NAB ORDINANCE AND BAIL

Bails

2003 PCrLJ 266. Makhdoom Javed Hashmi V/S The State (Lahore DB)
S.9(b) NAB Ord., 1999. S.426, 491, 497, 498 & 561-A CrPC. Vires of
constitution. High Court can exercise its powers under Art.199 of the
Constitution to grant bail in appropriate cases. Ouster clause of the NAB
Ord. 1999 had been specifically attended to by the Supreme Court and it
had categorically reiterated that the powers of the superior courts under
Art.199 of the constiution remained available to them to their full extent
notwithstanding anything contained in any legislative instrument enacted by
the Chief Executive of Pakistan whereas S.9(b) of the NAB Ordinance
purported to deny in all courts, including the High Courts, the jurisdiction
U/S 426, 491, 497, 498 & 561-A or any other provision of the Code
Criminal Procedure or any other law for the time being in force, to grant bail
to any person accused of an offence under the NAB Ordinance. Superior
Courts had the power to grant bail under Art.199 of the Constitution
independently of any statutory source of jurisdiction such as S.497 of the
CrPC. Section 9(b) of NAB Ordinance to that extent was ultra vires the
Constitution. (2) Accused had been in custody for the last more than one
year and out of sixty one witnesses cited by the prosecution only nineteen
witnesses had been examined thus for notwithstanding the explicit
provision of S.16 of the NAB Ordinance which provided that the case
wouod be heard from day to day and disposed of within 30 days. Seven out
of thirteen charges against the accused pertained to “Benamidars”. Deputy
Prosecutor General was not sure as to how many prosecution witnesses
would be given up and how many would be examined. Only after the
recording of the entire prosecution evidence the accused would put up his
defence. Even the “Benamidars” might have to be produced in court. When
the prosecution had yet to examine a major part of its evidence or the
petitioner had yet to enter his defence, the fate of the trial would hang in
balance. Accused during his period of custody had contested the election
for the seat of National Assembly, his nomination papers had been
scrutinized, objections had been repelled and he had stood elected as
member of the National Assembly. Accused had to attend the Session of
the National Assembly as a legislator and had to represent his
constituency. If the opportunity to attend the session of the parliament was
not given to the accused it would be denial of his right to represent the
people and his constituents would go unrepresented which would be
violative of their constitutional rights. Accused’s name had already been
placed on the exit control list, therefore, there were no chances of
absconding of the accused. BAIL GRANTED

PLD 2003 SC 525.Muhammad Jahangir Badar V/S The State & Others
(FB)

S.9/10/16(a). Court U/S 16(a) of the NAB Ordinance 1999 being bound to
dispose of the case within 30 days, inordinate delay in the prosecution
case, if not explained, could be considered a ground for bailing out an
accused person depending on the nature and circumstances on account of
which delay had been caused. BAIL GRANTED.

PLD 2003 Karachi 526.Muzammil Niazi V/S The State (DB)

S,9 NAB Ordinance 1999.
Mens rea with reference to statutory offence - Presumption, in a statutory
offence, is that mens rea is an essential ingredient unless the statute
creating the offence by express terms or by necessary implication rules it
out. Mere omission of the word "knowingly" or "intentionally" is not sufficient
to rebut such presumption for all that such words do is to say expressly
what is normally implied. Where the words used in the statute are not clear
or ambiguous an examination of the general scheme and object of the
statute becomes necessary to determine whether the general rule of
liability has been departed from. BAIL GRANTED.

2003 SCMR 597. Haji Ghulam Ali V/S The State (SC.FB)
S.9/10. S.497 CrPC.
Accused could not, under the law maintain a bail application before the
High Court U/S 497 CrPC. High Court, however, was competent to
entertain the bail application in its jurisdiction under Art.199 of the
Constitution. Trial of the case was in progress and the prosecution still
intended to examine some of its witnesses. Trial Court, in circumstances,
was directed to conclude the trial within four months. Accused, however,
could approach the High Court in its constitutional jurisdiction for grant of
bail on any ground available to him. Bail application of accused before the
High Court U/S 497 CrPC being not maintainable under the NAB
Ordinance, order passed thereon was set aside. Petition for leave to appeal
was converted into appeal and allowed with the said observation.
PETITION ALLOWED WITH OBSERVATIONS.

