IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Mian Saqib Nisar, HCJ 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Sh. Azmat Saeed 
Mr. Justice Faisal Arab 
Mr. Justice Munib Akhtar 
 
 
Civil Petition No. 632 of 2018 
(Against the judgment dated 31.01.2018 passed by the High Court 
of Balochistan, Quetta in Civil Petition No. 1300 of 2017) 
 
 
Tallat Ishaq  
…Petitioner 
 
 
 
 
 
 
versus 
 
National Accountability Bureau through its Chairman, etc. 
…Respondents 
 
 
For the petitioner: 
Syed Iftikhar Hussain Gillani, Sr. 
ASC 
 
For the respondents:  
Mr. 
Haider 
Ali, 
Additional 
Prosecutor-General Accountability 
 
Date of hearing: 
 
 
01.10.2018 
 
 
 
JUDGMENT  
 
 
 
Asif Saeed Khan Khosa, J.: 
 
Criminal Miscellaneous Application No. 2941 of 2018 
 
 
This miscellaneous application is allowed and the documents 
appended therewith are permitted to be brought on the record of 
the main petition. Disposed of.  
 
Civil Petition No. 632 of 2018 
2
Civil Petition No. 632 of 2018 
 
2. 
Through this petition Tallat Ishaq petitioner has sought leave 
to appeal against the judgment dated 31.01.2018 passed by a 
learned Division Bench of the High Court of Balochistan, Quetta in 
Constitution Petition No. 1300 of 2017 whereby post-arrest bail 
was refused to him in Reference No. 6 of 2017 filed by the National 
Accountability Bureau, Balochistan, Quetta against him and 
others under section 18(g) read with section 24(b) of the National 
Accountability Ordinance, 1999.  
 
3. 
We have heard the learned counsel for the parties at some 
length and have gone through the relevant record of the case with 
their assistance.  
 
4. 
It has been alleged by the prosecution that in his capacity as 
an Office Superintendent in the office of the Director Development, 
Quetta Division the petitioner has acquired assets in his own name 
and also in the names of his wife and others and such acquisition 
of assets was beyond the known sources of income of the 
petitioner. According to the prosecution the petitioner has acquired 
seventeen immovable properties worth Rs. 9,33,60,982/- and he 
also possesses six vehicles worth Rs. 1,40,62,500/-. We note that 
in grounds (I) and (J) taken in the memorandum of the present 
petition the petitioner has taken contradictory stands inasmuch as 
on the one hand he has maintained that the relevant properties 
were purchased by somebody else through payments made by that 
person through cheques and it is that person who is the owner of 
those properties but in the same breath the petitioner has also 
maintained that he had enough means to purchase the relevant 
properties. The impugned judgment passed by the High Court 
shows that the High Court had felt satisfied that sufficient material 
was available on the record of investigation prima facie establishing 
that reasonable grounds existed to believe in the petitioner’s 
involvement in the alleged offence. In that backdrop instead of 
seriously pressing this petition on the merits of the petitioner’s 
Civil Petition No. 632 of 2018 
3
case the learned counsel for the petitioner has mainly argued that 
the petitioner was arrested in connection with this case on 
01.08.2017 but his trial has not so far been completed which delay 
entitles the petitioner to be admitted to bail during the pendency of 
his trial. In this connection the learned counsel for the petitioner 
has relied upon the provisions of section 16(a) of the National 
Accountability Ordinance, 1999 according to which the trial of 
such a case is to be conducted on a day to day basis and has to be 
disposed of by an Accountability Court within a period of thirty 
days. Relying upon the judgments handed down by this Court in 
the cases of Aga Jehanzeb v. National Accountability Bureau and 
others (2005 SCMR 1666), Muhammad Nadeem Anwar and another 
v. National Accountability Bureau and others (PLD 2008 SC 645), 
Anwarul Haq Qureshi v. National Accountability Bureau and another 
(2008 SCMR 1135) and Asfandyar Khan Kakar v. Accountability 
Court, Quetta and another (unreported order passed by this Court 
on 06.09.2017 in Civil Petition No. 2920 of 2017) he has argued 
that on account of failure of the trial court to conclude the 
petitioner’s trial within a period of thirty days bail is to be granted 
to him “automatically” as held by this Court in the above 
mentioned precedent cases. As against that the learned Additional 
Prosecutor-General Accountability appearing for the respondents 
has submitted that it has already been held by this Court in many 
cases that the provisions of section 16(a) of the National 
Accountability Ordinance, 1999 are merely directory in nature and 
non-compliance of the said provisions does not entitle an accused 
person to claim bail as of right and in support of his submissions 
he has referred to the cases of Faisal Hussain Butt v. The State and 
another (2009 SCMR 133), Nisar Ahmed v. The State and others 
(PLD 2016 SC 11), Khalid Humayun v. The NAB through D.G. 
Quetta and others (PLD 2017 SC 194) and Chairman NAB, 
Islamabad v. Bakhat Zameen and another (unreported judgment of 
this Court passed on 26.08.2016 in Civil Petition No. 1542 of 
2016). 
 
