 
IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
 
 
 
PRESENT: 
MR. JUSTICE ANWAR ZAHEER JAMALI  
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE UMAR ATA BANDIAL  
 
 
 
 
Civil Petition No.1340/2014 
(On appeal from the judgment dated 
26.06.2015 passed by the Lahore High 
Court in W.P.No.13040 of 2012) 
 
Himesh Khan 
…Petitioner  
VERSUS  
 
The National Accountability Bureau (NAB), Lahore & others  
..Respondents  
 
For the petitioner: 
 
Mr. Azam Nazeer Tarar, ASC 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For respondent No.1-3:  
Mr. Mehmood Raza, Addl. P.G. NAB 
 
Respondent No.6: 
 
Mr. Anwar Mansoor Khan, Sr. ASC 
 
Date of hearing:  
 
14.4.2015 
 
 
 
 
  
JUDGMENT  
 
  
  
 
 
Dost Muhammad Khan, J.—  Himesh Khan, the 
petitioner herein, along with several co-accused, is facing criminal 
charges in NAB Reference No.62 of 2008 before the Accountability 
Court.  
2. 
  
When the petitioner was the chairman of Bank of Punjab 
during the year 2004, the proprietor of Haris Steel Industries obtained 
loan facility of Rs.250 millions from the bank. This credit facility was 
enhanced subsequently by the committee comprising co-accused 
Haroon Aziz (G.M), Hameed –ur- Rehman (G.M) and Shoaib Qureshi 
 
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(G.M). Co-accused, Sheikh Muhammad Afzal, proprietor of Haris Steel 
Industries managed to open 23 fake accounts in collaboration and 
collusion with the co-accused, who were by then bank officials to 
defraud the bank.  
3. 
  
When the financial scam was detected, the NAB intervened 
by initiating inquiry followed by investigation, as a result whereof the 
above Reference was filed. The said Reference is pending before the 
Accountability Court-V, at Lahore, where co-accused of the petitioner 
have been granted bail, while he is in custody since 16.07.2009. The 
petitioner unsuccessfully sought post arrest bail from the learned 
Division Bench of the High Court and the last in the series is the one 
under challenge in this petition dated 26.06.2014 again declining the 
relief of grant of bail to him.  
4. 
  
Keeping in view the above facts and circumstances, the 
petitioner is behind the bars for the last about five years. The calendar 
of witnesses would show that in all about 150 witnesses are to be 
examined. Initially 72 witnesses were examined when by then co-
accused Sheikh Muhammad Afzal was at large on bail due to plea 
bargain with the NAB however, when the said accused tracked back 
and did not fulfill his obligation under the plea bargain, he was re-
arrested therefore, all the witnesses examined were to be re-called for 
cross-examination and a second round of trial in this manner 
commenced. We asked the learned Additional Prosecutor General, NAB 
and Mr. Anwar Mansoor Khan, learned Sr. ASC, representing the Bank 
of Punjab that, whether the trial is likely to be concluded in the next 
couple of months, they replied in the negative with the plea that the 
petitioner and his co-accused have prolonged the trial, getting 
 
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unnecessary adjournments and if they indulge in the same and similar 
practice then it is difficult to conclude the trial in the said period.  
5. 
  
Mr. Anwar Mansoor Khan, learned Sr. ASC for the Bank of 
Punjab has filed CMA NO.1421/2015 to show that about 60 
adjournments were sought by and allowed to the petitioner and his co-
accused and cross-examination of one of the witnesses for the 
prosecution was dragged on beyond reasonable time and whatever 
delay in the conclusion of the trial has occurred that is due to the 
contribution of the petitioner and his co-accused.  
6. 
  
We have gone through the order-sheets of Accountability 
Court-V, Lahore, however, in majority of the order-sheets the 
petitioner is shown present along with his counsel and except on few 
occasions, adjournments have been sought by his co-accused for one 
reason or the other and at some occasions due to absence of presiding 
officer or due to non-production of the accused from jail further 
progress in the case could not take place therefore, in our view, the 
delay in the conclusion of the trial could not be legitimately attributed 
to the petitioner but mainly due to the prosecution and the co-
accused, for which the petitioner cannot be blamed.  
7. 
  
Mr. 
Anwar 
Mansoor 
Khan, 
learned 
Sr. 
ASC 
then 
vehemently argued that the petitioner’s case falls under special law, 
which does not recognize the grant of bail and because the provision of 
section 497 Cr.P.C is not applicable therefore, the petitioner cannot be 
granted bail on the basis of statutory delay by pressing into service the 
proviso attached to section 497 Cr.P.C.  
 