PLD 2003 Lahore 517.Khan Haroon Resikh V/S The State & 2 Others (DB)

S.9. Bail, grant of. Accused, a civil servant, was behind the bars for the last
more than one year; reference against the accused was filed in February
2002 and even the charge had not been framed, there was no allegation
that adjournments were sought by the accused or his counsel; allegations
leveled against the accused mostly pertained to violation of some rule but it
was not denied that so far as said allegations were concerned, mostly the
orders were passed by the Competent Authorities; mere acquisition of
properties was not an offence, the offence was constituted when the
accused fails to account for those properties; such exercise of proving the
acquisition of the properties disproportionate to accused’s known sources
of income and the recording of defence evidence to rebut those charges
was likely to take sufficient time; provisions of S. 16(a) of the ordinance
mandated conclusion of trial within thirty days therefore the incarceration of
accused for an indefinite period would not be in accord with the cannons of
equity and wife of accused was seriously ill and accused had minor
children. Bail was granted to the accused by the High Court subject to his
furnishing bail bonds in the sum of Rs:10,00,000 with two sureties each in
the like amount to the satisfaction of the trial court. Accused’s passport
shall be surrendered to the trial court and shall not be given to him without
leave of the High Court. BAIL GRANTED

2004 SCMR 91. Chairman NAB, Islamabad V/S Asif Baig Muhammad &
Others (SC.DB)
S.9(b) & 17. S.497 CrPC. Accused was arrested by NAB and was in judicial
lock-up. High Court in exercise of constitutional jurisdiction released the
accused on bail. Plea raised by the authorities was that High Court had
wrongly released the accused in exercise of constitutional jurisdiction.
Validity. Accused facing charges under NAB Ordinance 1999, could
approach High Court under Art. 199 of the Constitution. Application under
S.497 CrPC before High Court was not maintinable. Supreme Court
declined to interfere with the order passed by High Court in exercise of
Constitutional jurisdiction. LEAVE REFUSED.

2007 PCrLJ 1282. Muhammad Shafiq Nirban V/S National Accountability

Bureau (Karachi DB)

S.9/10 . Art.199 of Constitution. S.498 CrPC. Accused apprehended his

arrest during the process of inquiry initiated by NAB authorities, who being
an Accountant in a company had allegedly misappropriated its amount
through cheques. Allegations against accused had already been
investigated by the regular police and challan had been submitted in the
Court of Magistrate. During inquiry officials of some banks were also found
involved and in such a situation the offence could be only tried by the Court
created under the Offences in Respect of Banks (Special Courts)
Ordinance, 1984. In;quiry report had been submitted, but the Chairman
NAB had not passed any order referring the case for investigation and it
was not known when such order would be passed or the investigation
would be completed. Interim pre-arrest bail granted to accused was
confirmed in circumstances. BBA CONFIRMED.

PLD 2007 Karachi (DB) 558. Muzaffar Ayaz Abid Baloch V/S Regional
National Accountability Bureau Sindh
S.9(a)(iv) & 9(b). Accused was clerk in a bank and he received four pay
orders to be posted in accounts of two departments but he, instead of doing
that posted those pay orders in a private accounts, from where amount of
two pay orders had been withdrawn. Credit/deposit slips filed in by the
accused were sent to handwriting expert, whose report was in positive----
Effect-----Accused appeared to have some connection in depositing the
four pay orders in that private account. Accused was a bank employee who
had knowledge that pay orders were to be deposited in the account of
person in whose favour they were issued but in spite of his knowledge, he
filled in credit/deposit slips so as to be deposited in the private account.
One of the entries in clearance register was also maintained by accused as
per Handwriting Expert's positive report with regard to the entry. Cash
incharge also stated that two amounts were received by accused which
were drawn from the private account. Reasonable grounds were available
for believing that accused was involved in the case along with other co-
accused. BAIL REFUSED.
2008 SCMR 196.Dr. Allah Nawaz A. Qazi V/S The State
S.9(a) & 10(2). Allegation against the accused was that he as Additional
Medical Superintendent and Member of the Health Welfare Committee had
assisted the co-accused while giving approval for issuance of cheques
against fake, fictitious, forged invoices, bills and indent forms, which factor
could only be assessed after recording prosecution evidence. According to
the functions of the Members of the aforesaid Committee, Zakat cheques
were to be signed by two members. No cheque or any other relevant
document could be produced showing the signature of accused whereby
Zakat Fund was said to have been misappropriated by him. Even in the
Reference accused had not been shown as beneficiary in the alleged
misappropriation of Zakat Fund. Allegations made against accused, thus,
needed further probe. BAIL GRANTED.
2008 PCrLJ 171.Fazal-e-Hadi V/S National Accountability Bureau (Karachi
DB)
S.10. Possession of tainted money with the accused prima facie, did not
need any further inquiry. Delayed statement of the complainant had not
weakened the prosecution case. Accused had admitted receiving of money
through his plea of bargain. Deeper appreciation of evidence could not be
made at this stage and the grounds taken by accused could be thrashed
out before the trial court. Accused was the Assistant Director in the NAB
and was conducting an inquiry against the corrupt people. Prima facie case
had been made out against the accused as he himself had offered for plea
of bargaining and had filed an affidavit to pay more amount than he had
demanded and received from the complainant and others. Accused in his
own handwriting had admitted all the mistakes committed by him and even
requested the D.G. NAB to pardon him. BAIL REFUSED.
PLD 2008 SC 324. Manzoor Hussain Shahani V/S NAB
S.10. Manager (Operation) of National Bank – Charge of embezzlement –
Payment of amount in excess of embezzled amount by accused to NAB
under plea bargain --- Validity ---- Finalization of proceedings under plea
bargain would require some time, on finalization whereof accused would
have to be released. BAIL GRANTED
2008 PCrLJ 910. Farhad Sajid V/S National Accountability Bureau
(Peshawar DB)
S.9 & 10. Allegation against accused that he being Forest Range Officer,
was involved in ruthless illegal cutting of trees in the Government Reserve
Green Forest, which was within his controlling jurisdiction. Whole
government loss calculated in the reference was Rs.7.114 million and
liability had been fixed against as many as nine persons, out of whom three
had made good the loss attributed to them through plea bargain. Accused
though had been individually attributed the loss calculated as Rs.6.728
million, but that calculation appeared overlapping, when liability of each
accused was taken in account, in juxtaposition; in that state of affairs, if
charge was proved against accused, his ultimate sentence would have to
commensurate proportionately with the quantum of actual loss yet to be
established against accused. Trial court, for that purpose, had to
meticulously calculate and weigh his liability on judicious scale. At least, on
the point of actual losses attributed to accused, his case needed further
inquiry. Keeping in view the total loss and large number of accused,
imposition of maximum sentence of imprisonment was not viable. Such
was a tentative assessment only for the purpose of bail and would never
affect the merits of the case and mind of the court at the time of final
pronouncement; it was appropriate to enlarge accused on bail, in the
peculiar facts and circumstances of the case mainly on the ground of
expected prolonged trial period. Due to limited liability fixed against
accused, no likelihood appeared of his going into hiding and that bail could
not be withheld as punishment. BAIL GRANTED

