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| نیب کیس لازNab case laws |
**Understanding the National Accountability Bureau (NAB) Ordinance 1999 in Pakistan**
The National Accountability Bureau (NAB) Ordinance 1999 stands as a significant legislative framework in Pakistan, aimed at combating corruption and holding individuals accountable for misuse of power and public resources. Enacted on November 16, 1999, by the then-President of Pakistan, General Pervez Musharraf, the ordinance established the NAB as an independent anti-corruption body with wide-ranging powers and responsibilities.
**Background and Purpose:**
The need for a robust anti-corruption institution in Pakistan was felt due to rampant corruption and misuse of public funds, which hindered the country's development and eroded public trust in the government. The NAB Ordinance was promulgated as part of a broader effort to address these issues and instill accountability in public officeholders and government officials.
**Key Provisions:**
The NAB Ordinance 1999 grants extensive powers to the National Accountability Bureau to investigate and prosecute cases of corruption, embezzlement, fraud, and other white-collar crimes. Some key provisions of the ordinance include:
1. **Investigation and Prosecution:** NAB is empowered to investigate and prosecute cases related to corruption and financial mismanagement. It can summon individuals, conduct raids, and gather evidence to build cases against suspects.
2. **Asset Recovery:** NAB has the authority to freeze, seize, and confiscate assets acquired through illegal means. This provision aims to deter corruption by depriving offenders of the proceeds of their crimes.
3. **Plea Bargain:** The ordinance allows for plea bargain agreements, wherein the accused can return illicitly acquired assets or pay restitution in exchange for leniency in sentencing.
4. **Accountability Courts:** Special accountability courts were established under the ordinance to expedite the trial of corruption cases. These courts have exclusive jurisdiction over NAB cases and are tasked with ensuring swift justice.
5. **Whistleblower Protection:** The ordinance provides protection to whistleblowers who report cases of corruption or misconduct. This provision encourages individuals to come forward with information without fear of retaliation.
**Challenges and Criticisms:**
While the NAB Ordinance 1999 was introduced with the noble intention of combating corruption, it has faced criticism and challenges over the years. Some common criticisms include:
1. **Selective Accountability:** Critics argue that NAB often targets political opponents or individuals perceived as threats to the government, leading to allegations of political victimization.
2. **Due Process Concerns:** There have been concerns about the violation of due process rights during NAB investigations and prosecutions. Critics argue that suspects are sometimes subjected to harassment or arbitrary detention without sufficient evidence.
3. **Plea Bargain Controversy:** The use of plea bargain agreements has been controversial, with critics alleging that it allows wealthy and influential individuals to avoid accountability by negotiating lenient settlements.
4. **Lack of Convictions:** Despite numerous investigations and prosecutions, NAB has faced criticism for its relatively low conviction rate. Some argue that this reflects weaknesses in the investigation and prosecution process.
**Conclusion:**
The NAB Ordinance 1999 represents a significant step towards combating corruption and promoting accountability in Pakistan. However, its effectiveness depends on the impartiality and integrity of the institution, as well as adherence to due process rights. Addressing criticisms and strengthening accountability mechanisms are essential for ensuring that NAB fulfills its mandate to uphold the rule of law and combat corruption effectively.
