Thursday, 11 December 2014

Bail Granted on delay in Justice

P L D 2006 Lahore 162
Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ
Sardar MUHAMMAD NASEEM---Petitioner
Versus
JUDGE, ACCOUNTABILITY COURT, LAHORE---Respondent
Writ Petition No.13901 of 2005, decided on 19th January; 2006.
 (a) Criminal trial-
---Justice delayed is justice denied---Rights of accused and obligation of the State pointed out.
 (b) National Accountability Ordinance (XVIII of 1999)---
----S. 16(a)---Trial of offences---Tenure of trial---Rationale behind enactment of S.16(a) National Accountability Ordinance, 1999 elucidated---High Court observed that a question for consideration of the concerned authorities would be whether the prosecutors working for National Accountability Bureau and its different forums were respecting the provision of S.16(a) of the Ordinance or not and were skilled for meeting the requirements of law and that it was for the authorities to take curative measures so that the intention and the spirit of law was respected in the matter of the tenure of trial.
The offence may be of a very serious nature calling for a prolonged trial but it is not expected to be an unending exercise.
The object of criminal justice is to confront a criminal with the charge as early and precisely as possible while following the due process and not to punish him before the verdict through a prolonged incarceration. There is truth in the proposition that justice delayed is justice denied.
In cases which end in the acquittal of an accused, a question often arises as to who will be responsible for his agony, pain and hardship due to the prolonged period of his incarceration and the delayed trial. Whereas, in case he remains on bail he can still be made to suffer an imprisonment after the trial.
An accused is not only entitled to a fair trial but also to a proper and humane treatment. A proper treatment envisages an honest investigation, an honest preparation of the record and the charge-sheet and a trial without delay.
A State is under an obligation to ensure that its Courts were well-equipped with the required manpower for handling the trials with dispatch. Likewise the prosecutors are required to be equipped with the required skills essential for establishing a foolproof case before a Court without much cost of time.
Section 16(a) of the National Accountability Ordinance, 1999, has been enacted with such a rationale. It has laid a period of 30 days for disposing of a trial.
A question for consideration of the concerned authorities will be whether the prosecutors working for NAB and its different forums were respecting this important provision of the law or not and were skilled for meeting the requirements of law? Case like the present one however, does not give a commendable impression about them.
It is now for the authorities to take curative measures so that the intention and the spirit of law is respected in the matter of the tenure of a trial otherwise, as is seen in case of Anti-Corruption Laws, the NAB law will also lose its purpose while defeating the expectations and aspirations attached to the law. The entire desire for elimination of corruption and corrupt practices through expeditious trials will then be a far cry and ultimately the public confidence will get totally shattered. Who will then bridge the credibility gap?
Abdul Aziz Khan Niazi v. The State through Chairman NAB, Islamabad PLD 2003 SC 668; Khalid Saigol v. The State PLD 1962 SC 495; Ahmad Yar v. State 2000 YLR 407 and Saeed Ullah Somoroo v. State through NAB 2004 SCMR 660 ref.
 (c) National Accountability Ordinance (XVIII of 1999)---
----S. 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bail, grant of---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 released 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.
A.K. Dogar for Petitioner.
M.Asad Manzoor Butt for NAB.
ORDER
Sardar Muhammad Naseem, petitioner is asking for his release on bail through this constitutional petition. He is involved in Reference No.24 of 2001 and is in incarceration since January, 2001. There is also a history before this arrest. He was released on bail before arrest by the Special Judge, Anti-Corruption, Lahore way back in 1995, later his bail was confirmed and according to the learned counsel this happened because for several months the learned Special Judge, Anti-Corruption had been demanding from the prosecution to produce such tangible incriminating evidence which may deny him the benefit of bail.
2. Later when the petitioner was taken into custody by NAB authorities his trial proceeded and that too has not been accomplished. According to the learned counsel for the petitioner in about five years which have elapsed there has been as many as 222 adjournments out of which 141 were sought by the prosecution itself.
3. The main allegation against the petitioner is that while working in the D.C. Office he became party to a fraud and further allegation against him is that he had been endorsing some bogus vouchers in consultation with his higher officers which pertained to refund of stamp papers, etc.
4. According to the learned counsel for the petitioner whereas this is a classical case of delay at the end of NAB and the very fact that so many adjournments had been granted gives arise to the inference that the prosecution is still looking in askance for incriminating evidence for getting the conviction of the petitioner otherwise, this delay which is inordinate and exceptional would not have taken place.
5. Learned counsel for the petitioner further went on to say that the delay is absolutely contrary to the natural rule of justice, fairness and the rationale contemplated under section 16(a) of the National Accountability Ordinance, 1999 which requires the Court to accomplish the trial within the prescribed time which according to the section itself was 30 days. It is said that when the prosecution was itself violating the Law a citizen has to be protected. It may be pointed out that previously vide orders of this Court dated 14-12-2005, we had observed as follows:-
"2. Learned counsel for the petitioner has pointed out that 222 adjournments have taken place in this case which is pending since about five years and the completion of the trial is nowhere in sight. Learned counsel is of the view that with this speed the matter may not be over for another two years. That after the prosecution completes its evidence the defence will also have to produce the evidence.
3. Anyway according to the learned Deputy Prosecutor General NAB the case is about to be over and if that is so then let him report back next week and if the case is decided by then this matter will be over otherwise we will hear the bail application. Fix in the next week."
The trial did not end and so we decided to hear this petition after our PLD orders of 17-1-2006.
6. Learned counsel for NAB while explaining the position from his side, stated that the case against the petitioner was of a very serious ' nature and certainly this will end in his conviction. According to him, the petitioner also was a contributory factor against adjournments.
7. The offence may be of a very serious nature calling for a prolonged trial but we do not expect this to be an unending exercise.
8. The object of criminal justice is to confront a criminal with the charge as early and precisely as possible while following the due process and not to punish him before the verdict through a prolonged incarceration. There is truth in the proposition that justice delayed is justice denied.
9. In cases which end in the acquittal of an accused, a question often arises as to who will be responsible for his agony, pain and hardship due to the prolonged period of his incarceration and the delayed trial. Whereas, in case he remains on bail he can still be made to suffer an imprisomnent after the trial.
10. An accused is not only entitled to a fair trial but also to a proper and humane treatment. A proper treatment envisages an honest investigation, an honest preparation of the record and the charge-sheet and a trial without delay.

