2022 PLP 127 (YLRN)

MOHAMMAD KARIM KHAN AGHA, J.

Petitioners Mushtaq A. Qaisar son of Muhammid Shafi and Shaukatullah son of Gullu Khan have moved these petitions for post arrest bail on hardship grounds. They were both booked in NAB Reference No.22 of 2017 for acts of corruption and corrupt practices in essence relating to misappropriation and embezzlement of urea worth millions of rupees which caused a massive loss to the exchequer and illegally benefitted others which reference is proceeding before the accountability courts in Karachi.

2. Learned counsel for both the petitioner's have contended that they have been in custody for 2 years and 4 months and two years and 7 months respectively and that their trial is no where in sight of conclusion and as such they should be granted bail on hardship grounds. In support of their contentions they have placed reliance on the case of Tallat Ishaq v. National Accountability Bureau (PLD 2019 Supreme Court 112), Sharjeel Inam Memon v. National Accountability Bureau (SBLR 2019 Sindh 1499), Shahid Umar v. Chairman NAB and 2 others (2019 PCr.LJ 370), Syed Manzar Abbas v. National Accountability Bureau, through Director General (2019 MLD 581) and an unreported Judgment decided by Islamabad High Court in W.P. No.4166 of 2019, Muhammad Bilal Sheikh v. National Accountability Bureau through its Chairman, Islamabad and another.

3. On the other hand learned Special Prosecutor NAB has opposed the grant of bail to both the petitioners on hardship grounds as according to him they have not met the legal requirements. In support of his contentions he has placed reliance on Tallat Ishaq v. National Accountability Bureau (PLD 2019 Supreme Court 112)

4. We have heard the parties, carefully reviewed the record and considered the relevant case law including that cited at the bar.

5. Both the petitioners have been in custody for 2 years and 4 months and two years and 7 months respectively. The latest progress report from the trial court reveals that no delay has been caused by either of the petitioners or counsel acting on their behalf. The progress report also reveals that on the arrest of one of the absconding accused the charge was recently reframed and evidence is now being led afresh. So far only two out of the proposed 72 prosecution witnesses (PW's) have given evidence which leaves 70 more PWs to give evidence. This in our view will take at least one year and probably a lot longer especially as we have been informed that the concerned accountability court has been vacant for over 5 months and as such little, if any, evidence is being recorded in that reference which has resulted in the trial virtually grinding to a halt due to no fault on the part of the accused. Rather the delay in filling the vacant posts falls squarely on the shoulders of the Federal Government who instead of ensuring the right to an expeditious trial under Article 10 (A) of the Constitution and per the Preamble to the National Accountability' Ordinance 1999 (NAO) and section 16(a) NAO for reasons best known to itself seems to be unreasonably delaying the appointment of accountability court judges. It is well known that bail cannot be withheld as a punishment and certainly the two petitioners cannot be blamed for the lack of progress in the trial simply because the State is failing to comply with its obligation to speedily prosecute them.

6. With regard to the case of Tallat Ishaq (Supra) which NAB has cited in its objection to granting bail. No doubt Tallat Ishaq's case (Supra) has made the grant of bail more stringent on hardship grounds but it has not excluded it and it is allowed in exceptional circumstances at the descretion of the court. In our view for the reasons discussed above where the petitioners have each spent in the region of two and a half years in jail and no delay has been caused on either their or their lawyers account, that 70 PWs remain to be examined, cross-examined and potentially re examined, section 342 Statements need to be recorded and potentially defense evidence lead and the court has remained vacant for over 5 months and there is no chance of the trial being completed within the foreseeable future we consider that both the petitioners whilst exercising our discretion under Article 199 of the Constitution have made out a case for the grant of bail on hardship grounds.

7. Thus, for the reasons discussed above petitioners Mushtaq A. Qaisar and Shaukatullah are both granted post arrest bail on hardship grounds subject to them each furnishing a solvent surety in the amount of Rs. one million (ten lacs) each and PR in the like amount to the satisfaction of the Nazir of this court.

8. The above petitions stand disposed of in the above terms. SA/M-87/Sindh Bail granted.