ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D- 505/2014

DATE ORDER WITH SIGNATURE OF JUDGE

Present: Mr. Justice Muhammad Ali Mazhar

Mr. Justice Shahnawaz Tariq

Ali Anwar Ruk …………………………………..………Petitioner

Versus

The NAB through its Chairman & another ……Respondents

Date of hearing: 24^th July 2014.

Mr. Shaukat Hayat Advocate for the Petitioner

Mr. Noor Mohammad Dayo A.D.P.G NAB

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Muhammad Ali Mazhar J. The petitioner has applied for bail on the ground of statutory delay. Earlier his bail application was dismissed on merits by this Court in C.P No.351/2013, thereafter, he moved another petition No.2895/2013 which was also dismissed by the same division bench of this court vide order dated 16.12.2013 with the following observations:-

“As evidence is being recorded, we are of the view that the process of recording evidence be completed within five weeks. Thereafter, if prosecution delays the matter then the petitioner shall be entitled to move a fresh bail application before this Court. With these observations, this petition is disposed of.”

2. The learned counsel for the petitioner argued that in terms of directions given by this court on 16.12.2013, the evidence was to be completed within five weeks. Since the prosecution has miserably failed to conclude the evidence hence on the ground of delay, the petitioner is entitled to be enlarged on bail. He further submits that there are 27 witnesses in the reference and out of which the evidence of only five witnesses has been recorded so far. In order to prove that the delay has not been caused or occasioned on the part of petitioner or his counsel, the learned counsel pointed out the diary sheets. The petition was disposed of on 16.12.2013, the diary sheet dated 14.12.2013 shows that Mr. Shaukat Hayat advocate for the petitioner was present in the trial Court, other advocates were also present along with co-accused persons but on a joint request made by all the advocates due to Bar Council Election, the matter was adjourned to 21.12.2013. The diary sheet dated 21.12.2013 again shows that Mr. Shaukat Hayat advocate for the petitioner was present along with the petitioner but the learned Presiding Officer of the Accountability Court was on leave and matter was adjourned to 08.1.2014. The diary sheet dated 08.01.2014 shows that learned Presiding Officer of the Court was again on leave and the matter was adjourned to 25.01.2014 but on the said date also the Presiding Officer was on leave. The learned counsel for the petitioner relied upon unreported order of the honourable Supreme Court passed on 11.08.2011 in Civil Petition No.620-K of 2011, (Syed Maqsood Ahmed v. State). In paragraph No.7, the honourable Supreme Court held 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.”

3. The honourable Supreme Court converted the civil petition into appeal and the petitioner was admitted to bail subject to his furnishing solvent surety in the sum of Rs.5 million (Five million) with P.R bond. He further referred to PLD 2003 Karachi 393 (Jamil A. Durrani V.S The State) in which it was held that accused was in jail for the last more than 19 months and trial was not within sight within near future, bail cannot be withheld as a punishment and nobody could be kept in jail for an indefinite period. In that case also the accused was granted bail. He further referred to 2002 S.C.M.R 282 (Mohammad Saeed Mehdi V.S State & others) in which, the honourable Supreme Court dilated upon the preamble of the NAB Ordinance and Section 16 of the said Ordinance and held that object of the Ordinance as contained in its preamble is to provide expeditious trial of scheduled offences within shortest possible time, which position is re-assured in Section 16 of the said Ordinance postulating day to day trial of the case and its conclusion within 30 days. It was further held that object of criminal trial is to make the accused face the trial and not punish an under trial prisoner for the offence alleged against him. Basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay. He further referred to 2002 M.L.D 1180 (Danish Ahmed V.S The State through Chairman NAB) in which also, the learned division bench of this court granted bail on the ground that the directions given by this court to conclude the trial within two months were not complied with.

4. Mr. Noor Mohammad Dayo A.D.P.G NAB has also submitted the diary sheet in chronological order which shows other dates of hearing also from 30.01.2014 to 12.07.2014 in which the case was fixed at least for 18 times and learned A.D.P.G NAB submitted that according to the available diary sheets, entire delay solely could not be attributed to the petitioner however, he was not in a position to controvert the diary sheets of the trial court which are self-explanatory and the reason of delay cannot be attributed to the petitioner.

5. The petitioner is behind the bar since 15.01.2013. It is also matter of fact that the directions given by this court earlier have not been complied with. It is also an admitted fact that the delay was not caused due to any inaction or impediment and or any deliberate attempt on the part of the petitioner or his counsel. It is also an admitted fact that out of 27 witnesses, only five witnesses have been examined so far and naturally for recording evidence of remaining prosecution witnesses, considerable time will be consumed. Keeping in view the present speed, velocity and pace of trial, there is no likelihood that the trial will be concluded in near future. Object of trial is to make an accused to face the trial and not to punish and under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

6. As result of above discussion, the petitioner is granted bail subject to his furnishing solvent surety in the sum of Rs.1.5 (Rupees one & half million) and P.R bond in the like amount to the satisfaction of learned trial court. Petition is disposed of accordingly.

Judge