KARACHI: The Sindh High Court (SHC) has ruled that conditioning bail on furnishing a surety equal to the full liability amount in every case filed by the National Accountability Bureau (NAB) is “improper and inconsistent” with the principles set by the apex court.

Allowing a criminal revision application seeking reduction in surety amount, a two-judge bench comprising Justice Arshad Hussain Khan and Justice Syed Faiz-ul-Hassan Shah emphasised that the apex court did not approve such uniform bail conditions.

NAB had filed a reference against government contractor Mohammad Iqbal and others regarding alleged embezzlement of over Rs120.7 million. An accountability court in Hyderabad had granted Iqbal bail in March while fixing the surety amount in a sum of rupees equivalent to amount of liability alleged by NAB.

The applicant invoked the jurisdiction of SHC under Section 439 of the criminal procedure code, seeking reduction of surety amount after the trial court dismissed an identical application.

Bench observes bail must reflect case facts, not fixed amounts; reduces amount payable by govt contractor to Rs15m from Rs120.7m

However, the special prosecutor of NAB raised strong legal objection about the maintainability of the criminal revision application being barred under Section 9(b) of the National Accountability Ordinance, 1999, ousting the jurisdiction of all courts, including the high court.

In the detailed order authored by Justice Shah, the bench said that Article 10-A guaranteed the right to a fair trial and due process and the apex court had consistently upheld that statutory provisions cannot override fundamental rights, particularly the right to a fair trial and access to justice under Article 4.

The Supreme Court had examined the constitutionality of various provisions of NAB including Section 9(b) and clarified that a statutory ouster of jurisdiction for all courts did not affect the high court’s authority to grant bail under Article 199 of the Constitution, it added.

The bench also observed that constitutional, supervisory and inherent jurisdiction of the high court remained intact despite legislative restrictions, ensuring that fundamental rights, including bail considerations, were protected within the framework of judicial review as well as where no alternate remedy existed or where intervention was necessary to prevent miscarriage of justice.

It noted that the legislature had framed a policy by inserting Section 25 in the Ordinance and if bail granting order was subject to demand and depended upon equivalent surety amount securing liability amount in every NAB case, it would seriously oppose the judicial doctrine and settled principles.

It further said that every case had its own peculiar facts and circumstances and it would virtually render Section 25-B redundant, which was indeed the concept of plea bargaining.

“This concept of plea bargaining has purposely given by the legislatures to the respondent-NAB and it would verge the rule of criminal jurisprudence which overwhelmingly accepted that the liabilities would be decided after the recording of evidence. It is settled law that a person presumed innocent until proven guilty of a charge,” it added.

The bench also said that the bail in question even otherwise had been granted on the medical grounds due to serious health condition of the applicant.

“Conversely, the judicial proprietary demands that no uncertainty exists in the judicial orders for instance if, the applicant before us after recording of evidence acquitted by the Court, he would get the money back and in case of conviction after lengthy trial he would engage the NAB into a plea bargaining process once he has taken into custody, therefore, in our humble opinion the conditional bail order subject to the furnishing of surety equivalent to the liability amount in every NAB case is improper and inappropriate in the light of principles for bail settled by Hon’ble Supreme Court in case Muhammad Taimur (supra),” it added.

The bench set aside the impugned order of the trial court and reduced in the surety sum to Rs15m.

It asked the SHC registrar to communicate this order amongst judges of the accountability courts across the province, additional registrar of the high court and NAB chairman for necessary compliance.

Published in Dawn, June 2nd, 2025