Bail in Anti-corruption Cases in Pakistan

Tweet about this on TwitterShare on StumbleUponEmail this to someoneShare on RedditShare on LinkedInShare on Google+Share on Facebook

“ARTICLE ON CORRUPTION AND LEGAL PRINCIPLES HOW AN ACCUSED IS RELEASED FROM JAIL”

“BAIL/RELEASE IN ANTI CORRUPTION CASES IN THE LIGHT OF National Accountability Ordinance (XVIII of 1999).

Bail is concession for those accused who has been charged with the offenses but it is the subject to the permission of judicial powers. It is the golden principle of law says, an accused is the favorite child of law until the allegation against him proofed.

The basic history behind the principle of bail is that to save the innocent from the suffer and sentence until the charges being proofed but it is prima faci rule that it is concession and it is cannot be claimed as ultimate right furthermore its fate incurred as per facts of each case and it cannot be treated as likewise for all.

History of  National Accountability Ordinance (XVIII of 1999), says that when the money from the government treasury has been illegally received by almost the government officers in there private bank accounts so for the mitigation of such illegal mall practice in public official and for safe guard of public property under the control of public official of Pakistan this Act was brought in to field under which the most of the public official holding high posts in the government has been captured than plea bargain formulae was proceeded to make recovery to the government and minimize the government public property.

“This poetry says, that all the real faces of every men be disclosed at the end of the life story.”

Some important definition and ingredient of National accountability bearue is explained In 2013 Pakistan Criminal. Law Journal  974 [Peshawar] case titled Syed ABID HUSSAIN SHAH and 9 others—Petitioners Versus CHIEF SECRETARY, N.-W.F.P., PESHAWAR and 7 others—Respondents
Writ Petition No.40 of 2010, decided on 1st December, 2011.

“(a) National Accountability Ordinance (XVIII of 1999)—
—-S. 25(a)—Voluntary return—Object, purpose and scope—Intricacies and complications
involved in ‘white collar crime’ cannot be dealt with effectively, through traditional methods of
inquiry and investigation—Concept of ‘voluntary return’ has gained significance in investigative
techniques used in various jurisdictions.
(b) National Accountability Ordinance (XVIII of 1999) —
—-Preamble—National Accountability Bureau—Functions of the Bureau can be divided into
three different categories namely: detection, investigation and prosecution.
(c) Words and phrases—
—-“Voluntary”—Meaning.
The Oxford Dictionary and Black’s Law Dictionary rel.
(d) National Accountability Ordinance (XVIII of 1999)—
—-S. 25(a)—Voluntary return—Pre-conditions—No duress, coercion or threat to be imposed by
any officer of NAB upon the person, who is under ‘inquiry’, so as to extract commitment of
‘voluntary return’, stipulated under S. 25 of National Accountability Ordinance, 1999—Voluntary
return is simply an ‘offer’ made by person concerned, which if ‘accepted’ by NAB would
constitute valid contract, the ‘consideration’ of which is return of illegal gains made by persons to
NAB and finally to respective department of government.
Syed Ali Nawaz Shah v. The State PLD 2003 SC 837 rel.”

Bail on Evidentiary values ground in NAB cases,

In para (b) (d) of 2013 Pakistan Criminal. Law Journal 1607 case titled Syed ANWAR BADSHAH—Appellant Versus CHAIRMAN, NATIONAL ACCOUNTABILITY COURT, ISLAMABAD and 2 others—
Respondents Ehtesab Criminal Appeals Nos.4 and 6 of 2004, decided on 1st March, 2013.  principle laid down in decision of an Appeal regarding accountability case having the allegation of sale of land which was undervalued as compared to market value, the market value was 85, 09,500 and the less documented value was 17, 94,600
where the case was decided in favour of accused and acquitted from the charges leveled against them because the prosecution failed to produce evidence against the accused petitioner.

“(b) National Accountability Ordinance (XVIII of 1999) —

—-S. 17—Criminal Procedure Code (V of 1898), S. 265-F(4)—Defence evidence, reliance
upon—Principle—In absence of prosecution evidence, weight has to be given to statements of
defence witnesses.

“(d) National Accountability Ordinance (XVIII of 1999)——-S. 14(c)—Acquiring assets beyond known sources of income—Presumption—Shifting of
onus to prove—Principle—Prosecution has to establish four ingredients mentioned in S.14(c) of
National Accountability Ordinance, 1999, and then burden shifts upon accused to explain his
position as required under S.14(c) of National Accountability Ordinance, 1999.

Khalid Aziz v. State 2011 SCMR 136; 2007 MLD 910; Muhammad Hashim Baber v.
The State and another 2010 SCMR 1697 and PLD 2004 Lah. 155 rel.

The same principle was also taken in the above mentioned citation of apex judiciary to decide the NAB cases.

