2010 M L D 676
[Quetta]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
THE STATE through Deputy Prosecutor General ---Appellant
Versus
MUHAMMAD KALEEM BHATTI ---Respondent
Criminal Ehtesab Appeal No.7 of 2009, decided on 2nd March, 2010.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 10, 11, 12, 32 & 33 -E---Release of properties subject matter of main reference ---
Appreciation of evidence ---Appeal to High Court ---Trial Cour t while passing order of
conviction and sentence against respondent/accused had mentioned that assets/properties of
accused were forfeited as set off against the amount of fine, however, in case of non -
recovery/non -payment of the amount/fine, accused would undergo for further terms of two
years ---Accused in his application filed before the Trial Court had requested that since he
had already completed his conviction period and also served additional sentence in default
of payment of fine, his properties whic h were subject matter of the main reference be
released ---Trial Court accepted application of accused and directed Executive District
Officer to release the properties of accused as mentioned in the judgment and in the order --
-Feeling aggrieved from said o rder of the Trial Court, NAB Authorities had filed instant
appeal ---Since the properties of accused were forfeited as set off against the amount of
fine, intention of the Trial Court was that properties/assets, subject -matter of reference
were forfeited only to recover the amount of fine ---It was held in the judgment that in case
of non -recovery of amount of fine, the convict/accused would further undergo for two
years ---Accused having also served a sentence for non -payment of fine, legally speaking
the j udgment of the Trial Court had fully been acted upon and accused could not be
punished twice, because the period he served against the payment of fine could not be
returned to him ---Law did not provide double punishment to accused ---Accused had since
compl eted his entire sentence, including the additional sentence of two years in lieu of
amount of fine ---Propertie s of accused, in circumstances were no more subject -matter of
the judgment and the Trial Court had rightly released the same ---Further the Trial C ourt
being the original court, was the best forum to interpret its own judgment ---Appeal against
judgment and order of the Trial Court, was dismissed, in circumstances. ?
?
Raja Aamir Abbas, Deputy Prosecutor General and Amir Zaman Jogezai, Special Prosecu tor
NAB for Appellants.
Respondent in person.
Date of hearing: 24th November, 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---The above titled appeals have been presented
against order, dated 21 -4-2009, passed by Accountability Court -II, Balochistan, Quetta, in
Application No.3 of 2009.
2. Briefly stated facts of the case are that, the private respondent has filed an application
before trial Court with a request that, since he has already completed his conviction period
and also served additional se ntence in default of payment of fine, therefore, his properties,
which were subject matter of the main reference, be released.
Ground on the basis of which the application was filed, was that, at the time of passing of
judgment, the trial Court has menti oned, "accordingly, accused Muhammad Kaleem Bhatti is
convicted under section 10 read with sections 11 and 12 of National Accountability
Ordinance to five years' R.I. and fine of Rs.1,50,000,00, the assets/ properties of accused are
forfeited as set off ag ainst the amount of fine, however, in case of non -recovery/non -payment
of the amount/fine, accused shall undergo for further terms of two years' R.I.".
The trial Court has accepted the application vide order, dated 21 -4-2009 and directed the
Executive Di strict Officer, Revenue, authorities, as well as the Cantonment Executive
Officer, Quetta Cantt. to release the properties of respondent/application as mentioned in the
judgment and in the order.
Feeling aggrieved from the order, dated 21 -4-2009 passed b y Accountability Court -II,
Balochistan, Quetta, the NAB `authorities have filed instant 'appeal.
3. Learned counsel for appellant has submitted that the order impugned is contrary to law and
facts. According to him, the private respondent/applicant has n o concern with the properties
in question, as he has denied its ownership during trial of main reference. He has further
submitted that the trial Court had forfeited the properties and the apex Court has finalized the
matter, therefore, the order amounts t o reopening to the controversy. In the end, he has
submitted that the trial Court, vide order, dated 24 -3-2008, has ordered for auction of the
properties in favour of appellant, but through impugned order, it has recalled its own order,
which is beyond its jurisdiction.
4. Private respondent, appearing in person, has vehemently contested the appeal and
submitted that, actually, before his conviction, his entire properties were subject Chatter of
the reference. The trial Court, while convicting him, has imposed a fine of Rs.1,50,00,000
and his assets/properties were forfeited as set off against amount of fine. According to him,
the main judgment reflects that in case of non? -recovery/non -payment of fine, he shall
further undergo for two (2) years' R.I. Th e private respondent has submitted that since he had
preferred to serve further sentence instead of payment of fine, therefore, the properties, subject
matter of the reference, are required to be released. He further submitted that the trial Court
has righ tly accepted his application and has released the properties in view of stated facts.
5. We have heard learned counsel of the parties and have perused the record. It is a fact that
in view of the judgment, dated 17 -7-2002, the private respondent was conv icted and his
properties were confiscated to recover fine of Rs. 1,50,00,000. In the said judgment, it has
further been held that, in case of non -payment of amount of fine, he shall further undergo for
two (2) years' R.I. Said judgment was assailed up to H onorable Supreme Court of Pakistan,
but same was upheld with certain modification and reduction in the quantum of sentence vide
order, dated 8 -5-2006 passed in Criminal Petition No.482 of 2003. It is important to mention
here that in the said order of Hono rable Supreme Court of Pakistan, the following sentence
was missing: --
"The assets/properties of the accused are forfeited as set off against the amount of
fine".