Civil Petition No. 632 of 2018 
4
5. 
As this petition has not seriously been pressed by the 
learned counsel for the petitioner on the merits of the petitioner’s 
case and as some judgments/orders passed by this Court in 
different cases in the past in respect of the provisions of section 
16(a) of the National Accountability Ordinance, 1999 are not being 
understood in their correct perspective, therefore, we have decided 
to clarify the true import and scope of the said provisions after 
considering all the precedent cases available on the subject so far 
and to render an authoritative pronouncement on the issue. 
 
6. 
Section 9(b) of the National Accountability Ordinance, 1999 
ousts the jurisdiction of all Courts to grant bail to any person 
accused of committing an offence under the said Ordinance and it 
provides as follows: 
 
“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 jurisdiction to 
grant bail to any person accused of any offence under this 
Ordinance.” 
 
However, in the case of Khan Asfandyar Wali and others v. 
Federation of Pakistan through Cabinet Division, Islamabad and 
others (PLD 2001 SC 607) this Court had clarified that a statutory 
ouster of jurisdiction of all Courts could not affect the jurisdiction 
of a High Court to grant bail in such cases under Article 199 of the 
Constitution. This Court had observed in that case as under: 
 
“197. It was held in the case of Zafar Ali Shah (supra) that the 
powers of the superior Courts under Article 199 of the 
Constitution 
“remain 
available 
to 
their 
full 
extent 
…. 
Notwithstanding anything contained in any legislative instrument 
enacted by the Chief Executive.” Whereas, section 9(b) of the NAB 
Ordinance purports to deny to all Courts, including the High 
Courts, the jurisdiction under sections 426, 491, 497, 498 and 
561-A or any other provision of the Code of Criminal Procedure or 
any other law for the time being in force, to grant bail to any 
person accused of an offence under the NAB Ordinance. It is well 
settled that the Superior Courts have the power to grant bail 
under Article 199 of the Constitution, independent of any 
statutory source of jurisdiction such as section 497 of the 
Criminal Procedure Code, section 9(b) of the NAB Ordinance to 
that extent is ultra vires the Constitution. Accordingly, the same 
be amended suitably.”  
Civil Petition No. 632 of 2018 
5
 
After that clarification by this Court it is now settled that in an 
appropriate case a person accused of an offence under the National 
Accountability Ordinance, 1999 may approach a High Court for his 
bail by invoking Article 199 of the Constitution. 
 
7. 
Section 16(a) of the National Accountability Ordinance, 1999 
provides that a trial of an offence under the said Ordinance ought 
to be concluded within thirty days. The said section reads as 
follows: 
 
“Notwithstanding anything contained in any other law for the 
time being in force an accused shall be prosecuted for an offence 
under this Ordinance in the Court and the case shall be heard 
from day to day and shall be disposed of within thirty days.” 
 
On the strength of the said statutory requirement regarding 
conclusion of a trial of an offence under the National 
Accountability Ordinance, 1999 “within thirty days” the learned 
counsel for the petitioner has argued that the petitioner was 
arrested in connection with this case on 01.08.2017 but his trial 
has not so far been completed which delay entitles the petitioner to 
be admitted to bail “automatically” till the conclusion of his trial. 
For advancing this argument the learned counsel for the petitioner 
has relied upon the cases of Aga Jehanzeb v. National 
Accountability Bureau and others (2005 SCMR 1666), Muhammad 
Nadeem Anwar and another v. National Accountability Bureau and 
others (PLD 2008 SC 645), Anwarul Haq Qureshi v. National 
Accountability Bureau and another (2008 SCMR 1135) and 
Asfandyar Khan Kakar v. Accountability Court, Quetta and another 
(unreported order passed by this Court on 06.09.2017 in Civil 
Petition No. 2920 of 2017). In order to examine whether the 
learned counsel’s understanding of the said precedent cases is 
correct or not it is necessary to take up the said cases one by one. 
 
8. 
In the case of Aga Jehanzeb v. N.A.B. and others (2005 
SCMR 1666) the petitioner facing a trial before an Accountability 
Civil Petition No. 632 of 2018 
6
Court was in continuous custody for the last two years, the 
complete Challan had not yet been submitted in the case and the 
petitioner’s trial was not in sight. The High Court had dismissed a 
Writ Petition filed by the petitioner seeking bail and a direction had 
been issued by the High Court to the investigating agency to 
submit the Challan before the trial court within a fortnight and a 
direction was also issued by the High Court to the trial court to 
conclude the trial expeditiously, possibly on day to day basis. 
When the petitioner approached this Court for his bail the matter 
was disposed of by this Court in the following terms:  
 
“When questioned that under the NAB Ordinance trial is to 
conclude within 30 days Mr. M. Ibrahim Satti, Advocate Supreme 
Court submitted that this time period is not mandatory but 
directory. For the time being we would refrain from expressing 
any opinion as to whether the timeframe is mandatory or 
directory, but would direct that after submission of challan in this 
case on 7th of May, 2003 if the trial does not commence or 
conclude within 30 days from the said date, petitioner would 
automatically become entitled to the grant of bail subject to his 
furnishing bail bonds in the sum of Rs. five millions with one 
surety in the like amount to the satisfaction of the trial Court at 
Lahore.” 
 