2003 SCMR 1085.Muhammad Tahir Siddiqui & another V/S National

Accountability Bureau (SC.FB)

S.16-A(c ), 18(8), 24(b) & 25. Transfer of case by Supreme Court. Petition
for transfer of reference. Petitioners who wer accused in the reference had
sought transfer of reference from Court at place "A" to Court at place "K".
Application for transfer of reference had been made by the petitioners at
the earliest available opportunity when trial in the case against them was at
initial stage. Prosecution had not brought any tangible material on record to
demonstrate that petitioners had attempted to tamper with prosecution
evidence by intimidating the prosecution witnesses or otherwise
necessitating trial of reference at place "A". Prima facie entire investigation
in case against the petitioners was carried out at place "K" where reference
was sought to be transferred. Accused, prosecution and defence witnesses
belonged to place "K" where alleged offence had taken place. Trial of the
accountability cases was required by law to be concluded expeditiously,
whereas Accountability court at place "A" was not functional for the time
being. Power of transfer of a case from one court to another had to be
exercised with circumspection and caution, but court would not hesitate to
act in an appropriate case if ends of justice so demanded. One of the
common circumstances relevant for the transfer of a case from one court to
another, was the evidence of substantial prejudice to a party or witnesses
on account of logistic or suck like factors specially when alternative venue
of the trial would not seriously handicap the State and rather would mitigate
the serious difficulties of the accused to have a fair and impartial trial in a
more congenial atmosphere. Would be in the interest of justice and fair and
expectations trial if reference was transferred from Accountability Court at
place "A" for trial by Accountability Court at place "K".

PLD 2006 Lahore 162. Sardar Muhammad Naseem V/S Judge

Accountability Court (DB)

S.16. NAB Ord. Art.199. Trial in the case, in view of its history of five ;years
was expected to take more time. Defence had as yet to produce its
witnesses and thus the accused (petitioner) would suffer further
incarceration. High Court, in circumstances, ordered the release of accused
on ad interim post-arrest bail provided he furnishes bail bond in the sum of
Rupees one million along with a respectable surety of the city in the same
amount to the satisfaction of the trial court. If release on bail, the accused
shall keep appearing on every date fixed by High Court and the trial court,
otherwise, order of release on bail may be recalled. Trial court was also
directed to take into custody passport of the accused before he was
released on bail. BAIL GRANTED.

PLD 2008 Karachi (DB)146. Muhammad Rasheed Hassan V/S The State
S.498 CrPC. S.18(a) & 24(b) NAB Ordinance 1999. Constitutional petition –
Pre-arrest bail
 – Officer of PIA and agent of lessee-company – Charge of receiving illegal
gratification and commission. Contract by PIA for acquiring aircrafts from
lessee-company on lease. Approval of such contract by Board of directors
of PIA and High Powered Committee. Participation of PIA in proceedings
initiated in foreign court since 2005, wherein judgment had been
announced in July 2007. Filing of reference against petitioners in June
2007. Investigation report suggested about contractual obligations between
petitiones, lessee and PIA, which could be determined in suit for recovery
to be filed by PIA against petitioners. No direct evidence was available that
petitioners were involved in commission except that matter came to light
after four years of transaction, which would require adjudication at trial.
Record of Bank had not been seized for alleged commission amount
passed on from account of one petitioner to other. First petitioner aged 60
years was old chronic patient of heart ailment, diabetes and mellitus and
was under treatment for last 3 years while the second petitioner had
undergone electro physiology and was diabetic. Detention of petitioners in
jail or stay in Government Hospital might result in their collapse at any time
as they would require immediate treatment, close monitoring by a doctor in
a well equipped hospital. BBA CONFIRMED.