**پاکستان میں قومی احتساب بیورو (نیب) آرڈیننس 1999 کو سمجھنا**
قومی احتساب بیورو (نیب) آرڈیننس 1999 پاکستان میں ایک اہم قانون سازی کے فریم ورک کے طور پر کھڑا ہے، جس کا مقصد بدعنوانی کا مقابلہ کرنا اور اختیارات اور عوامی وسائل کے غلط استعمال پر افراد کو جوابدہ بنانا ہے۔ 16 نومبر 1999 کو اس وقت کے صدر پاکستان، جنرل پرویز مشرف کے ذریعہ نافذ کیا گیا، اس آرڈیننس نے نیب کو وسیع اختیارات اور ذمہ داریوں کے ساتھ ایک آزاد انسداد بدعنوانی ادارے کے طور پر قائم کیا۔
**پس منظر اور مقصد:**
پاکستان میں بدعنوانی کے خلاف ایک مضبوط ادارے کی ضرورت بے تحاشا بدعنوانی اور عوامی فنڈز کے غلط استعمال کی وجہ سے محسوس کی گئی، جس نے ملک کی ترقی میں رکاوٹ ڈالی اور حکومت پر عوام کا اعتماد ختم کیا۔ نیب آرڈیننس ان مسائل کو حل کرنے اور پبلک آفس ہولڈرز اور سرکاری اہلکاروں میں احتساب پیدا کرنے کی ایک وسیع کوشش کے حصے کے طور پر جاری کیا گیا۔
**اہم شرائط:**
نیب آرڈیننس 1999 قومی احتساب بیورو کو بدعنوانی، غبن، دھوکہ دہی اور دیگر وائٹ کالر جرائم کے مقدمات کی تحقیقات اور ان پر مقدمہ چلانے کے وسیع اختیارات دیتا ہے۔ آرڈیننس کی کچھ اہم دفعات میں شامل ہیں:
1. **تفتیش اور استغاثہ:** نیب کو بدعنوانی اور مالی بدانتظامی سے متعلق مقدمات کی تحقیقات اور ان پر مقدمہ چلانے کا اختیار حاصل ہے۔ یہ افراد کو طلب کر سکتا ہے، چھاپے مار سکتا ہے، اور مشتبہ افراد کے خلاف مقدمات بنانے کے لیے ثبوت اکٹھا کر سکتا ہے۔
2. **اثاثوں کی ریکوری:** نیب کو غیر قانونی طریقوں سے حاصل کیے گئے اثاثوں کو منجمد کرنے، ضبط کرنے اور ضبط کرنے کا اختیار حاصل ہے۔ اس شق کا مقصد مجرموں کو ان کے جرائم سے حاصل ہونے والی آمدنی سے محروم کر کے بدعنوانی کو روکنا ہے۔
3. **پلی بارگین:** آرڈیننس پلی بارگین کے معاہدوں کی اجازت دیتا ہے، جس میں ملزم غیر قانونی طور پر حاصل کیے گئے اثاثوں کو واپس کرسکتا ہے یا سزا میں نرمی کے بدلے معاوضہ ادا کرسکتا ہے۔
4. **احتساب عدالتیں:** کرپشن کے مقدمات کی سماعت تیز کرنے کے لیے آرڈیننس کے تحت خصوصی احتساب عدالتیں قائم کی گئیں۔ یہ عدالتیں نیب کے مقدمات پر خصوصی دائرہ اختیار رکھتی ہیں اور انہیں فوری انصاف کو یقینی بنانے کا کام سونپا جاتا ہے۔
5. **وسل بلور پروٹیکشن:** یہ آرڈیننس ان سیٹی بلورز کو تحفظ فراہم کرتا ہے جو بدعنوانی یا بدعنوانی کے کیسز رپورٹ کرتے ہیں۔ یہ شق افراد کو انتقامی کارروائی کے خوف کے بغیر معلومات کے ساتھ آگے آنے کی ترغیب دیتی ہے۔
**چیلنجز اور تنقید:**
جب کہ نیب آرڈیننس 1999 بدعنوانی سے نمٹنے کے عظیم ارادے کے ساتھ متعارف کرایا گیا تھا، لیکن اسے کئی سالوں سے تنقید اور چیلنجوں کا سامنا کرنا پڑا ہے۔ کچھ عام تنقید میں شامل ہیں:
1. **انتخابی احتساب:** ناقدین کا استدلال ہے کہ نیب اکثر سیاسی مخالفین یا حکومت کے لیے خطرہ سمجھے جانے والے افراد کو نشانہ بناتا ہے، جس سے سیاسی انتقام کے الزامات لگتے ہیں۔
2. **بعض عمل کے خدشات:** نیب کی تحقیقات اور استغاثہ کے دوران مناسب عمل کے حقوق کی خلاف ورزی کے بارے میں خدشات موجود ہیں۔ ناقدین کا استدلال ہے کہ بعض اوقات مشتبہ افراد کو کافی ثبوت کے بغیر ہراساں کیا جاتا ہے یا من مانی حراست کا نشانہ بنایا جاتا ہے۔
3. **Plea Bargain Controversy:** پلی بارگین معاہدوں کا استعمال متنازعہ رہا ہے، ناقدین کا الزام ہے کہ یہ دولت مند اور بااثر افراد کو نرم تصفیہ کے ذریعے جوابدہی سے بچنے کی اجازت دیتا ہے۔
4. **سزا کی کمی:** متعدد تحقیقات اور استغاثہ کے باوجود، نیب کو سزا کی نسبتاً کم شرح کی وجہ سے تنقید کا سامنا کرنا پڑا ہے۔ کچھ لوگ دلیل دیتے ہیں کہ یہ تفتیش اور استغاثہ کے عمل میں کمزوریوں کی عکاسی کرتا ہے۔
**نتیجہ:**
نیب آرڈیننس 1999 پاکستان میں بدعنوانی سے نمٹنے اور احتساب کو فروغ دینے کی جانب ایک اہم قدم کی نمائندگی کرتا ہے۔ تاہم، اس کی تاثیر کا انحصار ادارے کی غیر جانبداری اور دیانتداری کے ساتھ ساتھ مناسب عمل کے حقوق کی پابندی پر ہے۔ اس بات کو یقینی بنانے کے لیے کہ نیب قانون کی حکمرانی کو برقرار رکھنے اور بدعنوانی سے مؤثر طریقے سے نمٹنے کے لیے اپنے مینڈیٹ کو پورا کرتا ہے، تنقیدوں سے نمٹنا اور احتساب کے طریقہ کار کو مضبوط بنانا ضروری ہے۔
Case laws on
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 GRANTEDNAB 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
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