Bail on Medical ground in NAB cases is to be considered by High Court as per Jurisdiction according to the Constitution of Islamic republic of Pakistan 1973 and  detailed mentioned in the W.P. 1563-P of 2014 with interim relief with Criminal .Miscellaneous. Application 594-P of 2014. JUDGMENT Date of hearing. 17.7.2014. Petitioner/ Muhammad Rafiq Bangash by Ghulam Mohyuddin Malik, advocate.
State/NAB by Mr. Muhammad Jamil Khan, DPGA.

 “4. Learned counsel for petitioner contended that the petitioner along with some others was examined by 2nd Medical Board and they have been given the relief but it has been withheld in respect of petitioner, which is in violation of Articles 4 and 25 of the Constitution; that the petitioner has been granted leave by the august Supreme Court as per provision of Section 426 2-b Cr. P.C., therefore, is entitled to the concession of bail on suspension of his sentence. In support of his arguments, learned counsel referred to case law reported as PLD 2002 SC 408, PLD 2005 SC 63, 2010 SCMR 1697, 2011 SCMR 136 and PLD 2011 SC 1144.”

Bail is also allowed in National accountability cases on the bases of tender age or women having sufficient medical illness duly confirmed by the medical board recommended for treatment duly discussed and elaborated in the judgment WP No.1261-P/2015 Date of hearing: 04.06.2015 titled Pir Muhammad Azam vs NAB

“Proviso Ist to section 497 Cr. P.C. deals with bail to any person under the age of sixteen years or any woman or any sick or infirm person accused, which reads as under:-
“ S.497 (1).. Proviso First:- Provided that the Court may direct that any person under the
age of sixteen years or any woman or any sick or inform person accused of such an
offence be released on bail”
Correct criteria for grant of bail to an accused on medical , in a non-bailable offences, has been laid down by the apex Court in
6 case titled, “Mian Manzoor Ahamed Watto Vs the State”
(2000 SCMR 107), in these words:-
“Correct criteria for grant of bail to an accused in a non-bailable case on medical
ground would be that the sickness or ailment with which the accused is suffering is such
that it cannot be properly treated within the jail premises and that some specialized
treatment is need and his continued detention in jail is likely to affect his capacity or is
hazardous to his life”. Guidance in this regard may also be derived from case titled,
“Haji Mir Aftab Vs the State” (1979 SCMR 320). As regard gravity of the offence, where the Court is satisfied of the sickness of the accused and such disease cannot be properly
treated in custody, then gravity of the disease would outshine the gravity of the offence. The apex court in case titled, “Peer Mukaram ul Haq Vs National Accountability Bureau (NAB) through Chairman and others (2006 SCMR 1225), held that sick or inform person may be released on bail even if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment becasue where a statute itself lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the 7 Court. In case titled, “The State Vs Haji Kabeer Khan” (PLD2005 Supreme Court 364) it has been held by the apex Court that “Courts are not required to quality or quantify the nature of disease and once a case is made out under the recognized principle laid down by the Supreme Court in this behalf, bail is to be granted on medical ground leaving prosecution at liberty to move the Court for cancellation of bail, if health of accused has improved during pendency of proceedings, because on the ground of sickness or infirmity, on exceptional term, law has offered an opportunity to an accused to enjoy the concession of bail subject to satisfying the Court about the nature of his ailment as well as on the ground of non-getting of proper treatment in jail, but no sooner the accused has improved his health, the prosecution can come forward with the request for withdrawal of the concession of bail.”

BAIL ON THE GROUND OF DELAY IN TRIAL AND SURRENDER PASSPORT IN NAB CASES.

WP No. 2893-P/2016. Sajahid Gul Vs Chairman NAB, etc. judgment decided on 13.10.2016

