IN
THE HIGH COURT OF SINDH AT KARACHI
C.P.
No.D-6306 of 2021
(Iqbal
Hussain Channa …versus…….National Accountability Bureau & Others)
|
DATE |
ORDER
WITH SIGNATURE(s) OF JUDGE(s) |
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen
Lakho
21.10.2021
Mr. Sarfraz Ali Maitlo, advocate a/w
petitioner
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NAIMATULLAH
PHULPOTO, J.— Through instant
constitution petition under Article
199 of the Constitution of Pakistan, 1973, petitioner Iqbal Hussain Channa
seeks pre-arrest bail in an inquiry initiated against Administrator of Pakistan
Post Office Workers Cooperative Housing Society (PPOWCHS), Scheme-33, Karachi
and others.
2. Mr.
Maitlo counsel for petitioner submitted that before filing of this constitution
petition, petitioner had earlier filed constitution petition No.D-5207/2020
against the National Accountability Bureau and others; during the pendency of
the said petition, an Ordinance No.XXIII of 2021, called ‘National
Accountability (Second Amendment)’ has been promulgated and published in
Gazette on 07.10.2021, whereby under Section 7, powers to deal with the bail
matters have been conferred upon the Courts having been established under the
National Accountability Ordinance, 1999. It is stated that this Court vide
order dated 13.10.2021 disposed of the constitution petition No.D-5207/2020 and
granted protective bail to the petitioner for 10 days with direction to
surrender before the learned Administrative Judge, Accountability Courts Sindh
at Karachi, for relief in accordance with law, if he has apprehension of arrest
in view of powers of the Chairman NAB to issue directions for arrest in the pending
inquiry/investigation under section 24 of the NAO, 1999.
3. Learned
counsel for the petitioner further submitted that after passing of the orders
by this Court, the petitioner approached learned Administrative Judge,
Accountability Courts Sindh at Karachi by filing Bail Application No.8/2021 on
20.10.2021 for bail before arrest. The learned Administrative Judge,
Accountability Courts at Karachi passed the following orders :
“Notice
to SP NAB, call for case papers relating to the inquiry in hand. Hearing
26.10.2021.”
4. Learned
counsel for petitioner contended that learned Administrative Judge, Accountability
Courts Sindh, Karachi, instead of passing order of interim pre-arrest bail on aforesaid bail
application filed by the petitioner, issued notice to the Special Prosecutor NAB and in such way, the very
purpose of filing of bail before arrest application has been frustrated and the
purpose of grant of protective bail by this Court has also been frustrated. In
support of his contentions learned counsel for petitioner has relied upon the
following cases:
1.
2017 MLD 347 (Muhammad Ali Hasan vs. The State)
2.
PLD 1974 Lahore 493 (Muhammad Aslam vs. The State)
3.
1970 PCr.LJ 188 Syed Mazahir Hussain Naqvi vs. The State)
5. In
essence, case of the petitioner is that on bail before arrest application
notice to the special prosecutor NAB has been issued and interim bail has not
been granted, overlooking the settled law, which caused inconvenience to the
petitioner. It is observed that this legal issue has already been settled by
this Court in the case of Muhammad Ali Hasan vs. The State (2017 MLD 347
[Sindh]) in the following terms :
“4. Learned
Counsel representing the applicant at the outset submits that neither the name
of the applicant transpires in the FIR nor the police charge sheeted him by
submitting report under Section 173, Cr.PC. Learned Counsel next contends that
the applicant is chronic patient of Lymphoma (Cancer) and was proceeding abroad
for his treatment but he was off loaded at Karachi International Airport as he
was restrained to proceed abroad by the law enforcement agencies including
Immigration department. Learned Counsel further says that the learned
Additional District and Sessions Judge-V, Karachi (West) instead of passing any
pre-arrest bail order including interim order on the Bail Application
No.1306/2016 filed by the applicant, issued notice to Prosecutor; and in such
way, the very purpose of filing of interim pre-arrest bail application was
frustrated. Consequently, instant pre-arrest bail application is converted into
protective bail application. Office to assign protective bail application
number to the instant pre-arrest bail application.