We find that the learned counsel for the petitioner in the present 
case is not justified in concluding from the said precedent case 
that in every case where trial of an offence under the National 
Accountability Ordinance, 1999 is not concluded within thirty days 
the accused person becomes entitled to bail “automatically”. In the 
precedent case mentioned above the accused person was behind 
the bars for the last about two years and instead of allowing bail to 
him this Court had fixed a target date for commencement or 
conclusion of his trial and it was ordered that in case of failure of 
the trial court to meet that target fixed by this Court the accused 
person would “automatically become entitled to the grant of bail”. 
In the said case, in view of its peculiar facts, the accused person 
was held to be entitled to bail if the target fixed by this Court was 
not met and the target fixed by section 16(a) of the National 
Accountability Ordinance, 1999 was not the determining factor in 
that case. 
 
Civil Petition No. 632 of 2018 
7
9. 
In the case of Muhammad Nadeem Anwar and another v. 
National Accountability Bureau and others (PLD 2008 SC 645) the 
petitioners facing a trial before an Accountability Court had spent 
about two years and eight months in jail and an earlier direction 
issued by this Court for conclusion of the trial as early as possible, 
preferably within a period of ninety days, had not been complied 
with. In that peculiar backdrop this Court had admitted the 
petitioners to bail with the following observations: 
   
“6. 
This Court vide order dated 22-9-2006 had directed 
learned trial Court to proceed with the trial expeditiously and 
conclude the proceedings as early as possible, preferably within a 
period of ninety days. But according to the learned counsel for 
the petitioners only 9 witnesses out of 58 have been examined. In 
this view of the matter, we without touching the merits of the case 
are of the view that the allegations levelled against petitioners 
would only be determined at the conclusion of trial, which is not 
yet concluded. The N.A.B. Ordinance was promulgated in order to 
provide effective measures of detection, investigation, prosecution 
and speedy disposal of cases involving corruption, corrupt 
practices, 
misuse 
and 
abuse 
of 
power 
of 
authority, 
misappropriation of property, taking of kickbacks, commissions 
and for matters connected and ancillary or incidental thereto. The 
object of N.A.B. Ordinance as is evident in its preamble is to 
provide expeditious trial of the scheduled offences within the 
shortest possible time. 
 
--------------------- 
 
8. 
The object of criminal law is to ensure availability of the 
accused to face trial and not to punish him for offence allegedly 
pending final determination by a competent Court of law. It is well 
settled principle of law that grant of bail cannot be withheld as 
punishment on accusation of non-bailable offence against an 
accused. An accused is entitled to expeditious and inexpensive 
access to justice, which includes a right to fair and speedy trial in 
a transparent manner without any unreasonable delay. This 
intention has been reassured in section 16 of the N.A.B. 
Ordinance laying down criteria for day to day trial and its 
conclusion within 30 days. But in the instant case such object 
does not appear likely to be achieved anywhere in the near future 
and would not constitute a bar for grant of bail to the petitioners. 
The truth or otherwise of charges levelled against petitioners 
would only be determined at the conclusion of trial after taking 
into consideration the evidence adduced by both the parties. It 
was held by this Court in the case of Aga  Jehanzeb v. N.A.B. & 
others (2005 SCMR 1666) that if trial of case is not concluded 
within 30 days from date of submission of challan, accused would 
automatically become entitled to grant of bail.  
 
9. 
In view of above discussion, we are of the view that 
petitioners are entitled to the grant of bail pending conclusion of 
trial. Accordingly, both the petitions are converted into appeals 
and are allowed.”  
 
Civil Petition No. 632 of 2018 
8
It appears that while deciding the said case this Court was not 
properly assisted as far as the background of the case of Aga 
Jehanzeb v. N.A.B. and others (2005 SCMR 1666) was concerned. It 
was not pointed out to the Court that in the case of Agha 
Jehanzeb, in view of the unconscionable delay and incarceration of 
the petitioner in that case for about two years, the direction 
regarding automatic entitlement to bail was issued with reference 
to the direction of this Court regarding conclusion of the trial 
within a specified period of time and not with reference to the 
period of conclusion of trial mentioned in section 16(a) of the 
National Accountability Ordinance, 1999. Even in this case of 
Muhammad Nadeem Anwar and another the petitioners had been 
admitted to bail on account of an inordinate delay in their trial in 
the backdrop of a failure of the trial court to comply with this 
Court’s direction in respect of conclusion of the trial within a 
specified period. In this case only the spirit of section 16(a) of the 
National 
Accountability 
Ordinance, 
1999 
qua 
expeditious 
conclusion of a trial was mentioned but that provision was not 
made the basis of admission of the petitioners to bail. 
 
