IRFAN AHMED Versus FEDERATION/GOVERNMENT OF PAKISTAN
ORDER
MUHAMMAD IQBAL KALHORO, J.--- This order shall dispose of above captioned petitions filed by the petitioners for post arrest bail in Reference No.14/2017 (State v. Muhammad Nasir and others) pending before Accountability Court, at Karachi. Most of the petitions have been filed second time for same relief. Petitioner Muhammad Arif Khan's (C.P.No.D-349/2020) is however, first petition for post arrest bail. In all the petitions common grounds of hardship and rule of consistency have been taken. It is stated that petitioners have remained in jail for more than two years and still evidence of only one witness partially has been recorded; and that co-accused namely Syed Atif Hussain Naqvi, Muhammad Feroz, Faheemuddin and Sarfraz Ahmed have been granted bail by this court vide order dated 09.12.2019, whose case is on same footings to that of present petitioners, as, such they are also entitled to same relief.
2. Briefly case of the prosecution is that Karachi Development Authority (KDA) was tasked with development within the Karachi City and in that connection KDA had reserved a number of amenity plots in KDA Scheme No.36, Karachi, which could not be allotted, exchanged and/or transferred for residential and/or commercial purposes. However, the officers/officials of KDA, nominated in the Reference, with conscious knowledge misused their authority and indulged in allotting, transferring 23 amenity plots in Gulistan-e-Jauhar, KDA Scheme No.36, Karachi, by creating 296 residential plots (china cutting) illegally and un-authorizedly for pecuniary benefits/illegal gains. The co-accused/beneficiaries in connivance with such officials received the said plots through fake allotments, challans and then sold out the same to the purchasers, who were completely unaware of the scam, thereby earned huge profits for themselves and caused heavy losses to the Government exchequer.
3. We have heard learned counsel for the parties and perused the record with their assistance. Learned Special Prosecutor NAB along with I.O. of the case has opposed these petitions. While deciding the petitions of co-accused filed for same relief, we have observed in the order dated 09.12.2019, as under:-
"To ascertain as to whether the delay in the trial has been caused or occasioned by the petitioners or the prosecution, we have carefully perused the diary sheets annexed with the petitions and the report submitted by the learned trial court as to the progress of the case. A bare perusal of the record reflects that the Reference was filed on 28.04.2017 and the petitioners were arrested on 23.12.2017, and are, thus, behind the bars for a period of more than 23 months. It is also to be noted that the directions given by this court as well as the honourale Supreme Court for completion of trial have not been complied with by the trial court. As per case diaries the charge was framed on 07.12.2017 and out of 23 witnesses only one P.W. Jameel Ahmed Baloch has been partly examined on 07.04.2018 and 08.05.2018 and since then his cross-examination is reserved for want of his appearance before the trial court. The diary sheet dated 11.06.2019 shows that the said P.W was arrested by NAB Rawalpindi in the fake account case and was remanded to judicial custody on 16.05.2019. The record does not reflect as to whether any serious effort was made either by the prosecution or the learned trial court for causing production of P.W. Jameel Ahmed Baloch for the purpose of cross-examination or in his absence procuring attendance of other witnesses. The petitioners are behind the bars since 23.12.2017 and despite directions of this court as well as Hon'ble Supreme Court, the learned trial court has failed to complete the trial within specified time. During hearing we asked learned Special Prosecutor NAB therein what period, the said witness could be produced by NAB in the trial court for recording of his further evidence, he could not give any timeline for this purpose, which would essentially mean that the trial has been virtually struck up and there is no likelihood of any progress in it in near future. Hence, in view of this background of the matter, the delay is not caused or occasioned due to any inaction or impediment and/or any deliberate attempt on the part of the petitioners or their counsel. As noted above out of 23 witnesses, only one P.W has been partly examined so far. Naturally, it would take considerable time for recording evidence of remaining witnesses and keeping in view the present speed, velocity and pace of trial, there is no likelihood of the trial being concluded in near future. Object of trial, is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any shocking, unreasonable and inordinate delay".
4. Since then no substantial progress has been made in the trial; the situation is still the same, there is only incomplete evidence of P.W. Javed Ahmed, on record. The case of the petitioners is on same footings, they have already remained in jail for about 02 years and allegations against them are more or less the same levelled against the co-accused already granted bail. However, case of petitioner Muhammad Arif does not fall within category of hardship as he was arrested only on 27.11.2018 but in the peculiar circumstances when the star witness of NAB i.e. P.W. Javed Ahmed Baloch himself is in custody with NAB Rawalpindi, and there is no chance of his appearance before the trial court in near future plus as we are extending relief of bail to all the co-accused on the rule of consistency, we see no reason to deny the same relief to the present petitioner Muhammad Arif.
5. In view of above, these petitions are allowed. The petitioners are admitted to bail subject to furnishing a solvent surety in the sum of Rs.10,00,000/ each and P.R. bond in the like amount to the satisfaction of Nazir of this court. Learned trial court is, however, directed to expedite the trial and conclude the same within a reasonable time by taking coercive steps to procure attendance of the witnesses.
SA/I-6/Sindh Bail granted.