2020 PLP 2139 (YLR)

ABDUL MOBEEN LAKHO, J.

By this common order, we intend to dispose of the captioned petitions filed by Petitioner Syed Azhar Hussain in C.P.No.D-2887 of 2018 and petitioner Shah Abdul Qadir in C.P.No.D-5908 of 2018 seeking post arrest bail, in the above petitions arising out of National Accountability Bureau (NAB) Reference No.24/2015 which has been filed by NAB against the petitioners.

2. This is a reference concerning cheating of the public at large whereby the petitioners and other co-accused duped innocent investors into investing in their business on the basis that it was a Shariah complaint product and huge rewards could be reaped by the investors, In the event the petitioners and other co-accused misappropriated the money of the investors who are now claiming return of the same.

3. Two bail applications have already been dismissed by this court vide orders dated 04.05.2016 and 23.01.2018 on merits respectively and in para. 24 of order dated 04.05.2016 as set out below for ease of reference the following directions were given by this Court to complete the trial within 03 months of the date of this order which time has passed long ago: - "

24. We however direct the Accountability Court hearing this reference to immediately record the evidence of the witnesses who directly implicate the petitioners and complete the trial of the reference within three months from the date of this order a copy of which the office shall immediately provide to the concerned Accountability Court".

4. Learned counsel for the petitioner in C.P.No.D-2887/2018 argued that the petitioner was carrying on his business strictly in accordance with law; that there is not a single witness who claims that he had paid the amount directly to the petitioner/accused for investment nor prosecution has produced any document showing that petitioner entered into the alleged agreement with any of the affectees; that it is a pure case of hardship as the petitioner/accused has been confined in jail since his arrest on 15.5.2015, making it 04 years and 09 months and it seems that the trial would not be concluded in near future. In the circumstances the bail cannot be withheld as a punishment and nobody could be kept in jail for an indefinite period. The case diaries show that out of 114 dates only 09 adjournments have been sought by the petitioners. The learned counsel relied upon 2002 SCMR 282 (Mohammad Saeed Mehdi v. State and others). Lastly, the learned counsel argued that the Hon'ble Supreme Court was pleased to grant bail to one of the co-accused namely Ehsan Ullah Shah vide order dated 24.04.2018 in the sum of Rs. 1 crore and 43 lac being the total liability alleged against the petitioner. Hence the petitioner is entitled to the same relief keeping in view the rule of consistency especially as the petitioner played a similar or lesser role and is prepared to deposit the extent of his liability with Chairman NAB until final disposal of the reference.

5. Learned counsel for the petitioner in C.P. No. D-5908/2018 argued that the date of arrest of the petitioner is 15.5.2015, Since, the petitioner has spent more than 04 years and 09 months in Jail, he is also entitled to bail on hardship grounds particularly when out of 338 witnesses only 12 witnesses have been examined and conclusion of the trial is no where in sight. He has also sought bail based on the rule of consistency and he too is prepared to deposit the extent of his liability with Chairman NAB until final disposal of the reference.

6. Conversely, learned Special Prosecutor, NAB has opposed the stance taken by the counsels for the petitioners and submitted that this is not a case of hardship, that the rule of consistency is not applicable and cases of cheating public at large no bail is allowable. In support of his contentions he has placed reliance on Ch. Muhammad Ashfaq v. State (2015 SCMR 1716) and Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112). He stated the liability of the petitioner No.1 was Rs.101,700,000/- (Rupees ten crore and seventeen lac) and the liability of petitioner No.2 was Rs.1,50,00,000/- (Rupees one crore and fifty lac).

7. Only tentative assessment of the material placed before us has to be made and this order shall not prejudice the case of any party at trial whose case shall be decided on merits based on the evidence produced before the trial Court.

8. We have considered submissions of the parties and perused the material available on record.

9. Keeping in mind the findings made in the latest pronouncement of the Hon'ble Supreme Court of Pakistan in PLD 2019 SC 112 (Tallat Ishaq v. National Accountability Bureau through Chairman and others) on the grant of bail on hardship grounds we accept that the grand of bail on such ground is to be sparingly exercised and only in cases of shocking and unconscionable delay and that bail on hardship grounds is very restrictive. Nevertheless, Tallat Ishaq's case (supra) did not completely exclude bail on hardship grounds which is a discretionary relief under Article-199 of the Constitution.

10. Admittedly, the petitioners are in custody since 15.05.2015 which means that they have been in jail for about 04 years and 09 months which might translate the case of the present petitioners into a case of hardship especially as the conclusion of the trial is not in sight with some witnesses having to come from other provinces.

11. In any event we do not have to determine whether the petitioners are entitled to bail on hardship grounds or not, since in our view the rule of consistency is applicable in this case on the basis that one of the co-accused who has a similar role as the petitioners has already been granted bail by the Hon'ble Supreme Court in its order dated 24.04.2018 which is set out below for ease of reference: ORDER "EJAZ AFZAL KHAN, J.

Petitioner who is facing a reference before the Accountability Court and has been in jail ever since 15.05.2015 when failed to get the concession of bail from the High Court moved this petition on the ground that he has been in jail for almost three years yet conclusion of his trial in near future is not in sight and that if at all the petitioner has a culpable role in the crime he is ready to deposit the amount he could possibly be saddled with at the end of the trial. Learned Special Prosecutor, NAB contended at the bar that total liability made out against the petitioner according to the Police Statement of the Banking expert approximately goes to the tune of Rs. 1 crore and 43 lac and that he being prima facie connected with a crime attracting prohibitory clause does not deserve the concession of bail. We have gone through the record and considered the submissions of the learned ASC for the petitioner as well as learned Special Prosecutor, NAB. According to the tentative calculation thus for made the amount the petitioner could possibly be saddled with is Rupees 1 crore and 43 lacs. The petitioner is ready to deposit this amount with the Trial Court. Apart from this petitioner has been in jail for almost three years yet conclusion of his trial is not in sight. In the circumstances, it would be rather unjust to keep him in jail for an indefinite period of time. We thus, convert this petition into an appeal, allow it and admit the petitioner to bail if he deposits the amount of Rupees 1 crore and 43 lacs with the trial Court".

12. Thus based on the rule of consis-tency we hereby grant post-arrest bail to:

1. Petitioner Syed Azhar Hussain subject to his furnishing solvent surety in the sum of Rs.10,00,000/- (Ten lac) and PR bond in the like amount to the satisfaction of the Nazir of this Court and depositing Rs.10,17,00,000/- (Rupees ten crore and seventeen lac) with concerned trial Court.

2. Petitioner Shah Abdul Qadir subject to his furnishing solvent surety in the sum of Rs.10,00,000/- (Ten lac) and PR bond in the like amount to the satisfaction of the Nazir of this Court and depositing Rs.1,50,00,000/- (Rupees one crore and fifty lac) with concerned trial Court.

13. The petitions are disposed of in the above terms. SA/A-44/Sindh Bail grante