2016 P Cr. L J 895
[Balochistan]
Before Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ
MUHAMMAD ARIF ---Petitioner
Versus
The NATIONAL ACCOUNTABILITY BUREAU through Director -General, Cantt.,
Quetta ---Respondent
C. P. No. 682 of 2015, decided on 4th January, 2016.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(b), 18(g) & 24(b) ---Corruption and corrupt practices ---Bail sought on the ground of
delay in conclusion of trial ---Scope ---Accused was arrested by Nation al Accountability Bureau
on the allegations that he used ATM cards of other account holders for encashment of crime
proceeds ---Validity ---Trial Court adjourned the matter due to non- appearance of counsel of the
accused or on his request ---Delay at the tria l had occasioned due to conduct of counsel of the
accused ---All the offences under National Accountability Ordinance, 1999 were non- bailable ---
Bail could not be granted under S. 497, Cr.P.C. to an accused facing charges under National
Accountability Ordina nce, 1999---Accused could not claim grant of bail as a right on the
statutory ground of delay in conclusion of trial ---High Court in exercise of constitutional
jurisdiction, could exercise power for granting bail to an accused for offences under National
Accountability Ordinance, 1999 in appropriate circumstances ---Such power of High Court was
discretionary in nature ---Accused remained fugitive from law as he did not associate/cooperate
during the inquiry as well as investigation ---Sufficient material/evide nce was available against
the accused and discretionary power for grant of bail on the ground of delay in conclusion of trial
could not be exercised in favour of accused--- Trial Court was directed to fix the case on weekly
basis and examine maximum possibl e prosecution witnesses on each date of hearing and
conclude the trial within a specified period ---Constitutional petition was dismissed in
circumstances.
Kaleemullah Quresh for Petitioner.
Muhammad Afzal Harifal, Senior Prosecutor NAB for Respondent .
Date of hearing: 23rd December, 2015.
ORDER
NAEEM AKHTAR AFGHAN, J. ---This order disposes of Constitution Petition
No.682/2015, whereby the petitioner is seeking bail in NAB Reference No.01/2013 on the
ground of delay in conclusion of the trial.
2. Facts of the case are that on the complaint of Haji Allah Dad, Haji Shah Zaman, Col: (R)
Muhammad Ishaq and members of the general public regarding cheating in the name of fake
lotteries of winning cars in draws and receiving different amounts towards transportation charges
and Excise and Taxation charges of the vehicles by Riaz Hussain Gailani and others, inquiry was
initiated by National Accountability Bureau ("NAB") in March, 2011. During inquiry it
transpired that the petitioner and co- accused Akbar Ali and Muhammad Iqbal were involved in
the offence by using fake names of Riaz Hussain Gailani and others. The inquiry was converted
to investigation in July, 2013. During investigation, co- accused Akbar Ali was arrested and he
recorded his confessional statement under section 164, Cr.P.C. implicating the petitioner as well.
3. On completion of investigation, report was submitted, on the basis whereof, reference
No.01 of 2013 has been filed before learned Judge Accountability -I Quetta (hereinafter "the trial
Court") against the petitioner as well as co -accused under section 18(g) read with section 24(b)
of the National Accountability Bureau Ordinance, 1999 (hereinafter "the Ordinance").
4. Investigation revealed that the petitioner used ATM card of co -accused Akbar Ali at
ATM machine Askari Bank Ltd. Kamra Branch Attock in June 2012. The snaps of ATM users
also confirmed his involvement as beneficiary of the crime proceeds. It further revealed that he
used numerous ATM cards of other account holders, f or encashment of crime proceeds. During
investigation it transpired that an amount of Rs.3.607 million was received by the petitioner and
same was deposited in his account in Bank Islami Pakistan Ltd Hazaro Branch District Attock.
In para -11 of the refe rence it has been alleged that the petitioner with the connivance of
co-accused has caused loss to the members of public at large and committed offence of
corruption and corrupt practice as defined under section 9(a)(iv)(ix) and (xii) of the Ordinance.
5. The petitioner neither cooperated nor he was arrested during inquiry. During
investigation as well, the petitioner remained absconder and his attendance was not procured
despite repeated process. The petitioner was arrested on 8th March, 2013 i.e. after filing of the
reference dated 6th February, 2013. He was remanded to judicial custody on 25th April, 2013.
The charge was read over to the petitioner by the trial Court on 6th May, 2013, whereafter the
prosecution evidence existence commenced.
6. In the meanwhile, the petitioner filed C.P. No.388 of 2013 before this Court for grant of
bail on merits. The said petition was dismissed by this Court vide order dated 16th July, 2013,
operative portion whereof is reproduced herein below:
"Heard the learned co unsel and perused the available record. The material available on
record reveals that different accounts were opened by the co -accused at the instance of
the petitioner and ATM Cards of all the accounts were handed over to the petitioner by
the co -accused against monthly consideration. All these accounts were operated through
ATM Cards of the co -accused by the petitioner. The prosecution evidence is also
supported by footage of different ATM counters showing the petitioner as using the ATM
Cards and drawing the amounts. The petitioner with the connivance of co- accused got
credits of Rs.27,837,727/ - through different bank accounts while cheating public at large.