10. 
The next case relied upon by the learned counsel for the 
petitioner was that of Anwarul Haq Qureshi v. National 
Accountability Bureau and another (2008 SCMR 1135) wherein the 
petitioner was admitted to bail by this Court because he was not a 
public servant, he had remained behind the bars for about a year 
and a quarter, no progress had been made in his trial and on 
account of a violation of the provisions of section 24(d) of the 
National Accountability Ordinance, 1999 his arrest was illegal. In 
that background this Court had observed as follows: 
   
“On perusal of above provision of law, it is clear that a person 
cannot be detained for the purpose of investigation/inquiry for a 
period exceeding ninety days and for every remand, reasons have 
to be recorded. Petitioner is in judicial lock up since his arrest i.e. 
20-11-2006, whereas, as pointed out by learned Addl. Prosecutor 
General NAB reference was filed on 4-6-2007 but no progress 
whatsoever has taken place towards the conclusion of trial. This 
Court in the case of Asif Sharif v. Chairman, NAB 2004 SCMR 
1805 granted bail to accused against whom the reference was 
filed after about two years from date of his arrest. It was also held 
Civil Petition No. 632 of 2018 
9
in the case Aga Jehanzeb v. NAB and others 2005 SCMR 1666 
that if trial of case is not concluded within 30 days from date of 
submission of challan, accused would automatically become 
entitled to grant of bail. This Court has also held in the case of 
Abdul Qadir v. Federation of Pakistan through Secretary Ministry 
of Interior, Government of Pakistan and others 2002 SCMR 1478 
that conveyance of the grounds and substance on the basis of 
which the accused is arrested, is the first essential ingredient of 
section 24(d) of the Ordinance which is mandatory in nature and 
has to be complied with in letter and spirit as the same is based 
on constitutionally guaranteed right providing safeguards as to 
arrest and detention of a person embodied in Article 10 of the 
Constitution of 
Pakistan, 
1973. 
Non-compliance of 
such 
provisions of the Constitution and the Ordinance would render 
the arrest and detention illegal.”  
 
  
It appears that in that case also the peculiar background of the 
case of Aga Jehanzeb was not pointed out to this Court and bail 
was granted to the petitioner primarily on the basis of long delay 
and illegality of his arrest rather than on the basis of the 
provisions of section 16(a) of the National Accountability 
Ordinance, 1999. 
 
11. 
The last of the precedent cases relied upon by the learned 
counsel for the petitioner was that of Asfandyar Khan Kakar v. 
Accountability Court, Quetta and another (unreported order passed 
by this Court on 06.09.2017 in Civil Petition No. 2920 of 2017). In 
the order passed by this Court in that case the merits of the 
petitioner’s case were discussed in the earlier part of the order and 
the case was found to be a fit case for admission of the petitioner 
to bail on the merits. It was then observed in that order as under: 
 
“8. 
We are shocked to see that investigation commenced years 
back and at the conclusion Reference was filed in the trial court 
but NAB has failed to produce its witnesses and conclude the trial 
albeit the mandatory provision i.e. Section 16 of the NAB 
Ordinance stipulates the outer limit for conclusion of the trial as 
thirty days but we have yet to lay hands on a single case 
throughout Pakistan right from the date of inception of the NAB 
that in any such case trial was completed within the statutory 
period. This lethargic and indifferent rather negligent attitude on 
its behalf is highly deplorable and is deprecated. 
 
--------------------- 
 
10. 
In view of the facts and circumstances discussed above 
when the case of the petitioner is one of further probe and 
because co-accused whose case was on worst pedestals have 
been granted bail how the petitioner can be detained and that too 
for indefinite period because till date only one witness has been 
Civil Petition No. 632 of 2018 
10
produced by the NAB and there is a long list/calendar of 
witnesses in the case. Accordingly, this petition is converted into 
appeal and the same is allowed. The petitioner is granted bail 
subject to furnishing his bail bond in the sum of Rs. 50,00,000/- 
(Rupees Five Million only) with two sureties in the like amount to 
the satisfaction of the trial court concerned.” 
 
In the said case bail was allowed to the petitioner by this Court 
essentially on the merits of his case and the shocking delay in 
conclusion of his trial and the “mandatory” nature of the 
provisions of section 16 of the National Accountability Ordinance, 
1999 had been referred to as additional factors for the relief of bail. 
It was not elaborated by this Court in the said order as to why the 
provisions of section 16 of the National Accountability Ordinance, 
1999 were being referred to as “mandatory”. 
 
12. 
It is quite clear from the examination of the precedent cases 
relied upon and referred to by the learned counsel for the 
petitioner that “automatic” entitlement to bail upon expiry of thirty 
days after submission of the Challan in the trial court was ordered 
by this Court in the case of Aga Jehanzeb (supra) only in the 
context of failure to comply with an earlier direction of this Court 
regarding conclusion of the trial within the period specified by this 
Court and without reference to section 16(a) of the National 
Accountability Ordinance, 1999 but in some of the later cases the 
matter of automatic entitlement to bail upon expiry of thirty days 
after submission of the Challan was lifted out of context and 
erroneously attributed to the case of Aga Jehanzeb. We may, 
therefore, observe with deep reverence that the said later cases do 
not qualify as good precedents on the issue before us.  
 
