IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. D- 268 of 2021

Present;

Mr. Justice Muhammad Faisal Kamal Alam,

Mr. Justice Amjad Ali Sahito,,JJ.

Applicant : Abdul Razak son of Pehlwan, Bahrani

Through Mr. Muhammad Yaseen Azad,

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 : 25.01.2022

Date of Order : .01.2022

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.02/2020 (re- The State vs. AijazHussainJakhrani and others), pending trial before the Accountability Court, Sukkur.

2. At the very outset, learned counsel for the applicant/accused submits that applicant/accused is innocent he has got no connection with the alleged offences. The applicant Abdul Razzak is an approved government contractor having his independent source of earning therefore, he cannot be held as a benamidar of any person. The applicant has been involved in the allegations of certain transactions but the said transactions were under some private deals and the same has got no nexus with any crime proceed. There is no direct evidence against the applicant or indirect benefit or gains that occurred to the applicant. The allegations of benami properties are without any proof, therefore, are yet to be proved at trial after the recording of evidence. 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.02 of 2020 that the applicant being Government Contractor is involved in several inquiries and investigations on the allegations of misappropriation of funds in which losses of Millions of Rupees has already been surfaced thus the amounts in his bank accounts are also crime proceeds of Government contracts awarded to him which were not executed on sites. Two properties viz. 1) Residential Plot No.256 in Park Enclave Islamabad and 2) 88-37 acres of Agricultural land at DehAhmedpur Taluka and District Jacob Abad were purchased by principal accused AijazHussainJakhrani in which payments of Rs. 16.1 Million is directly made from the bank accounts of applicant Abdul Razzak to the actual sellers of properties.

6. It is not disputed that the applicant/accused was arrested and he is in jail for about 02 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 Interim Reference in the subject case was filed on 14.01.2020 against 05 accused persons including the applicant/accused, whereas, the charge was framed against the accused on 06.11.2020 and after framing of charge out of 49 witnesses,06 prosecutions witnesses were examined. Applicant/accused Abdul Razak was shown to have been arrested on 30.01.2020 and he is in custody without any progress in the matter. Such a long delay does constitute “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. So for the allegation against the applicant is/was that he was involved in the number of inquiries and investigations pending against him for which I.O of the case failed to bring on the record the details of the said enquires/investigations, mere mentioning that the applicant is involved in several inquiries does not constitute the offence until and unless some tangible evidence had been brought on the record. Further learned counsel for the applicant pleaded that the applicant is an approved government contractor having his independent source of earning therefore, he cannot be held as a benamidar of any person or co-accused AijazHussainJakhrani.We have also tentatively scanthe material available on the record of the case, in the interest of justice, to satisfy ourselves whether there is incriminating material available on record which provides reasonable grounds for believing that the applicant is guilty of the alleged offence. Having done so we find that there is no tangible, sufficient, incriminating material available on record against the applicant Abdul Razak for the commission of the offence alleged against him. It is pertinent to mention that during proceeding it has come on record by way of documentary evidence including letter of Habib Bank Limited (HBL) addressed to the Petitioner- Abdul RazakBahrani, confirming that an amount of Rs. 86, 907, 964/- (approximately eighty seven million)through different Bankerscheques(details whereof is mentioned) have been issued favouringChairman NAB Islamabad.

8. 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 06 prosecution witnesses have been examined out of 49 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 to protect an under trial prisoner from prolonged periods of incarceration during his trial due to no fault of his own.

9. Because 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.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 applicant/accused misused the concession of bail, the trial Court shall take action against him followingthe law.

10. 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