Allah Dina and another V. The State,

2015 M L D 460

[Balochistan]

Before Ghulam Mustafa Mengal and Muhammad Kamran Mulakhail, JJ

ALLAH DINA and another---Petitioners

Versus

The STATE and another---Respondents

Constitution Petition No.141 of 2012, decided on 24th July, 2014.

National Accountability Or dinance (XVIII of 1999)--- ----S. 33-E---Criminal Procedure Code (V of 1898), S.386---Penal Code (XLV of 1860), S.70--- Constitution of Pakistan, Art.199--- Constitutional petition---Recovery of amount of fine etc. as arrears of land revenue---Scope ---Application by National Acc ountability Bureau under S.33-E National Accountability Ordinance, 1999, read with S.386, Cr.P.C. and S.70, P.P.C., for recovery of fine, against th e petitioner/accused as arrears of land revenue was accepted by Accountability Court---Validity---Bureau was lega lly authorized to recover the fine from the petitioner; and in case of his failure, same could be recovered as arrears of land revenue---Where the quantum of sentence also entailed the levy of fine; and accused who had been convicted for any term of imprisonment followed by payment of fine, though served out the imprisonment in default of payment of fine, sti ll he could not be absolved from payment of fine; because the imprisonment undergone in default, was to be treated as reasonable punishment for non-payment of fine---Impugned order passed by the Accountability Court, was un-exceptional; and would not call for any interfer ence by High Court.

Haji Ghousuddin v. The State PLD 2012 Bal. 104 and Ahmed Ali Siddiqui v. Sargodha Central Cooperative Banking Ltd. 1989 SCMR 824 ref.

Manzar Siddique for Petitioner. Ameer Zaman Jogizai, Senior Prosecutor NAB for the State. Date of hearing: 16th July, 2014. ORDER

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This petition is directed against the order dated 17-12-2011 passed by th e learned Accountability Court-II, Quetta Balochistan, whereby the application under section 33-E of the National Accountability Ordinance, 1999 ("NAO") read with section 386 of the Code of Criminal Procedure Code, 1898 ("Cr.P.C") and Section 70 of the Pakistan Pena l Code, 1860 ("PPC") for rec overy of fine against the petitioner was accepted.

2. Precisely, the facts of the case are that the reference No.3 of 2004 was filed by the National Accountability Bureau ("NAB") author ities against the peti tioners, whereby the petitioners were convicted and sentenced to suffer various terms of imprisonment. The petitioners assailed th e judgment before this court in Ehtisab Appeals No s. 19, 20, 21, 22, 23, 24, 25 and 2005, which were dismissed through separate judgments. The perusal of record reveals that the petitioners did not assail the judgment of this court before the Hon'ble Supreme Court and were released from jail on completion of th eir term of imprisonmen ts. The NAB authorities moved an application for recovery of fine and the order passed th ereon, has been assailed in this petition.

3. Mr. Manzar Siddique, learned counsel for the petitioner co ntended that the proposition involved in this case is sub judice before the H on'ble apex Court; however, he could not cite any reference or precedent in this behalf rather sought time to do the needful. 4. Mr. Ameer Zaman Jogizai, learned Senior Prosecutor NAB, opposed the appeal and supported the impugned order. He referred to the judgment of this court passed in Haji Ghousuddin v. The State (PLD 2012 Balochistan 104) and contended that in view of law laid down by the Hon'ble Supreme Court of Pakistan and thereafter the judg ment rendered by this court, no cavil is left to hold that the NAB is legally authorized to re cover the fine from the petitioner and in case of his failu re same can be recovered as the arrears of land revenue. He pointed out that in Haji Ghousuddi n's case (supra) the judgment passed by this court was upheld by the Hon'ble apex Court because the Civi l Petition No.298 of 2013 was dismissed as withdrawn vide order dated 26-6- 2013, therefore, the law laid dow n by this court still holds the field. He finally urged for dismissal of the petition.

5. We have heard the learned counsel for the petitioner and the learned Senior Prosecutor NAB and considered their contentions in the light of relevant provision of law. The controversy involved in th is case relates to an identical proposit ion which came up for hearing before the Hon'ble Supreme Cour t in Ahmed Ali Siddiqui v. Sargodha Central Cooperative Banking Ltd., reported in (1989 SC MR 824), wherein it was held that:--

"It is settled that where an offender having the means of paying a fine chooses to undergo imprisonment rather, than pay the fine, it is a sufficient special reason which will enable the Court, in its discretion, to order that the fine may be levie d, notwithstanding that the offender has served the full term of imprisonment ordered for default of payment of fi ne. It was observed in Siddappa v. State of Mysore AIR 1957 Mysore 52 that it is wrong to think that serving the full term of imprisonment fixed for default in payment of fine should not be ta ken as a discharge of liability but only as a reasonable pun ishment for non-payment of fine. " The referred pronouncement of the Hon'ble apex Court was also relied by this court in Haji Ghousuddin's case supra. The bare perusal of section 386, Cr.P.C. and section 70, P.P.C. clearly manifests that the amount imposed in lieu of fine can be recove red as arrear of land revenue, while the provision of section 33-EE NAO is analogous to referred provisions of Cr.P.C. and P.P.C. The law of recovery of fine not only in NAB cases but in any other law for the time being enforced, where the quantum of se ntence also entails the levy of fine and the accused, who has been convicted for any term of imprisonment followed by payment of fine, though served out the imprisonment in default of pa yment of fine, all he/she cannot be absolved from payment of fine because the imprisonment undergone in default be absolved from payment of the because the imprisonment undergone in defa ult is to be treated as a reasonable punishment for non-payment of fine, therefore, the impugned order passed by the Accountability Court-I, Quetta is unexceptional and does not ca ll for any interference by this Court.

Therefore, the petition being devoid of merit is dismissed accordingly. HBT/13/Bal Petition dismissed.