been examined, whereas, 65 more witnesses have to be examined and therefore, it is not possible that the trial will be concluded even in six months. He submitted that since the provisions of section 16-A have been grossly violated and instead of one month it has not been possible to finalize the case even during the period of 24 months, therefore, the petitioner may be admitted to bail and that the Administrative Court may be directed to finalize the case within a stipulated period.

In this connection he relied on the following judgments:

1. Ch. ZULFIQAR ALI VS. THE STATE reported in PLD 2002 S.C. 540.

2. GHULAM HUSSAIN VS. THE STATE reported in 2008 MLD 350.

3. Khawaja MUHAMMAD KHAN TANOLI VS. THE STATE reported in 2008 MLD 352.

4. AYAZ YOUNUS VS. THE STATE reported in 2006 MLD 452

The learned D.P.G.A. N.A.B. could not offer any explanation as to why without any information the Special Prosecutor remained absent for five days in a row. He however, submitted that the main witness have already been examined and all the remaining 65 witnesses have to be examined but their evidence will not take much time as most of them are account holders of the banks from whose accounts the said money was embezzled and therefore, they just have to justify to this effect only. He stated that if 30 days more time is provided to the Administrative Judge to hear the case on day-to-day basis, he undertakes to ensure that the prosecution side will be closed during this period and it will be up to the defense to ensure that the case is disposed off within one month.

We have examined the case in the light of the arguments of the learned counsel and have carefully perused the records of the case and the law on the subject and judgments relied on by the learned counsel.

We have seen that the petitioner has been in custody for almost four years and so far it does not seem possible that the reference against the petitioner can be finalized within a period of one month. Even otherwise though, the non-following of the procedure provided under section 16-A may not vitiate the proceedings but carrying on of the reference against the petitioner almost for four years is beyond the comprehension of the Court and it is now apparent that the delay has occurred due to non-availability of the Special Prosecutor.

We are, therefore, inclined to admit the petitioner to bail. We will, however, do so on the condition that the petitioner submits documents of both his properties, which are said to be flats in the name of his wife and his name with the Nazir of this Court and undertaking to the effect that he will attend all the proceedings of the Trial Court and will not go abroad. He is also directed to undertake that he will not leave the station without written permission of the Trial Court. Subject to the fulfillment of the above condition, the petitioner is admitted to bail subject to furnishing the documents of the two flats mentioned above, which should not be of an amount less than the amount of Rs. 2.5 Million/ for which amount the bail is granted, alongwith the personal bond of the like amount to the satisfaction of the Nazir of this Court. Besides the above documents, the petitioner is also directed to file another surety from some other person of the same amount of Rs. 25,00,000/- (Rupees Twenty Five hundred thousand only) alongwith another personal bond of the same amount to the satisfaction of the Nazir of this Court.

The Nazir will immediately on furnishing the undertakings and sureties, intimate the Ministry of Interior and the the ASF and also send message to all the Air Ports of the Country that the petitioner has been prohibited from leaving the country by this Court. Only after completing such formalities the Nazir shall execute this order for grant of bail.

In the meantime the Administrative judge is directed to reinitiate the proceedings on day-to-day basis and preferably dispose off the reference by an speaking order latest by 31 March 2009.

The petitioner is directed to be present on every hearing of the case and in case of his absence the Administrative Judge may take any adverse action, which he deems feasible.

The petitioner is also put to notice that if he fails to comply with any of the condition of this order the concession of bail may be cancelled.

Judge

Sajid