KARACHI: SHC for different bail criteria in Ehtesab cases
By Our Reporter
KARACHI, Oct 29: A division bench of the Sindh High Court on Monday held that criterion for bail in accountability cases would be different from that laid down for cases under other laws and it should take into account the hardship and improbability of convictions.
The bench, comprising Justice S.A. Rabbani and Justice Mohammad Afzal Soomro, ruled while dismissing a bail application of Asher Jan, a sales manager of Murree Brewery against whom a reference had been filed by the NAB on charges of evasion of excise duty and other levies during 1997-98.
Former Sindh Minister Muhammad Ismail Rahu, ex-minister for food Maqbool Ahmed Shaikh and nine others, were also booked in this case.
In the judgment, Justice S. A. Rabbani held that “the High Court had powers to grant bail in suitable cases and this suitability can be judged on the grounds of hardship and, prima facie, high improbability of conviction of the accused on the basis of material collected by the prosecution against him”.
While dealing with the case, he also observed in the judgment that mention of section 426, 491 and 561-A Cr.P.C. in Section 9(b) of the NAB Ordinance is redundant.
The accountability reference No. 10 of 2001 was filed by the Chairman of the National Accountability Bureau against some officials of the Sindh excise department as well as some other persons on the charge of evasion of excise duty and other levies by way of import of wine from Murrey Brewery Rawalpindi through use of fake permits.
The applicant, who was manager sales of Murrey Brewery, Rawalpindi, was one of the accused persons.
He filed an application for his pre-arrest bail which was declined and, thereafter, the applicant surrendered before the trial court.
After his remand to custody, the present application was filed for his bail.
Justice Rabbani observed that the provision in respect of bail in the cases registered on references made by National Accountability Bureau is contained in section 9(b) of the National Accountability Bureau Ordinance, 1999.
After two amendments in the National Accountability Bureau (Amendment) Ordinance 2001 (Ordinance No. XXXV of 2001), Section 9(b) said “all offences under this Ordinance shall be non- bailable and notwithstanding anything contained in Sections 426, 491, 497, 498 and 561-A, or any other provision of the Code, or any other law for the time being in force, no court shall have a jurisdiction to grant bail to any person accused of any offence under this Ordinance”.
In section 5 (g) of the Ordinance, the court has been defined to mean an accountability court.
Thus, section 9(b) of the Ordinance totally ousts jurisdiction of the trial court to grant bail in accountability cases, he held.
Words “including the High Court” were inserted in section 9(b) through Ordinance No. IV of 2000, and, simultaneously, under the same Ordinance, sections 426 and 491 were also inserted. The intention behind these insertions was obviously to put a bar on the jurisdiction of the High Court to grant bail in such cases.
However, this bar has now been removed through amendment made by Ordinance No. XXXV of 2001 and now the High Court can exercise its normal jurisdiction for grant of bail in accountability cases, Justice Rabbani observed.
But the question is, how the total ouster of jurisdiction of the trial court in respect of bail affects the jurisdiction of the high court for grant of bail in these cases.
The intention of the legislator cannot merely be to transfer this exercise from the trial court to the High Court without any purpose.
The total ouster of jurisdiction of the trial court in respect of bail reflects the legislator’s intention that bail in these cases should not be granted normally on the criterion for the purpose of bail in cases under other laws, because otherwise grant of bail by the High Court viz the appellate court, instead of the trial court, in the first instances, would be without any wisdom.
“Thus, the criterion for grant of bail in accountability cases would be different from that laid down for the cases under other laws. The high court has powers to grant bail in suitable cases and this suitability can be judged on the grounds of hardship and, prima facie, high improbability of conviction of the accused on the basis of material collected by the prosecution against him,” held Justice Rabbani.
He observed that Ordinance XXXV of 2001 has omitted the words “including the High Court” from section 9(b) of the Ordinance, 1999, to remove the bar on the jurisdiction of the High Court to grant bail in these cases, but sections 426, 491 and 561-A of the Criminal Procedure Code mentioned in this section have not been omitted.
Section 9(b) of the NAB Ordinance only prohibits the Accountability Courts from granting bail: Reference to sections 426, 491, and 561-A Cr.P.C. in this section is, therefore, absolutely unnecessary because these sections relate to powers of High Court and not that of the accountability courts. Mention of sections 426, 491 and 561-A, Cr.P.C. in section 9(b) of the NAB Ordinance is thus redundant, he said in the judgment.
The case of the present applicant is not one of hardship as he has surrendered before the trial court only recently when his pre- arrest bail was declined.
As regards the other aspect of the case, M.A. Kazi, counsel for the applicant, submitted that there was no evidence against the applicant and the evidence of 17 witnesses examined by the Investigation Officer in this case did not implicate the applicant.
He referred to the statements of prosecution witnesses and submitted that almost all of them did not implicate his client. It was, however, not disputed that the present applicant was sales manager of Murrey Brewery Limited, Rawalpindi, during the period when alleged evasion of excise duty was made by import of wine from Murrey Brewery Limited, Rawalpindi, by use of fake import permits.
Aamer Naqvi, counsel for NAB, submitted that the fake permits were in the name of the present applicant.
According to him, relevant documents were recovered from possession of the applicant and he was involved in the transaction.
The evidence is yet to be examined and evaluated by the trial court and, in the circumstance of this case, it would not be appropriate to give a finding of high improbability of involvement of the present applicant in the transaction and gains thereof, the judgment said.
“We, therefore, find that this is not a case fit for grant of bail at this stage. The application is dismissed accordingly”, held the bench.
