P L D 2019 Balochistan 9
Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ
MUHAMMAD HASEEN KHAN AFRIDI ---Petiitoner
versus
NATIONAL ACCOUNTABILITY BUREAU through Director General and 2
others ---Respondents
Constitutional Petition No.106 of 2018, decided on 24th April, 2018.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9 (a) (b) & 16(a)---Constitution of Pakistan, Art. 199---Constitutional petition---
Bail, grant of ---Delay in conclusion of trial ---Petitioner was in custody for about 2- years
without conclusion of trial ---Validity ---Petitioner was behind bars and despite lapse of 2 -
years, Trial Court out of 30 witnesses had only examined 17 witnesses ---No possibility
was in sight that remaining witnesses would be examined and c ase would be concluded in
near future ---Speedy and fair trial was Fundamental Right of accused as guaranteed by
the Constitution--- Policy of criminal law was to bring accused to justice expeditiously
within shortest possible time and to decide fate of case of petitioner as early as possible
and if he was involved in crime, punishment be provided to him and if he was innocent,
he be set at liberty ---Irrespective of heinousness of crime, accused could not be
incarcerated behind bars for indefinite period as delay in concluding trial amounted to
abuse of process of law ---Bail was allowed accordingly.
Riasat Ali v. Ghulam Muhammad and The State PLD 1968 SC 353 and Shoukat
Ali v. Ghulam Abbas and others 1998 SCMR 228 ref.
Aminullah Kakar for Petitioner.
Riaz Akhtar Tareen, Special Prosecutor, NAB for Respondent/State.
Date of hearing: 9th April, 2018.
ORDER
ABDULLAH BALOCH, J. --The petitioner Muhammad Haseen Khan Afridi son
of Muhammad Ibrahim, is seeking bail after -arrest in -case/NAB Reference No.01 of
2015 , under Section 18 (g) read with section 24(b) of the National Accountability
Ordinance. 1999.
2. Facts of the case are that the NAB Balochistan filed a Reference No.01 of 2015
before the Judge Accountability Court, Balochistan Quetta, against the petitioner being, District Food Controller/Incharge PRC Chaman and co- accused Asfand Yar Kakar, Ex -
Minister Food Balochistan, Ali Bakhsh Baloch, Ex -Secretary Food Balochistan, Abdul
Wali Kakar, Ex -Dircctor Food Balochistan with the allegations that all the accused
persons in connivance of each others have committed embezzlement of 100387- bags of
wheat worth Rs.292.878 million from PRC Chaman, District Killa Abdullah and PRC
Chaman at Pishin.
3. It appears from the record that after filing reference and taking cogni zance by the
trial Court, the trial commenced and so far the statements of 17 witnesses have been recorded. Earlier the petitioner filed C.P.1164 of 2015 for grant of bail before this Court, which was rejected vide order dated 14th June 2016. The petitione r again filed C.P.
No.223 of 2017, which was also rejected vide order dated 26th April 2017. Thereafter, the petitioner approached the Hon'ble Supreme Court by filing Civil Petition No.39- Q of
2017, which was also dismissed as not pressed. However, the tri al Court was directed to
expedite the trial and to conclude the same within the period of six months, vide order dated 10th August 2017. Since, the trial has not been concluded, thus again the petitioner approached this Court for grant of bail.
4. Learned counsel for the petitioner contended that despite specific directions of the
Hon'ble Supreme Court, the learned trial Court has failed to comply with the said orders and so far out of thirty witnesses, only the statements of ten witnesses have been recorded; that the petitioner is behind the bars since November 2015 and despite lapse of 2-1/2 years, the prosecution has failed to conclude the trial, thus on statutory ground
alone, he is entitled for grant of bail; that all the accused persons excluding the petitioner have been released on bail, thus the rule of consistency demands equal treatment; that the petitioner is an old and ailing person suffering from different diseases and incarcerated in Jail Ward, where there is no one to care and properly look aft er the petitioner, due to
which the health of the petitioner is being deteriorated day by day, thus on medical as well as on humanitarian grounds, he is entitled for grant of bail.
5. Learned Special Prosecutor NAB, strongly opposed the arguments so advanc ed by
the learned counsel for petitioner and contended the petitioner is involved in an heinous crime of corruption and corrupt practices and due to his connivance, the government sustained huge losses worth hundreds of millions; that the delay so occasioned in concluding the trial is not on the part of the prosecution, thus he is not entitled for grant of bail on statutory grounds: that the petitioner is being provided all medical facilities in Jail ward as he is not suffering from any such kind of disease that cannot be treated in jail
ward; that the case of petitioner is distinguishable from the case of co -accused persons,
who have been granted bail; that sufficient incriminatory evidence is available on record connecting the petitioner with the commissio n of crime, thus he is not entitled for
concession of bail at this stage.
6. Heard the learned counsel and perused the available record. Perusal of record
reveals that earlier on rejection of his bail by this Court, the petitioner approached the Hon'ble S upreme Court of Pakistan through Civil Petition No.39- Q of 2017 which was
disposed of with the directions to the trial Court to conclude the trial within the period of six months and also to proceed on a day -to-day basis. The perusal of record reveals that
the trial Court has failed to comply with the directions of the Hon'ble Supreme Court to conclude the trial within the stipulated period or fixed the cases on day -to-day basis. The
petitioner is behind the bars since November 2015 and despite lapse of 2- 1/2 years, the
trial Court out of 30- witnesses has only examined 17- witnesses and there is no possibility
that the remaining witnesses be examined and case be concluded in near future, whereas speedy and fair trial is the fundamental right of every accused as guaranteed by the Constitution. The policy of criminal law is to bring the accused to justice expeditiously
within the shortest possible time and to decide the fate of his case as early as possible so
that if he is involved in the crime, punishment be provided to him and if he is innocent, he may be set at liberty. Irrespective of the heinousness of the crime, no accused could be incarcerated behind the bars for indefinite period as delay in concluding trial amounts to abuse of process of law. The Hon'bl e Supreme Court in the case of Riasat Ali v. Ghulam
Muhammad and The State (PLD 1968 SC 353), has held that, "Delay in prosecution of accused amounts to abuse of process of law and is a valid ground for bailing out accused. however delay in prosecution of each case as a ground for bail is to be weighed and judged, in each case on its merits." While, in the case of Shoukat Ali v. Ghulam Abbas and others 1998 SCMR 228, the Hon'ble Supreme Court of Pakistan has held as follows:
"It appears that by the time, the accused/respondents were released on bail, period of their incarceration had almost exceeded two years and admittedly their trial had not concluded till then. It has not concluded even till today. Confronted with this position learned counsel for the petitioner sought to argue that some delay was
also caused owning to the non- appearance of the accused, who were placed in
column No.2 of the challan and were summoned by the Court. Learned counsel was unable to give us the exact period of delay so caused and even otherwise, the delay, if any caused on account of non- appearance of the co -accused of the
respondents could by no stretch of reasoning be attributed to the latter. Needless to observe that such delay could not he said to have been occasioned by any act or omission of the accused/respondents or any person acting on their behalf"
7. For the above reasons and even without touching the merits of the case we are
inclined to allow this petition. Resultantly, the petitioner Mu hammad Haseen Khan Afridi
son of Muhammad Ibrahim is granted bail subject to furnishing bail bonds in the sum of
Rs.5 milion wih two surties of equivalent amount of Rs.2.5 Million, to the satisfaction of Additional Registrar of this Court.
The observation s made hereinabove are tentative in nature and the same shall not
influence the merits of the case.
MH/48/Bal. Bail allowed.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,
let us know.