AMJAD ALI SAHITO, J.---Through instant Criminal. Bails, the applicants named above seek post- arrest bail in NAB Reference No.22/2018 (re-The State v. Ellahi Bakhsh Banbhan and others), pending trial before the Accountability Court, Sukkur.
2. At the very outset, learned advocates for the applicants/accused submits that applicants/accused are in Jail since the date of their arrest and the period of about/more than two years have been passed and out of 20 only four prosecution witnesses have been examined by the trial Court. Counsel for applicants further submits that applicants are not responsible for the delay caused in the trial of the case pending before trial Court hence they are entitled for grant of bail.
3. On the other hand, learned Special Prosecutor for NAB and Assistant Attorney general vehemently opposed for grant of bail to the applicants/accused.
4. We have heard the learned counsel for the applicants/accused, learned Special Prosecutors for NAB and also gone through the material available on record.
5. It is alleged by the NAB in Reference No.22/2018 that applicant Rameez Thaheem being Ex- Accountant/TO finance Faizganj, District Khairpur was the custodian of the record, initiated bills and the allegations-against him that he signed all the cheques for payments to contractors in violation of rules and he issued different cheques in connivance with TMO/Administrators, Transition Officers and contractors without any tendering process or award of the contracts which resulted in the loss to the national exchequer and his total liability was shown at Rs. 5,136,336/- and the allegation against the applicant/accused Naeem Akhter that he being Ex-Accountant/TO Finance Faizganj, District Khairpur was also the custodian of record and initiated bills and signed the cheques for payment to contractors in violation of rules. He in connivance with TMOs/Transition Officer/ Administrators and contractors nominated in the present Reference, issued 66 cheques without any tendering process or award of the contracts or any other document and he transferred huge government funds in his personal bank account through 3 cheques in connivance with Town officers and Administrator and in connivance with different contractors withdrew 27 cheques and his individual liability has been determined by the prosecution as Rs.
26,893,327/-.
6. It is not disputed that the applicants/accused were arrested and they are in jail for about or more than 02 years respectively. Now the question before us is that whether the delay has been caused by the applicants/accused or anyone acting on their behalf. Admittedly the Reference in the subject case was filed on 22.11.2018 against 45 accused persons including the applicants/accused, whereas, the charge was framed against the accused on 10.10.2019 and after framing of charge out of 20 witnesses, 04 prosecution witnesses were examined. Applicant/ accused Ramzeen Thaheem was shown to have been arrested on 09.11.2017 while applicant/accused Naeem Akhter. Khemtio was shown to have been arrested on 17.03.2020 and they are in custody without any progress in the matter. Such a long delay does constitute "inordinate and unconscionable delay" as held in Talat Ishaq v. National Accountability Bureau (PLD 2019 SC 112). The Hon'ble Supreme Court in the case of Talat Ishaque (supra) has held in para-23(f) that "ordinarily bail is allowed to an accused person on the ground of delay only where the delay in trial or the period of custody of the accused person is shocking, unconscionable or inordinate and not otherwise." In another case of Himesh Khan v. The National Accountability Bureau (NAB) Lahore (2015 SCMR 1092), the Hon'ble Supreme Court of Pakistan has held that;- "14. The grant of bail on account of inordinate delay in prosecution was discussed and guiding principle was laid down by this Court in the case of Riasat Ali v. Ghulam Muhammad and the State (PLD 1968 SC 353), which is to the following effect:- "Criminal Procedure Code, S. 497---Grant of bail in non-bailable offences:- Delay in prosecution of accused amounts to abuse of process of law and is a valid ground for bailing out accused however, delay in prosecution of each case as a ground for bail is to be weighed and judged, in each case on its merits."
There is also a long chain of authorities and dicta of this Court where bail has been granted on account of shocking delay in the conclusion of trial in cases falling under the NAB laws. Reference in this regard may be made to the case of Anwar Saifullah Khan v. The State (2001 SCMR 1040) where it was held that bail cannot be withheld as a punishable on the ground that the offences, the accused is charged for, are not bailable or grant of bail therein was falling within the prohibition."
7. We have also tentatively scanned the material available on the record of the case. We are of the considered view that in the period of 02 years only 04 prosecution witnesses have been examined out of 20 witnesses by the learned trial Court, for the rest of the witnesses the trial is most likely to take a sufficient period to conclude the case. In our view, Article 10(A) of the Constitution, which includes the right to an expeditious trial should be meaningful and should be fully applied to protect an under-trial prisoner from prolonged periods of incarceration during his trial due to no fault of his own.
8. In view of the above, the learned counsel for the applicants have succeeded to make out the case of the applicants for grant of bail on the ground of "inordinate and unconscionable delay".
Accordingly, the instant Cr. Bail Applications are allowed. The applicants/accused are admitted to bail subject to furnishing solvent surety in the sum of Rs.500,000.00 (Five lac) each and PR bond in the like amount to the satisfaction of the learned trial court. The learned trial Court is directed to expedite the trial and conclude the same as early as possible. In case the applicants/accused misused the concession of bail, the trial Court shall take action against him/them following the law.
9. Needless to state that any observation in the foregoing paragraphs is of tentative nature and shall not influence the learned Trial Court while handing down the Judgment. The office is directed to place a copy of this order in the aforesaid Criminal Bail Application.