2004 SCMR 1805. Arif Sharif V/S Chairman NAB (SC.FB)

S.24. Accused, under provisions of S.24 of NAB Ordinance, 1999 could not
be detained for the purpose of investigation/inquiry for a period exceeding
90 days and for every remand, reasons had to be recorded in that respect.
Accused in the present case was in continuous detention over a period of
25 months. Reference though had been filed after about two years from
arrest of accused but no progress had taken place towards the conclusion
of trial of accused despite lapse of considerable time. Accused could not be
detained for indefinite period. Case being fit warranting interference of
Supreme Court, petition filed by accused was converted into appeal and
allowed by directing that accused be released on bail. BAIL GRANTED
PLD 2004 Karachi 377.Muhammad Iqbal Solangi V/S The State (DB)
S.9/10 NAB Ord. 1999. Accused admittedly had voluntarily surrendered
before law and he was allowed bail in his appeal against the sentence
awarded to him U/S 31-A of the NAB Ord. subject to his appearance before
the trial court. Question whether the absence of accused from the court
was deliberate amounting to abscondence was subjedice in his appeal.
Allegation in the case appeared to be the preparation of fake permits
whose originators were yet to be traced out. Four accused in the case had
already been acquitted. Case, in circumstances, one of further enquiry.
BAIL GRANTED

2005 MLD 519.Farrukh Sayyar Khan V/S The State & another (Lahore DB)
S.9(b) Nab Ord. Art.199 of Constitution. S.497, 498, 491 & 561-A CrPC.
Constitutional jurisdiction.

Bail. Superior courts have the p0ower to grant bail under Article 199 of the
Constitution, independent of any statutory source of jurisdiction such as
S.497 CrPC. Section 9(b) of the NAB Ord. 1999 to that extent is ultra vires
the constitution. High Court under its constitutional jurisdiction has
unquestionably such power and should exercise this jurisdiction when the
question of liberty of a citizen is involved even when High Court has before
it only an application U/S 498 CrPC. BAIL REFUSED.

2005 SCMR 422.Asif Ali Zardari V/S Federation of Pakistan (SC.FB)

S.9/10 & Schedule Art.8. S.32 Customs Act. Charge against accused was
that being a member of national assembly, by misusing his power, position
and public authority, illegally and fraudulently imported a BMW bullet proof
vehicle by showing the same ordinary 1600 horse power car in an other
persons name and got the same registered and as such by preparing false
documents and fabricating the record, he committed an offence of
corruption and corrupt practices as defined U/S 9. Accused was further
charged for causing a loss of Rs:1,42,06,622 to the national exchequer.by
evasion of customs duties and taxes alleging that the accused thereby
committed an offence of corruption and corrupt practices, punishable under
Art 8 of the schedule of the NAB Ordinance 1999. Record showed that
original importer of the vehicle was the same person as mentioned on the
relevant papers, who transferred said car to another person and latter
transferred it to yet another person. Record further showed that the original
importer, who had imported it had paid customs duty according to law.
Irrefutable evidence was available to the effect that the accused, at the
relevant time, was not in power. Nothing concrete had been brought on
record to show that the accused had any link with the original importer or
for that matter with the other transferees. No evidence worthy relying upon
was available to prove that said car was sent from the accused's house to
the garage as alleged. Neither original importer nor the transferees nor any
custom officer nor any registration officer had been joined as accused. One
of the main witnesses of the prosecution, during the trial was declared
hostile as he did not support the prosecution. No evidence worth
mentioning was available on record to indicate that customs duty and other
charges were paid by the accused. Proceedings against the accused in the
present matter were initiated when he was already granted bail/acquitted in
other cases registered against him. Held, prima facie there was no
evidence worth relying and the evidence so collected was not enough to
decline bail to accused. BAIL GRANTED

2007 PCrLJ 105.Muhammad Amin Qureshi & another V/S The State
(Karachi DB)

S.9(a)(xii) NAB Ordinance, 199. "Abetment". Connivance of accused with

his co-accused. Proof. To establish connivance, whichwas a form of
abetment, presence of guilty mind was necessary. Omission on the part of
accused persons must be coupled with their guilty mind for which at least
knowledge of crime was essential. Nothing was available on record to show
that accused persons were in knowledge of misappropriation made by
cashier. Merely from telephonic conversation, it could not be assumed that
they knew about missappropriations of cashier. In absence of guilty mind,
failure to collect scrolls and stubs, even if misappropriated amounts were
mentioned in them, criminal liability would not be attracted. BAIL
GRANTED
MLD 2003 729. Hassan Raza V/S The State (Karachi DB)
S.10(b) & 18 NAB Ord. 1999.