13. 
Adverting now to the precedent cases referred to by the 
learned Additional Prosecutor-General Accountability appearing for 
the respondents we note that in the case of Faisal Hussain Butt v. 
The State and another (2009 SCMR 133) the petitioner had 
remained in jail for over one year in connection with a Reference 
filed by the National Accountability Bureau but on account of his 
trial likely to commence within the next few days his petition for 
Civil Petition No. 632 of 2018 
11
bail was dismissed by a High Court and the order passed by the 
High Court in that regard was upheld by this Court with the 
following observations:  
 
“3. 
We have heard the arguments of learned counsel for the 
parties and perused the available record. As mentioned above, the 
allegation against the petitioner is that he along with his co-
accused misappropriated huge amount (Rs. 298.000 million) from 
Allied Bank Limited where he was serving as Incharge C.D. 
Department. The main ground for bail is delay in trial. Admittedly 
his co-accused (Tasneem Akhtar, Faisal Hussain Butt, Saghir 
Iqbal Goraya and Tahir Awais) with similar allegation are in 
judicial lock-up and facing trial. Learned Senior Prosecutor-
General, NAB/respondent No.2 submits that petitioner and afore-
mentioned co-accused opened accounts of various persons and 
prepared forged record and obtained about rupees twelve crores 
through on line process from different Branches of the country 
without depositing any amount. Further submits that case is 
fixed on 17-11-2008 for trial. In these circumstances, we do not 
find it a fit case for grant of bail to the petitioner. The impugned 
judgment is just and proper. Learned counsel for the petitioner 
has not been able to point out any illegality or infirmity in the 
impugned judgment so as to warrant interference by this Court. 
As such this petition has no force which is accordingly dismissed 
and leave refused. However, learned trial Court is directed to 
decide the case within five months under intimation to the 
Deputy Registrar of this Court at Lahore Branch Registry. It is 
made clear that if case is not decided within aforesaid period, the 
petitioner may file fresh writ petition for bail before learned High 
Court.”  
 
In the said case bail was refused to the petitioner despite the 
provisions of section 16(a) of the National Accountability 
Ordinance, 1999 and the period fixed therein for conducting and 
concluding a trial. 
 
14. 
The next case referred to by the learned Additional 
Prosecutor-General Accountability was the case of Nisar Ahmed v. 
The State and others (PLD 2016 SC 11). The said case was not a 
case under the National Accountability Ordinance, 1999 but was a 
case of murder and murderous assault, etc. wherein the accused 
person had remained behind the bars for a period of about two 
years and eight months and repeated directions issued by the High 
Court regarding expeditious disposition of the trial could not be 
complied with by the trial court. This Court declined bail to the 
accused person by observing as under:   
 
Civil Petition No. 632 of 2018 
12
“Neither non-compliance of the directions issued to the trial Court 
to conclude the trial expeditiously or within some specified time 
can be considered as valid ground for grant of bail to an accused, 
being alien to the provisions of section 497, Cr.P.C., nor filing of 
direct complaint will have any bearing as regards earlier bail 
refusing orders, which have attained finality, unless some fresh 
ground could be shown by the petitioner for consideration of his 
request for bail afresh, which is lacking in the present case.” 
 
The said case followed a principle already laid down by this Court 
in some earlier cases that non-compliance of a direction issued by 
a High Court, or even by this Court, regarding conclusion of a trial 
within a specified period of time does not ipso facto or 
“automatically” entitle an accused person to be admitted to bail in 
a criminal case. 
 
15. 
The next case in the line was the case of Khalid Humayun v. 
The NAB through D.G. Quetta and others (PLD 2017 SC 194) 
wherein the accused person seeking bail had remained in custody 
for a period of about nine months and still no Reference had been 
filed against him by the National Accountability Bureau before an 
Accountability Court. The allegations levelled in that case 
pertained to embezzlement of Rs. 658,550,424/- which amount 
was recovered in cash from physical possession of an accused 
person. This Court refused bail to the accused person with the 
following observations: 
 
“5. 
This petition is in essence a bail application therefore it 
will not be appropriate to undertake a detailed examination of the 
facts, particularly when the reference under the NAB Ordinance 
has still not been filed. However, there is sufficient prima facie 
material on the record to suggest that the petitioner had exercised 
his authority to enrich himself and a number of persons have also 
implicated him as the principal beneficiary of the defalcated 
amounts, but we do not want to make any further observation in 
this regard as it may prejudice the case of either party.” 
 
In view of the prima facie strength of the prosecution’s case against 
the said accused person the length of his custody or the delay in 
filing a Reference against him were not found by this Court to be 
worth any consideration. 
 
