Hardship case

2022 YLR 2452 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9(a)(ix) & 9(b)Constitution of Pakistan, Art. 199Constitutional petitionBail, grant ofHardship caseAdjournment, grant ofEffectAccused persons were in custody for about more than four years on the allegation of cheating members of public at largeValidity

Adjournment was sought and was granted by Court unconditionally without any direction to further trial on next date and prosecution failed to raise any objection effectively over it nor made any vigorous effort to check such conduct

Such adjournment diluted role, if any, of accused in effectuating delay in trial to a considerable extent

Not only the accused but Trial Court by failing, consciously or unconsciously, to realize consequences of such charity and prosecution by content onlooker had become privy to a great extent, to delay in the trial

Both the accused were in jail for a considerable time and looking at the pace of the trial wherein only one witness had been examined till then

Prosecution was likely to take long time to conclude the case and composition which was detrimental to right of accused person to expeditious trial guaranteed under the Constitution

Accused persons were entitled to a relief of bail, a temporary arrangement which was subject to final outcome of case, in any case

Bail was allowed, in circumstances.

2022 YLRN 16 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9(a) & 9(b)Constitution of Pakistan, Art. 199Constitutional petitionBail, grant ofHardship caseMedical groundPsychiatric issuesAccused was in custody for about 3½ years and his earlier bail application was dismissed on meritsPetitioner sought his bail on the ground of hardship and psychiatric ailmentValidity

Share of loss attributed to accused was only 43 lacs which was relatively petty amount and did not fall within the mandate of NAB, which was to deal with mega corruption cases dealing with losses running into millions if not billions of rupees

Accused was suffering from severe psychiatric issues and according to his medical report it was very difficult to treat him in jail for his mental health issues

Continued detention of accused in jail might be hazardous to his health

Bail was allowed, in circumstances.

2021 PLD 489 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 7 & 12Drug Pricing Policy, 2018, cl. 9(5)Drug pricingHardship caseStatutory period

Petitioners were manufacturers of different medicines and were aggrieved of inaction of Drug Regulatory Authority of Pakistan (DRAP) in fixing Maximum Retail Price (MRP) of their products in question

Validity

If hardship applications were not attended to by DRAP in a timely manner or if after due consideration of an application by DRAP, Federal Government did not act within the envisaged timeframe so as to notify prices as per referral made, then applicant could increase its MRP up to the level recommended by DPC of DRAP

Such option could only be exercised once in three years

Specified time frame had lapsed so as to trigger inbuilt mechanism for increase in price by petitioners

High Court directed the authorities to make final decision in relation to MRP of the products in question within a period of 30 days

High Court restrained the authorities from taking any coercive action against petitioners during the pendency of proceedings

Constitutional petition was allowed accordingly.

2021 PCrLJ 24 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 9Constitution of Pakistan, Art. 199Colonization of Government Lands (Sindh) Act (V of 1912), S. 24-ACorruption and corrupt practicesResumption of land to Provincial GovernmentBail, grant ofHardship caseScope

Prosecution case was that the land was allotted to Municipal Corporation in the year 1960 on two conditions, i.e. shifting of wool washing tanneries and payment of malkhano; that the land was not properly leased out nor the malkhano was paid; that the land was resumed by the Provincial Government in the year 1993, therefore, employees of Municipal Corporation were not entitled to lease out the land

Accused persons seeking post-arrest bail had been in jail for over 2 years; no witness had been lead in the case so far; there were 56 witnesses on the calendar of witnesses and 15 accused with each separate counsel meaning thereby that each of 56 prosecution witnesses would be subject to 15 separate cross-examinations, which would take a considerable amount of time and the trial was unlikely to conclude in the near future

Petitions for grant of post-arrest bail were allowed.