Masin charge against one of the co-accused was that he acquired property
of value beyond his known means of income. Contention of accused was
that he purchased the property in his own name and for that purpose he
had borrowed money from the co-accused and that it was not property of
the co-accused purchased in name of the accused. Case of accused did
not appear to fall within definition given in Cl.(b) of S.10 of NAB Ord. 1999
and a case of purchase of property by any person in his own name through
borrowing from a person involved in corrupt practice, was not covered by
the said provision of law. One of co-accused involved in such like cases
was granted bail and case of accused did not appear to be materially
different from case of said co-accused. BAIL GRANTED.

PLD 2003 SC 668. Abdul Aziz Khan Niazi V/S The State (FB)

S.9(a)(iv) and (vi), 10(b), 18(g) & 24. Corruption and corrupt practices -
One cannot be tried and punished twice for the charge based on the same
allegation and evidence in the same transaction. No bar existed in filing the
separate references in the separate transaction involving the similar
allegation but one cannot be charged for the second time for the same
allegation on the basis of same evidence. Separate trial in more than one
references of similar nature relating to the separate transaction can
continue but in the light of the rule that "one should not be vexed twice for
the same cause, the prosecution of the accused on the basis of the same
allegation and same evidence in more than one references would not be
legal. Perusal of documents place on record, in the present case, in
support of legal character of the property involved in the reference, would
create a reasonable doubt about the correctness of the allegation and
consequently, in absence of any other evidence, it would be difficult to form
an opinion that the accused by making concealment of assets in the
income tax return and supplying incorrect information to the Income Tax
Department, committed the offence with which he was being charged or the
concealment was made with the intention to evade the income tax. Unless
the prosecution, prima facie, satisfied the court about the culpability of a
person, the bail to him cannot be withheld merely on the basis sof
presumption of guilt and the essential question for determination in such
circumstances would be regarding the true character of the transaction and
the nature of offence which was allegedly committed. Unless in the light of
evidence in the hands of prosecution, the case is brought within the
parameters of expression "reasonable grounds" to believe that the offence
with which a person was being charged was committed by him, the bar
accusation would not be sufficient to curtail his liberty. BAIL GRANTED

PLD 2005 SC 364. The State V/S Haji Kabeer Khan (FB)

S.9(b) NAB Ord. 1999. Pre-arrest bail - grant of - Jurisdiction of High Court
- Scope - No provision existed in NAB Ord. 1999 for grant of pre-arrest bail
to accused. High Court would exercise its power sparingly in rare and
exceptional circumstances for valid reasons to be recorded in writing.
STATE APPEAL AGAINST GRANT OF BAIL ACCEPTED.

2004 SCMR 660.Saeedullah Soomro & another V/S The State (SC.DB)

S.10 & 32(b). Appeal preferred by the accused before High Court was fixed
for hearing more than twelve times and on two occasions arguments were
heard, yet the judgment was not delivered. Matter was adjourned as a
routine on one ground or the other. Appeal U/S 32(b) of the 1999
Ordinance, was required to be finally disposed of within 30 days from the
date of its filing. Accused had earned one year's remission and he was to
remain in custody only for about two years. Prosecution could not
satisfactorily explain as to why on so many occasion the matter was
adjourned and why concrete steps were not taken to conclude the same
within the time limited prescribed by law. BAIL GRANTED
2006 MLD 452.Ayaz Younus V/S The State (Karachi DB)
S.16 & 18(g) NAB Ord. Art.199 Constitution. S.497 CrPC.

Accused was under custody for the last more than three years. Out of 191
witnesses only 22 witnesses were examined and there appeared to be no
chance of early disposal of the Reference. Non-conclusion of trial within the
statutory period of 30 days would amount to abuse of process of law and
would give right to accused to seek his release on bail, especially when no
plausable reasons were shown for such inordinate delay. Even otherwise
for grant of bail, it was sufficient that 19 other co-accused in the same
Reference had been released on bail. Accused was also entitled to grant of
bail in view of rule of consistency. BAIL GRANTED.

LD 2007 Karachi 27. Raja Muhammad Zarat Khan V/S The State
S.20. NAB Ord. 1999. S. 32-B & 195-C Customs Act 1969.