11. A State is under an obligation to ensure that its Courts were well-equipped with the required manpower for handling the trials with dispatch. Likewise, the prosecutors are required to be equipped with the required skills essential for establishing a foolproof case before a Court without much cost of time.
12. Section 16(a) of the National Accountability Ordinance, 1999, has been enacted with such a rationale. It has laid a period of 30 days for disposing of a trial.
13. A question for consideration of the concerned authorities will be whether the prosecutors working for NAB and its different forums were respecting this important provision of the law or not and were skilled for meeting the requirements of law? This case however, does not give a commendable impression about them.
14. It is now for the authorities to take curative measures so that the intention and the spirit of law is respected in the matter of the tenure of a trial otherwise, as we have seen in case of Anti-Corruption Laws, the NAB law will also lose its purpose while defeating the expectations and aspirations attached to the law. The entire desire for elimination of corruption and corrupt practices through expeditious trials will then be a far of cry and ultimately the public confidence will get totally shattered. Who will then bridge the credibility gap?
15. If any case law is required on what has been stated above, reference may be made to the following cases: (1) Abdul Aziz Khan Niazi v. The State through Chairman NAB, Islamabad PLD 2003 SC 668, (2) Khalid Saigol v. The State PLD 1962 SC 495, (3) Ahmad Yar v. State 2000 YLR 407 and (4) Saeed Ullah Somoroo v. State through NAB 2004 SCMR 660.
16. A copy of the order of this typical case in 'hand be sent to the Chairman, NAB by name by the Deputy Registrar (Judicial) of this Court in a sealed cover marking it as `confidential' for such necessary action as be needed in the national interest.
17. Coming back to this case and while keeping in view its history, it is expected that the trial will take more time. The defence has as yet to produce its witnesses and thus the petitioner will suffer further incarceration. We are, therefore, releasing the petitioner on ad interim post arrest bail provided he furnishes bail bond in the sum of rupees one B million along with a respectable surety of Lahore in the same amount to the satisfaction of the learned trial Court.
18. If released on bail, the petitioner shall keep appearing on every date fixed by this Court and the Court below, otherwise, this order may be recalled. The trial Court shall also take into custody his passport before he is released on bail.

M.B.A./M-20/L                                                                                               Bail granted.

1 comment:

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