Judgment Sheet Petitioner(s) by: Barrister Waqar Ali Advocate.
Respondent(s) by: Mr. Muhammad Jamil Khan DPG for NAB.
“Sajahid Gul through this Constitutional petition, craves the indulgence of this
Court for his release on bail on the ground of delay in conclusion of trial in Reference pending in the Accountability Court No.II, Peshawar.
2. Prior to the present Writ Petition, bail prayer of petitioner on merits was turned down by this Court vide order dated 16.4.2015 in Writ Petition No.745-P/2015.
3. Petitioner was arrested on 17.10.2014 in pursuance of Warrant of Arrest issued by the Director General, NAB (Khyber Pakhtunkhwa) on the charges of
being operating illegal business under the garb of Mudaraba
with the name and style of Galaxy Star Company deceiving public at large and despoiling them of their arduous earnings.
4. Learned counsel for the petitioner argued that he was arrested on 17.10.2014, whereas Reference was submitted on 15.1.2015 before the learned Administrative
Judge. Petitioner alongwith others were formally indicted on 21.2.2015, when so far only thirty nine (39) PWs have been examined. The total number of prosecution witnesses are one hundred and four (104) while Sixty Five (65) witnesses are yet to be examined. Learned counsel further contended that delay has not been occasioned due to any act or omission on the part of petitioner or any person acting on his behalf. He fortified his arguments by relying on the following judgments of august Apex Court and of this Court in the light of these cases, 2015 SCMR 1696, Civil Petitions No.86,134,167, 179, 180, 181 of 2016 decided on 28.4.2016,Civil Petitions No.3603 & 3604 of 2015 decided on 21.1.2016, PLD 2016 Sindh 41, 2015 YLR Sindh 2016, PLD 2003 Karachi 292, 2005 SCMR 1666, 199 P.Cr.LJ 948, PLD 2008 SC 645, PLD 2012 Sindh 261, 2002 SCMR 282, 1998 SCMR 190, PLD 1990 SC 934, 1990 SCMR 1045.
5. Repelling the arguments, learned D.P.G, vehemently opposed the grant of bail to the petitioner on the premise that petitioner is charged for deceiving public
at large and an amount of 522 Millions have been swindled by the petitioner alongwith others, has made a judicial confession before Judicial Magistrate. He also submitted that delay has not been occasioned due to any fault of prosecution. He lastly contended that the 3rd proviso of Section 497(1) Cr.PC is not strictly attracted to the cases under NAO, 1999.
6. First we will advert to the applicability of 3rd proviso of Section 497(1)Cr.PC. Third proviso was inserted for the first time in the year 1979 by Ordinance No.LXXI promulgated on 22nd December, 1979, which is reproduced as under:-
ORDINANCE LXXI OF 1979 CODE OF CRIMINAL PROCEDURE (SECOND AMENDMENT) ORDINANCE 1979 An ordinance further to amend the Code of Criminal Procedure, 1898. (Gazette of Pakistan, Extraordinary, Part 1, 22nd December, 1979.
————
————
Amendment of section 497, Act V of 1898. – In the said Code, in Section 497, in subsection (1) in the second proviso, for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely:-
“Provided further that the Court shall, except where it is of opinion that the delay in trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail.—
(a) Who being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not commenced; or
(b) Who being accused of an offence punishable with death, has been detailed for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded.” (PLD 1979 Central Statutes 19).
7. Prior to, this amendment there was no provision under the law to govern grant of bail on the ground of delay in conclusion of trials. The apex Court in cases of “Riasat Ali Vs Ghulam Muhammad & others”
(PLD 1968 SC 353) and thereafter in case of Ahrar Muhammad & others Vs The State” (PLD 1974 SC 224) and Seer Zaman Vs Muhammad Azad & others” (1978 SCMR 248), allowed bail on the ground that delay in prosecution of case amounts to abuse of process of law and delay was considered to be a good ground for the grant of bail in offences which were even punishable with death sentence.
8. The objection of learned DPG is over ruled to that extent, even this Court and the august apex Court has been entertaining petitions for bail under the National Accountability Ordinance on the ground of delay in conclusion of trial.
9. In this reference charge was framed on 21.2.2015. As per index of witnesses annexed with the Reference, total number of witnesses to be examined by the prosecution, are one hundred and four (104). From 21.2.2015 till date only 39 PWs have been examined within a space of almost 20 months. By now Sixty Five (65) witnesses are yet to be examined and if the trial proceeds with such a pace, there is remote possibility of conclusion of trial in the near future. Guidance is sought from the judgments of the apex Court delivered in cases of “Himesh Khan Vs National Accountability Bureau” (2015 SCMR 1092), Muhammad Nadeem Anwar Vs National Accountability Bureau” (PLD 2008 SC 645), Anwarul Haq Qureshi Vs National Accountability Bureau” (2008 SCMR 1135) and Ch: Zulfiqar Ali Vs The State” (PLD 2002 SC 546).

  1. Needless to mention that heinousness of offence or embezzlement of huge amount would not be a good ground for refusal of bail on the ground of nonconclusion of case within statutory period. Section 16-A of the National Accountability Ordinance, circumscribe a limit for conclusion of trial within 30 days from its commencement.
    11. For what has been discussed above, this Writ Petition is allowed, petitioner Sajahid Gul is admitted to bail provided he furnishes bail bonds to the tune of Rupees (20 Millions) with two sureties each in the like amount to the satisfaction of learned trial Court who shall ensure that the sureties are local, reliable and men of means. The petitioner shall surrender his Passport to the trial Court which shall be kept in safe custody till the conclusion of trial. The NAB authorities are directed to approach the Ministry of Interior for placing the name of
    petitioner on the Exit Control List.

The above are reasons of our short order of
even date.
Announced:
13.10.2016.”

Written by

KHURRAM SHAHZAD

The writer is an advocate of High Court Peshawar