IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitution Petition No. D – 1615 of 2017

Present;

Mr. Justice Zafar Ahmed Rajput

Mr. Justice Amjad Ali Sahito

Petitioner : Asif Ali S/o Illahi Bux,

Through Mr. Hamayoun Shaikh,

Advocate

Respondent : The Chairman National Accountability

Bureau, through Mr. Mujeeb-ur-Rehman Soomro, Special Prosecutor for NAB, Sukkur

Date of hearing : 07.09.2021

Date of order : 07.09.2021

O R D E R

AMJAD ALI SAHITO, J.- Through instant Constitution Petition, the petitioner named above seeks post-arrest bail in NAB Reference No.01/2017 (re- The State vs. Abdul Hameed Pathan and others), pending trial before the Accountability Court, Sukkur.

2. At the very outset, learned counsel for the petitioner/accused submits that he is in jail since 05.12.2017 and out of 36 only seven prosecution witnesses have been examined by the trial Court. He further submits that the petitioner is in jail for the last 03 years and 09 months, hence he is entitled to a grant of bail on the ground of hardship.

3. On the other hand, learned Special Prosecutor for NAB vehemently opposed for grant of bail to the petitioner/accused. He has placed reliance upon the case of Talat Ishaque vs. NAB and others (PLD 2019 SC 112).

4. We have heard the learned counsel for the petitioner/accused, learned Special Prosecutor for NAB and also gone through the material available on record. It is not disputed that the petitioner/accused was arrested on 05.12.2017, thus he is in jail for about 03 years and 09 months. Now the question before us is that whether the delay has been caused by the petitioner/accused or anyone acting on his behalf, as such the progress report was called from learned trial Court. The progress report dated 06.09.2021 furnished by the learned trial Court indicates that the interim Reference in the subject case was filed on 29.06.2017 against 13 accused persons including the petitioner/accused, whereas, the charge was framed against the accused on 05.12.2017 and after framing of charge 06 prosecution examined were examined. Thereafter the supplementary References were filed by the NAB before the trial Court on 05.10.2018 and 17.10.2018, respectively, the copies of the supplementary References were supplied only to four accused persons, who were added in supplementary References and amended charge was framed against the accused persons on 02.02.2019, whereas, on the verbal request of the accused to whom copies of supplementary References were not supplied, necessary copies were supplied to them on 21.03.2019 and 06.04.2019, respectively. Again the amended charge was framed on 02.05.2019 against the accused persons by the learned trial Court. The report further indicates that up till now only 07 prosecution witnesses have been examined, whereas, the evidence of two prosecution witnesses has been given up by the prosecution out of 36 prosecution witnesses and now the matter is fixed on 10.09.2021 for recording the evidence of remaining prosecution witnesses.

5. Learned counsel for the petitioner/accused through his statement placed on record the Order sheet in Reference No.01/2017 which shows that on most of the dates witnesses were called absent on one or the other pretext the matter is being adjourned before the trial Court. The Hon’ble Supreme Court in the case of Tallat Ishaque (supra) has held in para-23(f) that “ordinarily bail is allowed to an accused person on the ground of delay only where the delay in trial or the period of custody of the accused person is shocking, unconscionable or inordinate and not otherwise.” In another case of Himesh Khan v. The National Accountability Bureau (NAB) Lahore (2015 SCMR 1092) the Hon’ble Supreme Court of Pakistan has held that;-

“14. The grant of bail on account of inordinate delay in prosecution was discussed and guiding principle was laid down by this Court in the case of Riasat Ali v. Ghulam Muhammad and the State (PLD 1968 SC 353,) which is to the following effect:-

“Criminal Procedure Code, S.497--- Grant of bail in non-bailable offences:-

Delay in prosecution of accused amounts to abuse of process of law and is a valid ground for bailing out accused however, delay in prosecution of each case as a ground for bail is to be weighed and judged, in each case on its merits.”

There is also a long chain of authorities and dicta of this Court where bail has been granted on account of shocking delay in the conclusion of trial in cases falling under the NAB laws. Reference in this regard may be made to the case of Anwar Saifullah Khan v. The State (2001 SCMR 1040) where it was held that bail cannot be withheld as a punishable on the ground that the offences, the accused is charged for, are not bailable or grant of bail therein was falling within the prohibition.”

6. We are of the considered view that in the period of 03 years and 09 months only 07 prosecution witnesses have been examined out of 36 witnesses by the learned trial Court, for the rest of the witnesses the trial is most likely to take a sufficient period to conclude the case. 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 incarceration during his trial due to no fault of his own.

7. In view of the above, the prosecution has failed to conclude the trial within 04 years, such delay is shocking and unconscionable. The petitioner/accused Asif Ali has made-out a case for a grant of bail on the ground of hardship. Accordingly, the instant petition is allowed. The petitioner/accused is admitted to bail subject to furnishing solvent surety in the sum of Rs.500,000.00 (Five lac) and PR bond in the like amount to the satisfaction of the learned trial court. The learned trial Court is directed to expedite the trial and conclude the same as early as possible. In case the petitioner/accused misused the concession of bail, the trial Court shall take action against him in accordance with law.

Judge

A.R. BROHI