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ATTA ABBAS ZAIDI versus CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB)

ections Sections 9 (b) and 16 (a) of ruption Corruption and Corruption Practices - Bail, Grant concurrent due to delay in trial - Legal bail due to delayed labor ope jurisdiction was a right though delayed labor case. The inclusion was not correct and was at the discretion of the court hard The guarantee on a hard basis depends on the particular facts and circumstances of each case to determine whether the matter qualifies as a matter of rigor or not. The month was spent in prison. Due to this error, the trial could not be completed. Only one of the prosecution's 10 witnesses was examined and there were 38 accused. Trial of the trial may take at least one year - the accused presented the bail case. On a strict basis - the right to a speedy trial should be meaningful and it should be fully applied to protect the detainee from prolonged detention for any mistake - based on the strictness of the suspect. The bail was admitted. According to the satisfaction of the court, each of the Rs 2,500,000 is subject to the delivery of two guarantees - the accused should submit his original passport to the court and no new or duplicate passport should be issued and his name Exit Controls Will Not Be Put on the List - If the bail order causes the trial to be delayed, if the defendant causes a delay in the case, the cancellation will be subject to termination.

PLD 2017 Sindh 120

Before Irfan Saadat Khan and Mohammed Karim Khan Agha, JJ

ATTA ABBAS ZAIDI—Petitioner

versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB) and 2 others—Respondents

Constitutional Petition No.D-1865 of 2016, decided on 3rd October, 2016.

(a) National Accountability Ordinance (XVIII of 1999)—

—Ss. 9 (b) & 16(a)—Corruption and corrupt practices-—Bail, grant of—Bail on the ground of delay in conclusion of trial—Hardship— Scope—Statutory bail on account of delay was a right—Hardship case although involving delay was not a right and was in the discretion of the Court—Bail on the basis of hardship would depend on the particular facts and circumstances of each case to determine whether case qualified as a hardship case—Accused had completed 14 months in jail on account of trial not being completed due to no fault of his— Only one out of 10 prosecution witnesses had been examined and there were 38 accused—Trial of the case might take at least one year to complete—Accused had made out a case of bail on hardship grounds— Right to an expeditious trial should be meaningful and fully applied to protect the under-trial prisoner from prolonged period of detention during his trial due to no fault of his—Accused was admitted to bail on the ground of hardship subject to furnishing two sureties each of Rs.2,500,000/- to the satisfaction of Court—Accused should surrender his original passport to the Court and no fresh or duplicate passport be issued to him and his name should be placed on Exit Control List—Bail granting order would be subject to cancellation, if accused caused any delay in the trial, [pp. 130, 132, 133, 135] A, C, D, E & F

Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607; Muhammad Bashir v. The State 1987 PCr.LJ 230; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; Mian Manzoor Ahmed Wato v. The State 2000 SCMR 107; Sanjay Chandra and others v. Central Bureau of Investigation 2012 SCMR 1732 SC India; Makhdoom Javed Hashmi v. The State 2003 PCr.LJ 266; Amir v. The State 1991 PCr.LJ 534; Razia Bibi v. The State 2011 YLR 1008; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Munawar Hussain Mang v. The State 2000 SCMR 1585; Imran Amin v. The State 2002 MLD 1416; Nazir Hussain v. Ziaul Haq 1983 SCMR 72; Barkhurdar v. Liaqat Ali and others PLD 1977 SC 434; Muhammad Aslam v. The State 1999 SCMR 2147; Fazal Rehmat v. Naqshay and others 1997 SCMR 1579; Muhammad Afzal Butt v. The State 2015 SCMR 1696 and Muhammed Jahanghir Badar v. State PLD 2003 SC 525 ref.

Syed Mansoor Ali v. Chairman NAB PLD 2016 Sindh 41; Ali Anwar Ruk v. NAB 2015 YLR 216; Noor Muhammad v. NAB (C.P. 2876/2015 dated 24-8-2016; Bakht Zameen v. Chairman NAB W.P. 3447/2015 dated 3-3-2016; Haji Ghulam Ali v. State 2003 SCMR 597; Hamesh Khan v. NAB 2015 SCMR 1092; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Riasat Ali v. Ghulam Muhammad and The State PLD 1968 SC 353; Gul Hasan Penhyar v. The State 1997 SCMR 390; Muhammad Azim v. The State 2009 PCr.LJ 1314, Hashim v. The State 2009 YLR 1777; Shah Nawaz v. The State 2010 YLR 3182 and Anwar Ali v. The State 2002 PCr.LJ 186 rel.

(b) National Accountability Ordinance (XVIII of 1999)—

—Ss. 9(b) & 16(a)—Constitution of Pakistan, Arts.10-A & 199— Bail—Statutory delay—Scope—Hardship case—Factors to be considered.

Although, no hard and fast rule can be set out as to what might amount to a hardship case in NAB cases, as opposed to other criminal cases where statutory bail on the ground of delay is applicable, as each case will depend upon its own particular facts and circumstances.

Following are the considerations/factors to be kept in mind for grant of bail in a hardship case;

(a) the time spent in custody without completion of the trial.

(b) that delay in the completion of the trial should not have been caused by any fault of the accused or someone acting on his behalf.

(c) the right to an expeditious trial without undue delay as guaranteed by Article 10(A) of the Constitution especially bearing in mind the Preamble to the National Accountability Ordinance, 1999 requiring speedy trials and S. 16(a) of the National Accountability Ordinance, 1999 which requires trials to proceed on a day to day basis and be completed within 30 days.

(d) that as pointed out by the Supreme Court in the recent case of Ziagham Ashraf v. State (2016 SCMR 18) that if an accused is acquitted at trial then no reparation or compensation can be awarded to him in respect of the time he has spent in jail. It is lost time which may have been spent with his family or in other useful pursuits.

(e) whether there was a reasonable chance of the trial being completed within 6 months of the date of this order which might justify giving appropriate directions to the Accountability Court rather than enlarging the accused on bail.

(f) whether the charge had been framed yet.

(g) whether a majority of the Prosecution witnesses had at the time of hearing the petition been examined.

(h) how many Prosecution witnesses were left to be examined.

(i) whether there were more than 7 accused left in the reference (some of the original accused may have entered into plea bargain or been declared proclaimed offenders).

(j) whether the loss to the exchequer had been made up or otherwise how substantial was the loss bearing in mind the time already spent in jail.

(k) whether the post arrest bail of the accused had been declined on merits.

(l) whether the accused was the main accused in the case.

(m) whether the accused was of an advanced age.

(n) whether the accused suffered from any serious medical conditions.

(o) the general principle that bail should not be withheld as a punishment.

(p) the chances of the accused absconding and/or interfering with witnesses if he is enlarged on bail.

(q) whether the accused has been convicted before under any Anti corruption legislation or entered into a plea bargain or voluntary return.

(r) Whether the circumstances leading to the delay could be said to amount to an abuse of the process of law.

(s) And finally in constitutional and discretionary jurisdiction under Article 199 of the Constitution the requirement that High Court does complete and substantial justice, [p. 131] B

Shoukat Hayat for Petitioners.

Noor Muhammad Dayo, ADPGA (NAB) for Respondents.

Dates of hearing: 23rd August and 8th September, 2016.

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