Rational behind NAB Ordinance was not only to punish those who were
found guilty of charges levelled under the Ordinance but to facilitate early
recovery of ill-gotton wealth through settlement where practicable. Plea
bargain was not desirable in cases opposed to principles of public policy.
Provisions pertaining to plea bargain in NAB Ordinance were not attracted
to present prosecution under Customs Act 1969. Fraudulent and phony
exports were utterly opposed to public policy for the simple reason that they
not only brought bad name to country but also promoted corruption based
culture, economy, bureaucracy, business and trade activities. Such was a
crime against entire society and contry which was more heinous than any
other ordinary criminal offence. Person who was involved in any
embezzlement, criminal breach of trust, fraud, forgery, accepting illegal
gratification etc., was not to be let off the book merely on depositing the
amount of loss caused by such person. Such practice, if adopted, was to
make provisions of criminal law redundant, otiose and nugatory, changing
criminal liability into civil liability, hence, the same was not to be permitted.
BAIL REFUSED.
PLD 2003 SC 837.Syed Ali Nawaz Shah & 2 Others V/S The State &
Others. (FB)

S.25 & 15. S.345(6) CrPC. Disqualification to contest election or hold public
office. Concept of plea bargaining and policy of law. Scope-- Where the
plea bargaining in terms of S.25 of the NAB Ordinance was entered by an
accused during the investigation/inquiry or at a subsequent stage, he, on
acquittal from the charge, must face the consequence given in S.15 of the
Ordinance viz. "disqualification to contest elections or hold public office" -
Principles--- Accused, in the present case, had not entered into an express
agreement with the prosecution for disposal of case against him in terms of
S.25 of the Ordinance and the essential element of plea bargain of offer
and acceptance being missing, the transaction would not be given the
status of plea bargain in terms of S.25 of the Ordinance. Plea bargain must
be made part of the judicial record in the form of offer and acceptance
through an express agreement containing the terms of settlement.
Supreme Court accepting the appeal of the accused directed the trial court
to proceed in the reference against the accused on merits for its decision in
accordance with law. Accused, if so desired, could negotiate with the NAB
authorities for exercise of the option of entering into plea bargain U/S 25 in
proper manner. Accused was on bail and would remain on bail pending
disposal of reference subject to furnishing of fresh bail bond to the
satisfaction of trial court.

2007 PCrLJ 1515. Wakeeluddin & Others V/S The State (Karachi DB)
S.3 NAB Ordinance 1999. Preamble & S.3. Constitutional jurisdiction of
High Court – Scope – Bail – NAB Ordinance, 1999,

was a sub-constitutional statute which could not override the constitution,

but it was subservient to it. Said Ordinance could not curtail constitutional
powers of the High Court or any authority. High Court being constitutional
court in exercise of its constitutional powers under Art. 199 would entertain
the bail pleas of aggrieved persons.
2008 MLD 257.Abdul Qadir Tawakkal V/S Chairman National
Accountability Bureau (Karachi DB)

Art.199 Constitutional. Complainant in his FIR had alleged that company

had sold the hypotheticated goods in respect of the loan advanced to them.
Counsel for petitioner had stated that petitioner being neither Director nor
Chairman nor Executive Officer of said company was not involved in the
case and that petitioner was not responsible for actions conducted by his
sons and other Directors of the company. Initially when the matter was
under investigation, petitioner was granted bail by the Special Court
(Offences in Banks) at "L" and said bail granting order had not been
cancelled, however, after submission of challan, in the present proceedings
petitioner was shown in custody as he was involved in other cases.
Petitioner, admittedly was neither Chairman not Director nor Executive of
the company. Petitioner, in circumstances was entitled to the concession of
bail. BAIL GRANTED.

NLR 2008 SD 459.Fazal-e-Hadi V/S National Accountability Bureau

(Karachi DB)

S.10. Prima facie case U/S 10 would be made out against accused when
he himself offered for plea bargaining. In such case, prima facie the
recovery of tainted money from possession of accused as claimed by
prosecution would not need any further inquiry under S.497(2) so as to
entitle accused to grant of bail. High Court dismissing bail application of
accused as deeper appreciation of evidence could not be made at bail
stage while prima facie case U/S 10 was made out against accused. BAIL
REFUSED.

NLR 2008 CrLJ 526. Dr. Allah Nawaz A. Qazi V/S The State (SC)
S.9 & 10. Accused facing a reference before NAB Court would make out a
case for grant of bail when as per reference, accused has not been shown
as beneficiary of the alleged misappropriated amount and it could not be
ascertained as to whether allegations leveled against him in reference were
with or without foundation. High Court would be wrong in dismissing
accused’s writ petition filed to challenge order of NAB refusing bail to
accused. BAIL GRANTED

PLD 2008 SC 324. Manzoor Hussain Shahani V/S NAB

S.10. Manager (Operation) of National Bank – Charge of embezzlement –

Payment of amount in excess of embezzled amount by accused to NAB
under plea bargain --- Validity ---- Finalization of proceedings under plea
bargain would require some time, on finalization whereof accused would
have to be released. BAIL GRANTED

