IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. D- 247 of 2021

Present;

Mr. JusticeArshadHussain Khan,

Mr. Justice Amjad Ali Sahito.

Applicant : Allah Ditto son of Muhamamd Ismail,

Panhyar, Through Mr. KhadimHussianSoomro,Advocate

Respondent : The Chairman National Accountability

Bureau, through M/s Mujeeb-ur-Rehman Soomro and Bahawal-u-Din Shaikh Special Prosecutors for NAB, Sukkur

Date of hearing : 26.04.2022

Date of Order : 26.04.2022

O R D E R

AMJAD ALI SAHITO, J.- Through instant Criminal Bail, the applicant named above seeks post-arrest bail in NAB Reference No.07/2020 (re- The State vs. Iqbal Ahmed Pathanand others), pending trial before the Accountability Court, Sukkur.

2. At the very outset, learned counsel for the applicant/accused submits that the applicant/accused is innocent he has got no connection with the alleged offences. Applicant Allah Ditto while posted as Executive Engineer Machinery and Maintenance Division Khairpur at Shikarpur performed his duties followingthe law and he did not render any undue benefit to any person. He further argued that the applicant/accused made payments to contractors against actual work done at the site. He further argued that technical assessment in the matter was also made after the arrest of the applicant/accused, even the technical report is silent regarding the manner of calculation for the liability. There is no direct evidence against the applicant or indirect benefit or gains that occurred to the applicant. The allegations of misuse of authority are yet to be proved at trial after recording evidence.Counsel for the applicant/accused pointed out that now co-accused Muhammad Ali who after the grant of bail has joined the proceedings and appeared before the trial Court and now the matter is fixed before the trial Court for framing of amended charge against co-accused Muhammad, thus the trial Court will again examine the all the witnesses and it will take sufficient time.The applicant is behind the bars forthe last 22/23 months and there is no progress in the trial hence he is entitled to a grant of bail.

3. On the other hand, learned Special Prosecutors for NAB vehemently opposed for grant of bail to the applicant/accused.

4. We have heard the learned counsel for the applicant/accused, learned Special Prosecutors for NAB and also gone through the material available on record.

5. It is alleged by the NAB in the interim Reference No.07 of 2020 that the applicant being Executive Engineer, Machinery and Maintenance Division Khairpur at Shikarpurwas approving and signing authority of issuing payments to the contractor of M/S SA Engineers Construction Company after ensuring the quality and quantity of work executed at the site, but he fraudulently, dishonestly in collusion and connivance with co-accused Iqbal Ahmed Pathan(the then Assistant Executive Engineer Sub Division Jacob Abad Machinery & Maintenance Khairpur at Shikarpur) allowed him for recording fake measurements in the measurement books and willfully allowed co-accused Muhammad Ali proprietor of M/s SA Engineers Company with malafide intention converted the same into his usage, the lawfully entrusted government funds by issuing the payments to him without ensuring and assuring the quality and quantity of work executed at the site. Further, he in collusion and connivance with Co-accused Muhammad Ali, proprietor of M/s SA Engineering company including officers and officials of Machinery and Maintenance Division, Khairpurat Shikarpur, approved the fake measurements by making payments of the first RA Bill to the tune of Rs.14,900,000/- and caused loss to the National Exchequer.

6. It is not disputed that the applicant/accused was arrested and he is in jail for about more than02 years. Now the question before us is that whether the delay has been caused by the applicant/accused or anyone acting on his behalf. Admittedly the Reference in the subject case was filed against 09 accused persons including the applicant/accused, whereas, the charge was framed against the accused on 20.08.2020 and after framing of the chargefive witnesses were examined. Counsel for the applicant/accused pointed out that now co-accused Muhammad Ali who after the grant of bail has joined the proceedings and appeared before the trial Court and now the matter is fixed before the trial Court for framing of amended charge against co-accused Muhammad, thus the trial Court will again examine the all the witnesses and it will take sufficient time while the applicant/accused Allahditto who was shown to have been arrested on 18.01.2020 and he is in custody without any progress in the matter. Such a long delay does constitute “an inordinate and unconscionable delay” as held in TalatIshaq v. NAB (PLD 2019 SC 112). 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.”

7. It must be remembered that in criminal law, everybody is liable only for his own acts and omissions, not of others. Even otherwise, in a case where the NAB has been unable to show sufficient incriminating material to the Court to justify the detention of the accused, depriving the accused of his liberty and freedom even for a single day is, to say the least, unconscionable and below human dignity. We are of the considered view that in the period of 02 years only 05 prosecution witnesses have been examined out of 09 witnesses by the learned trial Court but admittedly when co-accused Muhammad Ali after the grant of bail has joined in the proceedings and the matter is now fixed for framing of amended charge hence it will take sufficient time to record fresh evidence of all the witnesses and for examination of the witnesses, the trial Court 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 to protect an under trial prisoner from prolonged periods of incarceration during his trial due to no fault of his own.

8. In view of the above, the learned counsel for the applicant has succeeded to make out the case of the applicant for grant of bail in view of subsection (2) of section 497 Cr.P.C. Accordingly, the instant Cr. Bail Application is allowed. The applicant/accused is admitted to bail subject to furnishing solvent surety in the sum of Rs.1000,000/- (Ten 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 applicant/accused misused the concession of bail, the trial Court shall take action against him followingthe law.

9. Needless to state that any observation in the foregoing paragraphs is of tentative nature and shall not influence the learned Trial Court while handing down the Judgment.

Judge

Irfan/PA