Civil Petition No. 632 of 2018 
13
16. 
The last precedent case relied upon by the learned Additional 
Prosecutor-General Accountability was the case of Chairman NAB, 
Islamabad v. Bakhat Zameen and another (unreported judgment of 
this Court passed on 26.08.2016 in Civil Petition No. 1542 of 
2016). In that case an accused person facing a trial under the 
National Accountability Ordinance, 1999 was admitted to bail by a 
High Court on the grounds that he had already spent about 13 
months in jail, during that period the prosecution had produced 14 
witnesses out of 31 witnesses to be produced by it, only 6 
adjournments had been obtained by the accused person during the 
trial and, thus, he was entitled to be admitted to bail on the 
ground of statutory delay. This Court had cancelled that accused 
person’s bail and it was observed by this Court as under: 
 
“4. 
Before reverting to the facts of the case as regards delay or 
otherwise in the proceedings of the trial before the Accountability 
Court and the merits of the findings of the learned Division Bench 
recorded in the impugned order, we would like to make it clear 
that the provisions of section 497, Cr.P.C. are not as such 
applicable for the purpose of grant of bail to an accused facing 
charge/trial under the Ordinance of 1999. However, in 
appropriate cases, the question of delay in the conclusion of trial, 
depending upon the facts and circumstances of each case on its 
own merit, has been considered by the superior Courts on the 
yardstick of hardship vis-à-vis scheme of Articles 4 and 15 of the 
Constitution. Thus, ipso facto, application of principles for grant 
of bail embedded in section 497, Cr.P.C., including the provision 
of statutory delay, is devoid of any legal force. 
 
5. 
Reverting to the facts of the present case, we have noticed 
that the observations of the learned Division Bench that 
respondent No. 1 has been attributed only six adjournments 
during the ten months period of trial before the Accountability 
Court, is result of patent misreading of record, ---------------------. 
It will not be out of context to mention here that even otherwise 
the 
practice 
of 
making 
mathematical 
calculations, 
for 
ascertaining the actual period of delay attributable to the 
prosecution or the accused for the purpose of computing the 
period of statutory delay has not been approved by this Court, as 
even delay on few dates of hearing at the instance of an accused 
can be fatal for this purpose, irrespective of the actual time 
wasted on that account. More particularly in the cases where 
accused is being tried under the Ordinance of 1999, which is a 
special law and specifically bars grant of bail to an accused 
person by virtue of sections 3 and 9(b), which respectively read as 
under:- 
 
--------------------- 
 
6. 
The above discussion clearly goes to show that grant of 
bail to respondent No. 1 through impugned order of the learned 
Division Bench of the Peshawar High Court, Peshawar is result of 
misreading of record of the proceedings before the NAB Court as 
Civil Petition No. 632 of 2018 
14
well as erroneous understanding of relevant provisions of law in 
this regard. Thus, mere fact that in case an accused has 
remained in custody for a period of 13 months will not be 
sufficient to hold that it is a case of hardship within the 
parameters as defined by this Court in this regard in its various 
earlier pronouncements. For further guidance in this regard, 
reference can be made to the cases of Khan Asfandyar Wali v. 
Federation of Pakistan (PLD 2001 SC 607) and Himesh Khan v. 
The National Accountability Bureau, Lahore (2015 SCMR 1092).” 
 
The said case had gone a long way in clinching the issue that mere 
delay in conclusion of a trial or longevity of the period of 
incarceration of an accused person could not by itself entitle an 
accused person to bail in a case under the National Accountability 
Ordinance, 1999. 
 
17. 
Our own research shows that apart from the above 
mentioned precedent cases cited before us by the learned counsel 
for the parties there are some other reported cases decided by this 
Court which also throw some light on the issue under discussion. 
In the case of Anwar Saifullah Khan v. The State and 3 others 
(2001 SCMR 1040) bail was allowed to the accused person because 
prima facie he had a good case on merits, he had already been 
admitted to bail in many other References filed against him by the 
National Accountability Bureau, he had already spent about a year 
and a quarter in jail and conclusion of his trial was not in sight.  
 
18. 
In the case of Muhammad Saeed Mehdi v. The State and 2 
others (2002 SCMR 282) the accused person was admitted to bail 
because prima facie he had a good case on the merits, he had 
spent about a year and a half behind the bars and his trial had not 
even commenced as yet.  
 
19. 
The accused person in the case of Ch. Zulfiqar Ali v. The 
State (PLD 2002 SC 546) was admitted to bail by this Court 
because section 16(a) of the National Accountability Ordinance, 
1999 envisaged conclusion of a trial within a period of thirty days 
whereas the trial of that case had not concluded in nine months 
and the accused person had remained in custody for the last about 
twenty-seven months. The delay in conclusion of the trial having 
Civil Petition No. 632 of 2018 
15
been found by this Court to be inordinate the accused person was 
found to be entitled to bail.  
 
20. 
In the case of Muhammad Jahangir Badar v. The State and 
others (PLD 2003 SC 525) this Court had referred to and pressed 
into service an “exceptional principle” quite relevant to the issue at 
hand and, therefore, it is important to reproduce some parts of the 
order passed in that case: 
 
“6. 
It is an admitted fact that after arrest of the petitioner on 
21st August, 2001 Reference was submitted on 3rd November, 
2001 and thereafter the case was taken up for hearing for more 
than 40 occasions but only two witnesses have been examined. 
Summary of the Court proceedings is reproduced below:- 
 