2008 PCrLJ 910. Farhad Sajid V/S National Accountability Bureau

(Peshawar DB)

S.9 & 10. Allegation against accused that he being Forest Range Officer,
was involved in ruthless illegal cutting of trees in the Government Reserve
Green Forest, which was within his controlling jurisdiction. Whole
government loss calculated in the reference was Rs.7.114 million and
liability had been fixed against as many as nine persons, out of whom three
had made good the loss attributed to them through plea bargain. Accused
though had been individually attributed the loss calculated as Rs.6.728
million, but that calculation appeared overlapping, when liability of each
accused was taken in account, in juxtaposition; in that state of affairs, if
charge was proved against accused, his ultimate sentence would have to
commensurate proportionately with the quantum of actual loss yet to be
established against accused. Trial court, for that purpose, had to
meticulously calculate and weigh his liability on judicious scale. At least, on
the point of actual losses attributed to accused, his case needed further
inquiry. Keeping in view the total loss and large number of accused,
imposition of maximum sentence of imprisonment was not viable. Such
was a tentative assessment only for the purpose of bail and would never
affect the merits of the case and mind of the court at the time of final
pronouncement; it was appropriate to enlarge accused on bail, in the
peculiar facts and circumstances of the case mainly on the ground of
expected prolonged trial period. Due to limited liability fixed against
accused, no likelihood appeared of his going into hiding and that bail could
not be withheld as punishment. BAIL GRANTED

PLD 2008 Karachi (DB)146. Muhammad Rasheed Hassan V/S The State
S.498 CrPC. S.18(a) & 24(b) NAB Ordinance 1999. Constitutional petition –
Pre-arrest bail

– Officer of PIA and agent of lessee-company – Charge of receiving illegal

gratification and commission. Contract by PIA for acquiring aircrafts from
lessee-company on lease. Approval of such contract by Board of directors
of PIA and High Powered Committee. Participation of PIA in proceedings
initiated in foreign court since 2005, wherein judgment had been
announced in July 2007. Filing of reference against petitioners in June
2007. Investigation report suggested about contractual obligations between
petitiones, lessee and PIA, which could be determined in suit for recovery
to be filed by PIA against petitioners. No direct evidence was available that
petitioners were involved in commission except that matter came to light
after four years of transaction, which would require adjudication at trial.
Record of Bank had not been seized for alleged commission amount
passed on from account of one petitioner to other. First petitioner aged 60
years was old chronic patient of heart ailment, diabetes and mellitus and
was under treatment for last 3 years while the second petitioner had
undergone electro physiology and was diabetic. Detention of petitioners in
jail or stay in Government Hospital might result in their collapse at any time
as they would require immediate treatment, close monitoring by a doctor in
a well equipped hospital. BBA CONFIRMED.
2008 SCMR 1135. Anwarul Haq Qureshi V/S National Accountability
Bureau

S.9(a), 24(d) & Schedule. Accused was arrested on 20-11-2006 and

reference was filed in Court on 4-6-2007. Accused sought bail on the
ground of delay in conclusion of trial----Validity----Conveyance of grounds
and substance on the basis of which accused was arrested, was the first
essential ingredient of S.24(d) of NAB Ordinance 1999, as such the
provisions of law was mandatory in nature and had to be complied with in
letter and spirit as the same was based on constitutionally guaranteed right
providing safeguards as to arrest and detention of a person embodied in
Art.10 of the Constitution. Non-compliance of such provision of the
Constitution and NAB Ordinance 1999, would render arrest and detention
illegal. BAIL GRANTED

PLD 2008 Karachi (DB) 234. Gul Hassan Saand V/S The State through
NAB

S.9. Allegations against accused were that he was possessing the property
having acquired the same from the actual owners at low price thereby
gaining huge profit by disposing of the same. On tentative sifting of
evidence collected by the prosecution, it transpired that accused had
earned amounts from the prize bonds owned by himself as well his wife,
which had cast shadow on accused’s known source of income as prima
facie those assets and property acquired by accused were disproportionate
to his known source of income. No case was made out warranting grant of
bail in favour of accused. INTERIM PRE-ARREST BAIL RECALLED.

2008 MLD 1419. Farooq Ahmed Hashmi V/S NAB (Sindh) (Karachi DB)

S.9. Allegation of corruption and corrupt practice. Accused (petitioner) had

never held any post throughout his career in government service through
which he could use his discretion or ask for bribe from any one or
somebody would have bribed him for taking any favourable decision from
him. Accused, in fact, had never held any decision making post during the
tenure of his service. Reference filed by the NAB against the accused
revealed that accused was till working at the age of 70 years in the same
department on contract basis. Had he been a corrupt person there would
have been very little chance of his re-employment. Inference, in such a
case could be drawn that a man who was doing the job even 10 years after
his retirement from the government job could justify his income if chance
was given to him to prove the same. Held, accused/petitioner present in the
court who was looking very weak and was breathing with difficulty due to
old age had succeeded in making out a case for bail specially in the
circumstances when his lawyer had claimed that he was an old patient of
hypertension, diabeties and heart. BAIL GRANTED.