2019 PCrLJ 370 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.9(a)(iv)(vi) & (b)Criminal Procedure Code (V of 1898), S.497Constitution of Pakistan, Art. 199Constitutional petitionBail, grant ofHardship caseDelay in conclusion of trialPrinciple of consistencyApplicability

Petitioner/accused facing trial under National Accountability Ordinance, 1999 had been in custody for the past 2 years and 3 months without conclusion of trial

Delay in conclusion of trial was not attributed to petitioner

Effect

No provision existed in National Accountability Ordinance, 1999 for statutory bail on account of delay which under S. 497, Cr.P.C. was a right whereas hardship cases were at discretion of court based on particular facts and circumstances of cases

Order passed by High Court had to strike a fair balance in determining factors/considerations in hardship cases in National Accountability Bureau matters whilst exercising its discretion bearing in mind that even a murder could be granted statutory bail as of right provided that requirements of S. 497, Cr.P.C. were met and he might be subject to death penalty on conviction compared to a maximum sentence of 14 years in jail in National Accountability Bureau cases whilst accepting that corruption was a serious crime and a major menace to society

Two of the other co-accused having a similar role as petitioner were granted bail on hardship grounds

High Court keeping in view rule of consistency and in exercise of discretionary powers found petitioner's case as one of hardship

Bail was allowed in circumstances.

2018 YLR 134 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 9(a) & (b)Constitution of Pakistan, Art. 199Constitutional petitionBail, grant ofDelay in trialMedical groundHardship case

Petitioner was accused facing trial under National Accountability Ordinance, 1999, who was a patient of Hepatitis "C" and had been in custody for more than two years

Validity

Petitioner was an ailing person who was suffering from various ailments including diabetes, hepatitis "C" and liver cirrhosis

Main accused persons had already been released either on bail or on their having entered into plea bargain / voluntary return

Material witnesses were yet to be examined by prosecution and there was no possibility that trial could be concluded at an early date

Prosecution witnesses so far examined did not directly implicate petitioner with commission of alleged offence and the same required further evidence to prove guilt of petitioner after conclusion of trial

Petitioner had made out a case of further inquiry and he was no more required for further investigation, as prosecution had already obtained evidence / material in respect of reference in question

Challan was submitted and trial was proceeding before Accountability Court and there was no possibility that petitioner, if released on bail would tamper with the evidence

Bail could not be withheld as punishment, particularly when matter required further inquiry

Petitioner had already faced agony of prolonged inquiry, investigation and he was confined in jail during trial for a period of almost more than two years

Case of petitioner was one of further inquiry as well as hardship in view of his serious ailments and inordinate delay in conclusion of trial, which could not be attributed to petitioner, whereas prosecution story could not be considered as free from doubt

Bail was allowed in circumstances.

2018 PCrLJ 1607 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9(a)(iv)(vi) & (b)Constitution of Pakistan, Art. 199Constitutional petitionBail, grant ofHardship caseDelay in conclusion of trial

Petitioners were arrested by National Accountability Bureau for causing embezzlement in government funds; they had been in custody since February, 2017 without conclusion of trial

Validity

Three other stakeholders were also there, in respect of alleged embezzlement, who should have been examined as they were interlinked with one another and nothing could be misappropriated or embezzled without their joint consent

Stakeholders were not examined and no recovery or assets were shown against petitioners

Out of 28 accused persons arrayed in National Accountability Bureau reference, 6 were in jail custody since February, 2017 and charge in the subject National Accountability Bureau reference was framed on 5-3-2018, after lapse of more than a year

No allegation was on record that adjournments were sought by petitioners or their counsel

No witnesses out of 16 witnesses was examined and recording evidence of prosecution would consume considerable time

No likelihood existed that trial would be concluded in near future in view of speed, velocity and pace of trial

Object of trial was to make an accused to face trial and not to punish an under-trial prisoner

Basic idea of trial was to enable accused to answer criminal proceedings against him rather than to rot him behind bars

Petitioners were entitled to expeditious access to justice which included a right to fair trial without any unreasonable delay

Entire case of prosecution revolved around documentary evidence which was already in its possession and petitioners were no more required for further investigation

No likelihood of tampering of evidence by petitioners as same was already collected by National Accountability Bureau

Bail was allowed in circumstances.