In
the circumstances, without adverting to the merits and demerits of the case,
the applicant Muhammad Ali Hassan is admitted to protective bail in case Crime
No. 343/2012, under Sections 302/322/ 435/436/337/34, P.P.C. subject to his
furnishing solvent surety in the sum of Rs.50,000/- and PR Bond in the like
amount to the satisfaction of Nazir of this Court. This order of protective
bail shall intact till passing the order by the trial Court on interim
pre-arrest bail application mentioned above. The concerned trial Court is
directed to expedite and decide the pre-arrest bail application filed by the
applicant within ten days from today. It need not to iterate that while
entertaining anticipatory bail, the Sessions Judges are required to pass the
pre-arrest bail order where the accused persons approach the Courts with
assertion of their implication with mala fide intention and ulterior motive, by
showing apprehension of their humiliation, disgrace and maltreatment from the
hands of police on imminent arrest.”
6. The
same view was taken by another learned single Judge of this Court in the case
of Dr. Ghulam Murtaza and another vs. The State (2004 PCr.LJ 917 [Karachi]),
which is reproduced as under:
“9. It
is unfortunate that the Judicial Officers abuse their authority by passing
impugned orders of the nature overlooking the settled law thereby causing
serious inconvenience to the parties. Initially
if a notice is issued on bail before arrest application, in normal
circumstances the applicant is enlarged to interim bail. There is reported
judgments to this effect that the application for bail before the arrest is
admitted for hearing the applicants are normally granted interim bail. In these
proceedings several adjournments were granted by the Sessions Judge, Nawabshah
without passing interim orders which ex facie would amount to dismissing the
bail before arrest. What is strange was that once it was brought to the
notice of the Sessions Judge, Nawabshah that the applicant apprehend their
arrest on account of police guarding the Court he was obliged, in law, to
depute any officer to ensure this fact and, thereafter, should have granted
interim bail to procure the attendance of the applicants in Court. Moreover,
the dismissal of the bail applications of applicants for non-prosecution is
foreign to criminal law. The Courts are bound to pass orders on merits
irrespective of the absence of the party, whereas in the present case
reasonable explanation was given by the applicants.”
7. We have
no hesitation to hold that the view
taken by learned single Judges of this Court in the cases of Muhammad Ali Hasan
and Dr. Ghulam Murtaza (supra) is
based upon settled principles of law.
8. In the
present case, learned Administrative Judge, Accountability Courts Sindh,
Karachi, admitted the pre-arrest bail application on 20.10.2021 and only issued
notice to the Special Prosecutor NAB; he was required to pass orders regarding
interim pre-arrest bail on pre-arrest bail application or its dismissal on the
same day, in accordance with law. Issuance
of notice to the Special Prosecutor NAB, by learned Administrative Judge, in
such a way and fixing the hearing of the pre-arrest bail on 26.10.2021, without
passing interim orders, ex facie amounts to dismissal of the
bail before arrest application.
9. Consequently,
this constitution petition is converted to an application for protective bail. Office
is directed to assign its number accordingly. In the above stated circumstances,
without adverting to the merits and demerits of the case, petitioner Iqbal
Hussain Channa son of Ameer Bakhsh Channa is granted protective bail for a period of 05 days from today against same surety already furnished in C.P.
No.D-5207/2020, to enable him to appear before the learned Administrative
Judge, Accountability Courts Sindh, Karachi. Learned Administrative Judge,
Accountability Courts Sindh, Karachi is directed to decide an application for
pre-arrest bail of petitioner in the view of above observations in accordance with law as, by virtue of the National
Accountability (Second Amendment) Ordinance XXIII of 2021, the powers to deal
with the bail matters have now been conferred upon the Courts having established
under the National Accountability Ordinance, 1999. It is made clear that this order shall cease
to have its effect after expiry of 05
days or when the petitioner surrenders before the learned Administrative
Judge, Accountability Courts Sindh, Karachi, whichever occurs earlier.
Let
copy of this order be sent to the learned Administrative Judge, Accountability
Courts Sindh, Karachi for compliance by fax.
The instant constitution petition is
disposed of in the above terms.
J U D G E
J U D G E
Gulsher/
PS