Sufficient incriminating material is available on record to connect the petitioner with the
commis sion of offences punishable under section 10 of the NAB Ordinance for
imprisonment up to 14 years and fine. On the basis of the tentative assessment of the
material available on record, the petitioner is not entitled for grant of bail.
For the above reas ons the petition is dismissed. The observations made hereinabove are
tentative in nature and same shall not influence the merits of the case at the trial."
7. The petitioner approached Hon'ble Supreme Court for grant of bail by filing C.P.
No.1343 of 2013, but the same was not pressed on 15th August, 2013 in order to file fresh
application on the ground of delay. The order dated 15th August, 2013 passed by Hon'ble
Supreme Court in C.P. No.1343 of 2013 is reproduced herein below:
"Learned counsel for the petitioner does not want to press this petition in order to file a
fresh application on the ground of delay, therefore, this petition is dismissed as not
pressed."
In view of the above, the instant Constitution Petition has been filed by the petitioner for
grant of bail on the ground of delay in conclusion of the trial.
8. Learned counsel for the petitioner stated that despite arrest of the petitioner on 8th March,
2013 and framing of charge on 6th May, 2013, after lapse of more than two years, the trial
against the petitioner has not yet been concluded; that in view of the long list of remaining
prosecution witnesses to be examined at the trial, there is no likelihood of early conclusion of the
trial in the near future; that inordinate delay in conclusion of the trial is not attributed to the
petitioner; that according to th ird proviso of section 497(1), Cr.P.C. the petitioner has statutory
right for grant of bail as his trial for offences under the Ordinance punishable upto 14 years has
not concluded despite being in continuous detention for more than two years; that the pet itioner
is not responsible for the delay occasioned in concluding the trial.
9. Learned DPG NAB strongly opposed the grant of bail to the petitioner on the ground of
delay in conclusion of trial. While relying upon section 9(b) of the Ordinance learned D PG NAB
stated that the offences under the Ordinance are non -bailable in nature and the petitioner cannot
claim bail on the statutory ground of delay in conclusion of trial under third proviso of section
497, Cr.P.C.
10. Heard the learned counsel and peru sed the available record. So far, eighteen (18)
prosecution witnesses have been examined at the trial and according to statement of learned DPG
NAB made before this Court on 18th November, 2015, forty five (45) more prosecution
witnesses are yet to be exam ined at the trial.
With the able assistance of learned counsel for the petitioner, the record of the trial Court
was perused. It reveals that on 13.06.2013, 08.07.2013, 23.07.2013, 07.08.2013, 22.08.2013,
01.10.2013, 24.10.2013, 02.01.2014, 27.03.2014, 04.06.2014, 16.06.2014, 20.08.2014,
17.09.2014, 30.09.2014, 18.11.2014, 01.12.2014, 17.12.2014, 30.12.2014, 06.01.2015,
03.02.2015, 14.05.2015, 24.06.2015, 18.09.2015 and 20.11.2015, the trial Court adjourned the
matter due to non -appearance of learned cou nsel for the petitioner (defense counsel) or on his
request. It reveals that almost nine months delay at the trial has occasioned due to conduct of
learned counsel for the petitioner. Hence, the petitioner is responsible for contributing delay of
nine mont hs at the trial.
11. Section 9(b) of the Ordinance lays down that all the offences under the Ordinance are
non-bailable and bail cannot be granted under section 497, Cr.P.C. to an accused facing the
charges under the Ordinance. Hence, the petitioner cann ot claim grant of bail as a right on the
statutory ground of delay in conclusion of the trial under third proviso of section 497(1), Cr.P.C.
However, according to settled principles of law, the High Court in exercise of its Constitutional
Jurisdiction unde r Article 199 of the Constitution of Islamic Republic of Pakistan, 1973
(hereinafter the "Constitution") can exercise power for granting bail to an accused for the
offence(s) under the Ordinance in appropriate circumstances. The grant of bail to an accused for
the offence(s) under the Ordinance by this Court in exercise of its Constitutional jurisdiction
under Article 199 of the Constitution is discretionary in nature.
It cannot be ignored that the petitioner remained fugitive from law as he did not
associate/cooperate during inquiry as well as investigation despite repeated process and he was
arrested subsequent to the filing of the reference.
12. In the above circumstances, in view of the nature of offence, the incriminating
evidence/material availabl e on record and in view of strong apprehension of absconsion of the
petitioner, we are not inclined to exercise discretionary power under Article 199 of the
Constitution for grant of bail to the petitioner on the ground of delay in conclusion of the trial.
14(sic.) For the above reasons, the Constitution Petition is dismissed. However, the trial Court is
directed to fix the case on weekly basis and to examine maximum possible prosecution witnesses
on each date of hearing and to conclude the trial at the earliest, possibly within a period of six
months of receiving copy of this order.
ZC/21/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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