--------------------- 
 
7. 
There is no cavil with the proposition that the State 
machinery has a right to arrest the culprits and put them to trial 
for the purpose of establishing guilt against them but it has not 
been bestowed with an authority to play with liberty and life of an 
accused under detention because no one can be allowed to 
remain in custody for an indefinite period without trial as it is a 
fundamental right of an accused that his case should be 
concluded as early as could be possible particularly in those 
cases where law has prescribed a period for the completion of the 
trial. As in the instant case under section 16(a) of the Ordinance 
the Court is bound to dispose of the case within 30 days. It may 
be noted that inordinate delay in the prosecution case if not 
explained, can be considered a ground for bailing out an accused 
person depending on the nature and circumstances on account of 
which delay has been caused as has been held in the case of 
Riasat Ali v. Ghulam Muhammad and State (PLD 1968 SC 353). 
Relevant para. therefrom is reproduced hereinbelow:-- 
 
“Inordinate delay in the prosecution of a case, if 
not explained by the prosecution amounting to an 
abuse of the process of law, can be considered as a 
ground for bailing out an accused person even in a 
murder case depending on the nature of the delay 
and the circumstances that have caused it. The 
prosecution is expected to proceed with its case 
with all dispatch eliminating every avoidable delay 
in order to bring it to a close and thus to determine 
the fate of an accused person which hangs in the 
balance as long as the proceedings do not 
terminate one way or the other. The prosecution 
can be permitted to enlist the will of the Court on 
its side directly or indirectly prolonging the worries 
and harassment of and accused person which are 
inevitably caused by his protracted detention 
without trial. Leisurely steps taken in filing the 
challan, tardy and halting production of evidence 
or seeking of unnecessary adjournments, except 
those necessitated by force of circumstances must 
be 
strongly 
deprecated. 
But 
delay 
in 
the 
prosecution of a case or the procrastination of the 
Civil Petition No. 632 of 2018 
16
proceedings in a trial furnishing as a ground for 
bail have to be weighed and judged in each case on 
its own merits.” 
 
The above view consistently is being followed by this Court. 
Reference if need be, can be made to judgments reported (i) Nazir 
Hussain v. Ziaul Haq and others (1983 SCMR 72), (ii) Ashiq 
Hussain and 3 others v. The State (1989 SCMR 1580), (iii) Anwar 
Saifullah Khan v. The State and 3 others (2001 SCMR 1040), (iv) 
Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546). Relevant para. 
from the last mentioned judgment is reproduced hereinbelow:-- 
 
 
“9. 
Under section 16(a) of the Ordinance, all 
persons accused of a scheduled offence are 
exclusively triable by the Courts established under 
the Ordinance and the cases have to be heard from 
day to day and disposed of within 30 days but in 
the instant case trial has not been concluded in 9 
months whereas the petitioner is in custody for the 
last about 27 months. Although delay in disposal 
of the case was attributed by both the parties to 
each other but the order sheet of the trial Court 
shows that both the parties have been taking 
adjournments, therefore, both the parties were 
responsible for delay in disposal of the case. 
Notwithstanding the merits of the case, the 
inordinate delay in disposal of the trial is a good 
ground recognized by the Court in various 
judgments holding the same to be abuse of process 
of the Court and treating it as sufficient ground for 
grant of bail.” 
 
In the above-noted case bail was granted to Zulfiqar Ali petitioner 
because he remained in custody for 27 months and the delay in 
the conclusion of trial was attributed to both the parties. Against 
the above prevailing consistent view only one exceptional 
principle can be pressed into service namely that if the trial of the 
case has commenced then instead of releasing the accused on 
bail direction should be made for expeditious disposal of the case 
by adopting certain modalities to ensure that the accused is not 
detained further for an indefinite period. Reference in this behalf 
is made to the case of (i) Allah Ditta and others v. The State (1990 
SCMR 307) and (ii) Iftikhar Ahmad v. The State (1990 SCMR 607). 
Under such circumstances we are of the opinion that in the 
instant case as well such a device is required to be adopted, 
because prima facie involvement of the petitioner in the case 
cannot be overruled at this stage without commenting on merits 
of the case in depth so the prosecution may also get a final 
opportunity to conclude the case within the time which will be 
fixed by this Court and at the same time to ensure that the 
accused is not kept in custody for an indefinite period because 
the trial of the case has already commenced and statements of 
two witnesses have been recorded, and a good number of 
documents have also come on record so far. Therefore following 
the observations of this Court in the case of Ashok v. The State 
(1997 SCMR 436) the trial Court is directed to complete the trial 
within 30 days by holding proceedings of the case on day to day 
basis and if even then the trial is not concluded then the accused 
shall be liable to be released on bail by the trial Curt subject to 
surety which has already been specified in the short order.” 
 
Civil Petition No. 632 of 2018 
17
The “exceptional principle” pressed into service by this Court in 
that case was that “if the trial of the case has commenced then 
instead of releasing the accused on bail direction should be made 
for expeditious disposal of the case by adopting certain modalities 
to ensure that the accused is not detained further for an indefinite 
period” and the same “device” was adopted “because prima facie 
involvement of the petitioner in the case cannot be overruled at 
this stage without commenting on merits of the case in depth so 
the prosecution may also get a final opportunity to conclude the 
case within the time which will be fixed by this Court and at the 
same time to ensure that the accused is not kept in custody for an 
indefinite period because the trial of the case has already 
commenced and statements of two witnesses have been recorded, 
and a good number of documents have also come on record so far.” 
 