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8. 
  
True that the statutory law on the subject under the 
National Accountability Ordinance, 1999 does not recognize the grant 
of bail to accused persons facing charges under the said law, however, 
in the case of Khan Asfandyar Wali v. Federation of Pakistan thr. 
Cabinet Division (PLD 2001 SC 607) the Supreme Court has devised a 
strategy 
for 
granting 
bail to 
such 
accused 
persons 
through 
constitutional jurisdiction of the High Court, provided their cases are 
arguable for the purpose of grant of bail.  
9. 
  
The court cannot lightly ignore shocking delay in the 
conclusion of the trial of an accused person, provided he or they is/are 
not exclusively responsible for the same.  
10. 
  
In 
the 
instant 
case, 
as 
explained 
above, 
several 
adjournments were allowed but due to the request of the co-accused 
or for some other reasons, not attributable to the petitioner and only 
few adjournments of negligible numbers were sought by the petitioner 
and that too for the reason that his counsel was busy in the superior 
court in some other cases.  
11. 
  
The contention of the learned Sr. ASC for the Bank of 
Punjab that the petitioner even after such a long delay in the 
conclusion of the trial cannot be let free on bail because application of 
section 497 Cr.P.C with its 3rd proviso relating to grant of bail on 
ground of statutory delay is inapplicable and not attracted at all to his 
case, in our view, is not of paramount consideration.  
12. 
  
Pakistan is a welfare State where liberty of individual has 
been guaranteed by the Constitution beside the fact that speedy trial is 
inalienable right of every accused person, therefore, even if the 
 
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provision of section 497 Cr.P.C in ordinary course is not applicable, the 
broader principle of the same can be pressed into service in hardship 
cases to provide relief to a deserving accused person incarcerated in 
jail for a shockingly long period. This principle may be vigorously 
pressed into service in cases of this nature if the objects and purposes 
of mandatory provision of section 16 of the National Accountability 
Ordinance, 1999 is kept in view, which is reproduced below:- 
“S.16 Trial of offences 
[(a) 
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]” 
13. 
  
An accused person cannot be left at the mercy of the 
prosecution to rotten 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.  In the case of The State v. Syed Qaim Ali Shah (1992 SCMR 
2192) the accused was facing charges under the Suppression of 
Terrorist Activities (Special Courts) Act (XV of 1975) where under 
section 7 thereof grant of bail even in bailable offences was taken out 
of the discretion of the Court, however, it was held that despite of 
exclusion clause beneficial provision 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. 
14. 
  
The grant of bail on account of inordinate delay in 
prosecution was discussed and guiding principle was laid down by this 
 
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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 punishment 
on the ground that the offences, the accused is charged for, are not 
bailable or grant of bail therein was falling within the prohibition.  
15. 
  
Keeping in view the above principles of law and justice and 
the factual aspects of the case we are of the considered view that it is 
a fit case where bail is to be granted, more so, when co-accused 
including the real beneficiaries are enjoying the same concession, 
much earlier and only the petitioner has been kept behind the bars. 
The anxiety of the prosecution that the petitioner was brought from 
USA after hectic efforts and there is likelihood that he may abscond 
again if he is granted bail, can be addressed in an effective manner 
directing him to deposit his passport and all his travel documents with 
the Accountability Court till the conclusion of the trial. Accordingly, this 
petition is converted into appeal and allowed.  
 
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These are the detailed reasons for our short order of even date, 
which is reproduced herein below:- 
“After hearing the arguments of the learned ASCs for the 
petitioner and the bank as well as the learned Additional 
Prosecutor General, NAB, this petition is converted into 
appeal and allowed in the terms that petitioner Himesh 
Khan is admitted to bail on furnishing his surety in the 
sum of Rs.10,000,000/- (ten millions) and P.R. bonds in 
the like amount to the satisfaction of the Trial Court, in 
addition to deposit of his passport and other travelling 
documents, etc., if any, in his possession. Till further 
orders his name shall also be placed/retained on Exit 
Control List (ECL). Reasons to follow separately.”  
 
Judge  
 
 
Judge  
 
 
Judge  
 
Islamabad, the   
14th April, 2015 
Nisar/-‘ 
 
  
 
Approved For Reporting 