PLD 2008 SC 645. Muhammad Nadeem Anwar & another V/S National
Accountability Bureau.

S.9(a)(iv) & 16(a). Delay in trial. Despite direction for conclusion of trial
within a period of ninety days, out of 54 prosecution witnesses, evidence of
only 9 could be recorded---Effect---Grant of bail could not be withheld as
punishment on accusation of non-bailable offence. Accused was entitled to
expeditious and inexpensive access to justice, which included a right to fair
and speedy trial in transparent manner without any unreasonable delay.
Such intention had been re-assured in S.16 of NAB Ordinance 1999, laying
down criteria for day to day trial and its conclusion within thirty days. Such
object did not appear likely to be achieved anywhere in the near future and
would not constitute a bar for grant of bail to accused. Truth or otherwise of
charges leveled against accused could only be determined at the
conclusion of trial after taking into consideration the evidence adduced by
both the parties Supreme Court converted petition for leave to appeal into
appeal as accused were entitled to grant of bail pending conclusion of trial.
BAIL GRANTED.
PLD 2008 Lahore 381. Rizwan Ahmad V/S National Accountability Bureau

S.9 & 18. Petitioner allegedly having demanded Rs.50,000 from

complainant for restoration of electricity connection earlier disconnected by
him, a raid was conducted on petitioner. Petitioner who allegedly was
arrested red-handed with tainted amount, remained on physical remand
and thereafter was sent to judicial lock-up by Administrative Judge of
Accountability Court. Petitioner had submitted that NAB authorities were
not competent to get the raid conducted in the matter, which fell exclusively
within the domain of Anti-Corruption authorities and submitted that the aims
and objects of NAB Ordinance 1999 were to root out corruption in the
public departments of high magnitude---Validity----Main purpose of the
promulgation of NAB Ordinance 1999 was to check large scale rampant
corruption in the public offices in particular and in the country in general.
NAB authorities, in circumstances took cognizance of cases of high
magnitude corruption and other laws on the subject of checking of
corruption from the Public Offices, such as Anti-Corruption Laws and
Criminal Law Amendment Act 1958, were not repealed and remained as
live statutes and the special courts under said statutes were very much
functional along with the investigation staff etc. Chairman NAB or any of his
delegates had no jurisdiction to pick and choose for filing reference against
anybody under the provisions of NAB Ordinance 1999 as discretion with
NAB authorities was not absolute or arbitrary. Dioscrimination in treatment
to the citizen by public authorities could not be allowed to sustain in
opposition to law on the subject as constitutional protection through Art.25
of Constitution of equality of all citizens before law had been guaranteed.
Action by NAB authorities, prima facie, was not warranted in the case
under the law as other laws on the subject could cater the need in the
shape of action against the petitioner on the application of the aggrieved
person. High Court accepted the constitutional petition of the accused and
granted him bail in circumstances. BAIL GRANTED.

NLR 2008 CrLJ 919.. Fazal-e-Hadi V/S National Accountability & another
(Karachi)
S.9 & 10. Prima facie case under S.9 & 10 would be made out against
accused who has himself offered for plea bargaining and has filed affidavit
to pay more amount than that received by him. Prima facie, the possession
of tainted money with accused as claimed by prosecution would not require
further inquiry under S.497(2) CrPC which could be a ground for bail to
accused. BAIL REFUSED.

PLJ 2008 SC 344. Manzoor Hussain Shahani V/S National Accountability

Bureau

Reference against the officer of National Bank regarding fraud,

misappropriation and embezzlement of case. Held: Case is at initial stage
and a specific amount has been deposited by the accused through
cheques under plea bargain with requiring some time, on completion
whereof the petitioner in any case would have to be released. BAIL
GRANTED..

PLJ 2008 Lahore-DB 276. Zakaullah Khan Sherwani V/S The State

NAB authorities have not collected direct evidence against petitioner. Out
of 910 witnesses only statements of four witnesses have been record.
Petitioner was employee of the company and chief executive had
transferred who subsequently withdrew such amount and he being
employee of company was not in a position to refuse the transfer of amount
and withdrawal of it by the Chief Executive of company. For the time being
there is nothing on record to controvert the assertion of the petitioner.
Petitioner has been roped in the instant case merely on surmises and
conjectures, who cannot be detained in jail for indefinite period when there
is no likelihood of conclusion of the trial in the near future as the
prosecution has cited many PWs in calendar of witnesses and only four
have been examined. On the other hand the case to the extent of petitioner
has become one of further inquiry. BAIL GRANTED