ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI.
C.P No.D-3998 of 2014
Mohammad Sami .. V . .NAB
C.P No.D- 4030 of 2014
Mohammad Asad .. V . .NAB
C.P No.D- 4151 of 2014
Mohammad Abid Hussain .V . .NAB
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Present: Mr. Justice Muhammad Ali Mazhar
Mr. Justice Shahnawaz Tariq
Date of haring 29.09.2014
Ms. Uzma Rafiq, Advocate for the petitioner in C.P No.D-3998 of 2014.
Mr. Mohammad Jamil, Advocate for the petitioner in C.P No.D- 4030 of 2014
Mr. Syed Ghulam Hasnain, Advocate for the petitioner in C.P No.D-4151 of 2014
Mr. Mohammad Altaf, A.D.P.G NAB
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Muhammad Ali Mazhar, J. Through these constitution petitions, the petitioners have applied for bail on the ground of statutory delay.
2. Brief facts of the case are that Jamal Abdul Nasir, Deputy Director, Banking Policy & Regulations Department, State Bank of Pakistan sent a complaint against M/s Nationwala Financial Services Company to FIA. FIA registered FIR No.04/2013 against the accused persons including the petitioners under Sections 406/419/420/468/471/34 PPC read with 27/38 of BCO, 1962 and read with 3/ 4 of AML Act 2010. After lodging the FIR, interim charge sheet was submitted in the Special Court (Offences in Banks), Sindh at Karachi. Meanwhile, the NAB Authorities filed an application under Section 16-A of the NAB Ordinance, 1999 in the Special Court for transfer of case to the Accountability Court. On their application the case was transferred to the NAB Court. During pendency, the competent authority of the NAB authorized investigation and Mr. Najamuddin Junejo was appointed Investigating Officer and thereafter investigation report was submitted. On the basis of investigation report supplementary challan was also submitted by the NAB on 19.03.2014 under Section 18(g) read with Section 24 (b) of the National Accountability Ordinance, 1999.
3. All aforesaid petitioners had applied for bail in the Banking Court before its transfer to the NAB Court which were rejected and thereafter, they filed their bail applications in this Court which were also dismissed. Earlier the same bench in C.P No.D-2820/2014 and two more petitions, allowed the bail to the accused Syed Mansoor Ali, Mansoor Khan and Khawaja Nouman vide order dated 25.07.2014. Keeping in view the rule of consistency, the petitioners have prayed that they are also entitled for the concession of bail on the similar ground as their cases are at par to the case of above petitioners. We have seen the supplementary reference dated 19.03.2014 and the role of present petitioners is mentioned in para No.14 which reads as under:-
14. That accused persons viz. Syed Zahid Ali, Mohammad Asad, Abid Hussain, Mohammad Sami, Mansoor Khan, Khawaja Noman, Syed Mansoor, Sami Ahmed and Naheed Jamal in connivance with each other were running illegal business of variable profit in the name & style of M/s Nationwala Financial Services Company thus cheating innocent and general public at large an offence u/s 9(a)(ix) of NAO 1999 and criminal breach of trust an offence u/s 9(a)(x) NAO 1999.
4. Learned counsel for the petitioner Mohammad Sami argued that the petitioner is behind the bar since 12.04.2013 and the charge in this case was framed on 06.09.2014 which was framed after 17 months from the date of arrest of the petitioner. Learned counsel for the petitioner further argued that in fact the petitioner is himself a victim of the National Financial Services Company and she shown us page number 119 to 141 in C.P No.D-3998/2014 to demonstrate that these are the receipts and agreements which were issued to the petitioner being an investor who invested Rs.600,000/- in the company for monthly profit earning. She further argued that even the charge was framed on 06.09.2014 only for the reasons that this bench in its earlier bail orders dated 25.07.2014 issued directions to the trial court to conclude the trial within a period of six (06) months.
5. The learned counsel for the accused Mohammad Asad in C.P No.D-4030 of 2014 argued that the petitioner was arrested on 12.04.2013 and since then he is behind the bar. He further argued that the petitioner was performing his duties as Circulation Manager in the Super Market monthly advertisement magazine which was being printed and published by Nationwala Company. The appointment letter dated September 2009 is available on record with the termination letter of the petitioner which was issued on 04.01.2013. Learned counsel relied upon the earlier order passed by this bench and he also stated that after a long delay, the charge has been framed but not a single witness has been examined by the trial court in the above reference. While the prosecution has cited more than hundred witnesses in the case.
6. Counsel for the petitioner Mohammad Abid Hussain in C.P No.D-4151/2014 argued that the petitioner was performing his duties as part time Assistant Editor in the monthly advertisement magazine Super Market and letter of appointment of the petitioner is available on record. He also shown us letter of resignation of the petitioner from the post of Assistant Editor, which he tendered on 16.01.2013.
7. All the learned counsel argued that so far as the case of Mohammad Sami is concerned, he was himself a victim of making investment in the business while petitioner Mohammad Abid Hussain and Mohammad Asad were employed in the monthly magazine Super Market. They further argued that though their earlier bail petitions were dismissed by this court but now they have filed the petitions on the ground of statutory delay as there is no likelihood of concluding of trial in near future and the prosecution has almost cited 155 witnesses but not a single witness has been examined. The delay in the trial cannot be attributed to the petitioners.
8. On the contrary, Mr. Mohammad Altaf, A.D.P.G NAB argued that the victims of the investment company are more than 155 persons and they all will be produced as witnesses in the trial court and the charge has been framed on 06.09.2014. He neither controverted that not a single witness has been examined nor he argued that delay in the trial resulted due to any inaction on the part of prosecution. So far as the bail order passed by this bench earlier on 25.07.2014 is concerned, the learned A.D.P.G NAB submitted that the surety amount should be handsome.
9. Heard the arguments. It is matter of record that on 25.07.2014, the same division bench granted bail in the same reference to three accused persons keeping in view the order passed by the honourable Supreme Court in Civil Petitioner No.620-K/2011 (Syed Maqsood Ahmed V. The State through NAB and another). The apex Court considered the grant of bail on the ground of statutory delay provided under Section 497 Cr.P.C, the relevant portion of the order is reproduced as under:-
7.Reverting to the proceedings of the case at hand before the Accountability Court, we find there is no denial of the fact that even before framing of charge, for no fault on his part, the petitioner remained in judicial custody for a period of over 11 months and even thereafter, as discussed above, for delay in the proceedings of the case for a period of over nine months, he is not responsible to the extent that he can be denied the benefit of above reproduced provision of law, which entitles him for grant of bail if he had remained in continuous custody for a period exceeding one year, as in the instant case.
10. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. The accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay and expeditious and fair trial is fundamental right of accused. The intention of law maker is that the criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehend that inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand and on the other hand, it was bound to create a sense of helplessness, despair feelings of frustration and anguish apart from adding to their woes and miseries. In this regard the guidance in the National Judicial Policy 2009 is also provided. We have already considered in the same reference the ground of statutory delay and bail was granted on this ground to three accused persons. To our mind, the case of present petitioners is at par hence they are also entitled to the same treatment and concession of bail. The delay in the trial cannot be attributed to the present petitioners.
11. For the foregoing reasons, the petitioners namely Mohammad Sami, Mohammad Abid Hussain and Mohammad Asad are granted bail in NAB Reference No.61/2013, subject to their furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five lac only) each with P.R bond in the like amount to the satisfaction of Nazir of this Court. The learned trial court is directed to expedite and conclude the trial as already directed by this court in C.P.No.D-2820/2014. The petitions are disposed of accordingly.
Judge Judge