The private respondent, feeling aggrieved, has preferred a Review Petition No.39 of 2006,
before Honourable Supreme Court of Pakistan, who has accepted the review petition' vide
order, dated 20 -5-2008, resultantly, the above mentioned sentenced was added to its original
order.
It is important to mention here that before review order, dated 2 0-9-2008 passed by
Honorable Supreme Court of Pakistan, the appellant has preferred an application under
section 33 -E of the NAB Ordinance, with a request to allow the authority to auction the
property subject -matter of the reference/judgment so as to reco ver the amount of fine. The
trial Court, vide order, dated 24 -3-2008, accepted said application and had directed the
authorities to auction the properties in question. It is noteworthy that when the trial Court
passed the order of auction, till then, revie w petition was not decided. It is a matter of record
that inspite of getting clear directions from trial Court the NAB authorities did not succeed in
auctioning the properties, in the mean time, Honourable Supreme Court of Pakistan has
reviewed its order a nd the private respondent has completed his extra sentence instead of
payment of amount of fine.
As regards objection of appellant that, the order impugned of trial Court amounts to
reopening of the order of apex Court is concerned, we are not in agreement with him,
because the Honorable Supreme Court of Pakistan has simply upheld the main judgment of
trial Court, therefore, no question of reopening of said judgment arises. What the trial Court
has done is that, it has released the properties, which were subject -matter of the main
reference, because these were forfeited conditionally and were retained by the NAB
authorities for the recovery of amount of fine. The trial Court in its main judgment has
clearly stated that in case of non -recovery of the amount of fine, the respondent shall further
undergo for two 2 years' R.I.., meaning thereby that, the pr operties in question were simply
retained for recovery of amount of fine. This fact further gets corroboration form the earlier
order, dated 24 -3-2008 passed by trial Court, whereby, the NAB authorities was allowed to
auction the properties in question for the purpose of recovery of amount of fine. It is strange
to mention here that, what was the reason that the NAB authorities have filed an application
for permission to auction the properties. Had the trial Court forfeited the properties in default
of amou nt of fine, then, there was no necessity to request the Court to get permission for its
auction, therefore, the appellant was also convinced that forfeiture was subject to amount of
fine. Since the properties were forfeited as set off against the amount of fine, therefore,
intention of trial Court was quite clear that the properties/assets, subject matter of reference
were forfeited only to recovery the amount of fine, therefore, it was held in judgment that, in
case of non -recovery of amount of fine, the c onvict shall further undergo for two 2 years.
Now, situation has arisen that the respondent has also served a sentence for non -payment of
fine, therefore, legally speaking, the judgment of trial Court, dated 17 -7-2002 has fully been
acted upon and the convict cannot be punished twice, because the peri od he served against
payment of fine can not be returned to him. The law does not provide double, punishment to
the convict. He has since completed his entire sentence, including the additional sentence of
two years in lieu of amount of fine, therefore, th e properties are no more subject -matter of
the judgment an the trial Court has rightly released the same in view of above analogy.
Furthermore, the trial Court being the original Court, is the best forum to interpret its own
judgment. Since the apex Court has simply upheld the judgment of trial Court, wherein, the
properties were forfeited conditionally, therefore, it is the trial Court to clarify and explain
its own judgment and this act, in no way, amounts to reopening of controversy.
Next ground raised in appeal by the appellant is that the order impugned of the trial Court
amounts to reversal of its earlier order, dated 24 -3-2008, passed on the application of
appellant for permission of auctioning of properties in question.
As has been mentioned abov e that at the time of passing said order, the honourable
Supreme Court of Pakistan has not passed its order on review, therefore, earlier order of
the Honorable Supreme Court of Pakistan did not mention the term, "set off against fine".
In view of this fac t, the Accountability Court had allowed the appellant for request of
auction. After allowing review petition by Honourable Supreme Court of Pakistan and by
inserting the term "set off against fine", the situation has been changed, therefore, the trial
Cour t has rightly passed the impugned order. The objection of appellant that the trial Court
has reviewed/ reversed its earlier order has no force, because on both counts, the situation
was different. Furthermore, the earlier order was on the request of appell ant to auction the
properties, which request was allowed, but the appellant has failed to avail the same. The
impugned order is altogether on different facts and grounds, therefore, both the orders have
no relevancy at all, as such, in no way, the order im pugned amounts to reversal/review of
the earlier order.
Without prejudice to above, even otherwise, the bar contained on review in criminal cases,
is on judgment as has been mentioned in section 369, Cr.P.C., but there is no provision of
law that debar t he Court to review or alter its order. Since the appeal is against an order,
therefore, the objection raised by appellant has no substance at all.
6. In view of what has been stated hereinabove, we are not inclined to accept the appeal, as
such, the same is dismissed.
H.B.T./20/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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