******** PLD 2019 SC 112 **********
Bail in NAB Cases.
(a) Section 16(a) of the National Accountability Ordinance, 1999 speaks of prosecution of an accused person in an Accountability Court and hearing of the case by such Court on day to day basis so as to be disposed of within thirty days and it does not speak of the period of custody of the accused person before or during the trial.
(b) Section 16(a) of the National Accountability Ordinance, 1999 does not contemplate or provide for bail for an accused person if the timeframe for the trial mentioned therein is overstepped. In fact section 9(b) of the said Ordinance expressly ousts the jurisdiction of an Accountability Court in the matter of grant of bail to an accused person on any ground whatsoever.
(c) The word “shall” used in section 16(a) of the National Accountability Ordinance, 1999 has been used in the context of conclusion of a trial by an Accountability Court and it is directory in nature and not mandatory because it does not provide for a penalty or a consequence in case of its nonobservance or non-compliance. It does not provide that if the stipulated timeframe is not adhered to by an Accountability Court in the matter of conclusion of a trial then the prosecution of the accused person would stand terminated and he would be deemed to have been acquitted or that the accused person would be entitled to be admitted to bail on such ground.
(d) In an appropriate case through exercise of its jurisdiction under Article 199 of the Constitution a High Court may grant bail to an accused person arrested in connection with an offence under the National Accountability Ordinance, 1999 and section 9(b) of the said Ordinance does not affect the jurisdiction of a High Court conferred upon it by the Constitution. The constitutional jurisdiction of a High Court is, however, an extraordinary jurisdiction meant to be exercised in extraordinary circumstances and not in run of the mill cases or as a matter of course.
(e) There is hardly any precedent available where a High Court or this Court had admitted an accused person to bail exclusively on the ground that he had remained in custody for over thirty days or his trial had not concluded within thirty days in terms of section 16(a) of the National Accountability Ordinance, 1999, except a couple of cases wherein the factual background and the ratio decidendi of the case of Aga Jehanzeb (supra) had not been correctly appreciated on account of lack of proper assistance.
(f) Ordinarily bail is allowed to an accused person on the ground of delay only where the delay in the trial or the period of custody of the accused person is shocking, unconscionable or inordinate and not otherwise. The primary consideration for grant of bail on the ground of such delay is undue hardship and more often than not prima facie merits of the case against the accused person are also looked into before admitting him to bail on the ground of delay.
(g) Before admitting an accused person to bail on the ground of hardship caused by a shocking, unconscionable or inordinate delay a High Court or this Court also looks for the reasons for the delay and if some significant or noticeable part of the delay is found to be attributable to the accused person then the relief of bail is withheld from him.
(h) Even in cases of delay ordinarily bail is not granted straightaway and a direction is issued to the trial court in the first instance to conclude the trial within a period fixed for the purpose by the Court itself (as opposed to the time fixed by section 16(a) of the National Accountability Ordinance, 1999 which has already expired). In a case where the Court fixes a time for conclusion of the trial sometimes the Court also observes that in case of non-compliance of the Court’s direction the accused person would automatically stand admitted to bail and on other occasions the Court observes that in case of non-compliance of the Court’s direction the accused person may approach the High Court again for his bail.
(i) Even in cases where a direction is issued by the High Court or this Court regarding conclusion of a trial within a specified period fixed by the Court for the purpose admission of the accused person to bail upon non-compliance of such direction is not always automatic, be it a case under the National Accountability Ordinance, 1999 or under any other law. In the cases of Ashok v. The State (1997 SCMR 436), Jadeed Gul v. The State (1998 SCMR 1124), Muhammad Aslam v. The State (1999 SCMR 2147) and Aga Jehanzeb v. N.A.B. and others (2005 SCMR 1666) the accused person was admitted to bail or was deemed to have been admitted to bail in such an eventuality but in the case of Nisar Ahmed v. The State and others (PLD 2016 SC 11) this Court had refused to admit the accused person to bail even on such a ground. It goes without saying that a direction issued by a superior Court to the trial court to conclude a trial within a specified period is an administrative direction and noncompliance of such a direction by the trial court for whatever reason may not entitle the accused person to claim bail as of right.
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