21. 
The accused person in the case of Arif Sharif v. Chairman, 
NAB (2004 SCMR 1805) was under arrest for over two years and 
initially no Reference had been filed against him for a long time 
and when a Reference was actually filed no progress whatsoever 
had been made towards conclusion of the trial and, thus, in those 
peculiar circumstances he was admitted to bail by this Court. 
 
22. 
The accused person in the case of Himesh Khan v. The 
National Accountability Bureau (NAB), Lahore and others (2015 
SCMR 1092) had spent about six years in jail, his trial was 
nowhere close to its conclusion and the accused person was not 
primarily responsible for such delay. After taking notice of the 
provisions of section 16(a) of the National Accountability 
Ordinance, 1999 this Court had found the delay in conclusion of 
the trial to be “inordinate” and “shocking” and had, thus, admitted 
the accused person to bail. It was observed by this Court that “An 
accused person cannot be left at the mercy of the prosecution to 
rot in jail for an indefinite period. The inordinate delay in the 
conclusion of trial of detained prisoners cannot be lightly ignored 
provided it was not caused due to any act or omission of accused.” 
It was added that “despite of exclusion clause beneficial provision 
Civil Petition No. 632 of 2018 
18
of section 497, Cr.P.C. can be pressed into service in some genuine 
and rare cases to provide relief of grant of bail to a highly deserving 
accused, incarcerated in prison for a longer duration.” This Court 
had gone on to observe that “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.” 
 
23. 
The survey of the precedent cases detailed above and a 
careful reading of the judgments rendered or orders passed in 
those cases leads us to conclude as follows: 
 
(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 non-
observance 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 
Civil Petition No. 632 of 2018 
19
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 
Civil Petition No. 632 of 2018 
20
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 non-
Civil Petition No. 632 of 2018 
21
compliance of such a direction by the trial court for whatever 
reason may not entitle the accused person to claim bail as of 
right. 
 
24. 
We now proceed to decide the present petition in the light of 
the principles and practices deduced from the precedent cases 
detailed above. As already observed in the opening part of this 
judgment, the learned counsel for the petitioner has not seriously 
pressed this petition on the merits of the petitioner’s case and the 
High Court had felt satisfied that reasonable grounds did exist for 
believing in the petitioner’s involvement in the alleged offence. The 
stands taken by the petitioner before this Court regarding the 
properties in issue are ostensibly mutually contradictory. The 
medical ground for bail urged through the present petition appears 
to be a fresh ground on which the petitioner may approach the 
High Court in the first instance. The case against the petitioner is 
quite distinguishable from the case against his co-accused who 
had been admitted to bail by the High Court inasmuch as the 
petitioner is the principal accused in this case whereas the said co-
accused are alleged to be Benamidars only. As regards the delay in 
the petitioner’s trial the order-sheet of the trial court has neither 
been appended with this petition nor the same has been produced 
before us to show as to why delay has occurred in conclusion of 
the petitioner’s trial and who is responsible for the delay. 
According 
to 
the 
learned 
Additional 
Prosecutor-General 
Accountability appearing for the respondents statements of quite a 
few prosecution witnesses have already been recorded by the trial 
court by now, many of the prosecution witnesses cited in the 
Calendar of Witnesses shall be given up by the prosecution and the 
remaining evidence of the prosecution shall be produced before the 
trial court within the next few months. The High Court has already 
issued a direction to the trial court to conclude the petitioner’s trial 
within the shortest possible time. For all these reasons no occasion 
has been found by us for interference in the matter at such a 
stage. This petition is, therefore, dismissed. 
 
Civil Petition No. 632 of 2018 
22
25. 
 Before parting with this judgment we would like to 
observe that the original intent behind introduction of section 
9(b) of the National Accountability Ordinance, 1999 ousting 
jurisdiction of the courts regarding grant of bail in a case under 
the said Ordinance already stands neutralized by opening of the 
door for bail through exercise of constitutional jurisdiction of a 
High Court and resultantly the entire burden in that regard is 
being shouldered by the High Courts which is a huge and an 
unnecessary drain on their precious time. Apart from that the 
High Courts and this Court have always felt difficulty in 
adjusting the requirements of “without lawful authority” and “of 
no legal effect” relevant to a writ of certiorari (Article 199(1)(a)(ii) 
of the Constitution) with the requirements of bail provided in 
section 497, Cr.P.C. In the changed scenario the legislature 
may, 
if 
so 
advised, 
consider 
amending 
the 
National 
Accountability Ordinance, 1999 appropriately so as to enable 
an accused person to apply for his bail before the relevant 
Accountability 
Court 
in 
the 
first 
instance. 
It 
is 
also 
recommended that the unrealistic timeframe for conclusion of a 
trial specified in section 16(a) of the National Accountability 
Ordinance, 1999 may also be reconsidered and revisited by the 
legislature.  
 
 
Chief Justice 
 
 
Judge  
 
Judge 
 
 
Judge  
 
Judge 
Islamabad 
01.10.2018 
Approved for reporting.  
 
Arif 
 
 
 
 
 