2018 PCrLJN 212 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 9(a)(vi) & (b)Constitution of Pakistan, Art. 199Constitutional petitionBail, grant ofDelay in conclusion of trialHardship case

Petitioner was arrested by National Accountability Bureau for causing significant loss to national exchequer by processing lease files illegally

Contention of petitioner was that he had been in continuous detention for almost 2-1/2 years without conclusion of trial

Validity

Trial against petitioner was proceeding expeditiously and was likely to conclude shortly, provided that accused did not cause any further unnecessary delay

Evidence of Investigating officer was recorded and Trial Court could conclude trial

High Court declined to exercise its discretionary jurisdiction to grant bail to accused on grounds of hardship and rule of consistency

High Court directed Trial Court to complete trial in six weeks

Bail was declined in circumstances.

2017 PCrLJ 1276 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(a) & (b)Criminal Procedure Code (V of 1898), S. 497Bail, grant ofSecond bail applicationStatutory delayHardship case

Petitioner was arrested by National Accountability Bureau on the allegation of corruption and corrupt practices and his earlier bail was refused by High Court

Petitioner again invoked jurisdiction of High Court for his release on bail on the plea of statutory delay in conclusion of trial

Validity

Plea of bail on merits had already been turned down by High Court, therefore, there was no need to re-dilate upon merits of the case

Provisions of S. 497, Cr.P.C. were not applicable for grant of bail to accused persons facing charges in cases under National Accountability Ordinance, 1999, however, broader principles of S. 497, Cr.P.C. could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerating in jail for a shockingly long period

Investigation in the case was complete and accused was no more required for further interrogation, who had been languishing in jail for last two years

No material was available to show that it was the petitioner who occasioned delay in conclusion of trial

Case of petitioner fell within the ambit of hardship case

Bail was allowed in circumstances.

2017 YLR 2451 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 9(b)Bail, grant ofDelay in conclusion of trialHardship caseSecond direction

Petitioner was arrested by NAB and he sought bail on the ground of delay in conclusion of trial despite lapse of direction issued to Trial Court by High Court

Validity

Accused had been in jail for about 19 months (once adjournments by petitioner were considered) and loss caused was of a high amount

Only one prosecution witness was left to record his statement, and there was only one accused (i.e. petitioner) to cross examine said witness

Petitioner did not meet requirements of a hardship case as the reference could be decided expeditiously by Trial Court through a further direction from High Court to such effect

Petition was dismissed in circumstances.

2017 YLR 1793 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9(b) & 16(a)Constitution of Pakistan, Art. 199Constitutional petitionBail, refusal ofDelay in conclusion of trialHardship caseAccused had been in custody for more than 18 months without conclusion of trialPlea raised by accused was that delay in conclusion of trial was not attributed to himValiditySix accused persons and thirteen prosecution witnesses were left to be examinedCharge had been framed and trial was proceeding

High Court declined to assume that two absconders could be arrested and charge was reframed and trial would start afresh, as such circumstances could never arise

High Court directed the Trial Court to hear the case on day-to-day basis and not to adjourn the same on any flimsy ground and that case be decided within six months without considering the case that of hardship

Bail was refused in circumstances.

2017 PLD 120 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9(b) & 16(a)Constitution of Pakistan, Arts.10-A & 199BailStatutory delayScopeHardship case

Factors to be considered.

2015 PLD 15 SUPREME-COURT Judicial Precedent

Hardship caseSubstantial justice by courtTechnicality of law

For doing substantial justice in the true sense in a hardship case, technicality of law and rule shall not operate as an absolute bar in the way of the court because giving preference to the technicality of law would defeat substantial justice.

2015 PLD 15 SUPREME-COURT Judicial Precedent

Ss. 35 & 397Conviction of several offences at one trial or different trialsSentences of imprisonmentHardship caseDiscretion of court

Concurrent running of sentences-Provisions of Ss. 35 & 397 Cr.P.C. widened the scope of discretion the court to direct that sentences of imprisonment or that of life imprisonment awarded at the same trial or at two different trials but successively, shall run con currently

Once the legislation had conferred the said discretion in the court, then in hardship cases, courts were required to seriously take into consideration the same to the benefit of the accused so as to minimize and liquidate hardship treatment

Court of law could not fold up its hands to deny the benefit of Ss.35 & 397, Cr.P.C. to an accused person as denial would amount to ruthless treatment.