P L D 2012 Balochistan 104
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
Haji GHOUSUDDI N---Appellant
Versus
THE STATE through NAB Authorities, Quetta ---Respondent
Criminal Eshtesab Appeal No.7 of 2010, decided on 27th October, 2011.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 33 -E---West Pakistan Land Revenue A ct (XVII of 1967), S.80 ---Recovery of fine --
Arrears of land revenue ---Scope ---Imprisonment in default of payment of fine ---Authorities
initiated proceedings against accused for recovery of fine ---Accused raised the plea that he
had undergone imprisonment i n default of payment of fine, therefore, fine could not be
recovered by invoking provisions of S.80 of West Pakistan Land Revenue Act, 1967 ---
Validity ---Undergoing imprisonment, awarded in default of payment of fine did not operate
as a discharge or satisf action of the order for payment of fine ---In spite of undergoing
imprisonment in default of payment of fine, liability of accused was still there and it could be
enforced for the special reason to be recorded in writing ---Provisions of S.80 of West
Pakista n Land Revenue Act, 1967, authorized any statutory body to recover any amount as
arrears of land revenue subject to' the condition that dues should be determined, affixed and
ascertained ---Amount of fine had been determined by Supreme Court in appeal to be
recovered from accused as arrears of land revenue, therefore, accused could not take
advantage of his alleged imprisonment in jail in lieu of payment of fine ---Accused failed to
point out any illegality or irregularity, which .could force the High Court. to interfere in the
order for recovery of fine as arrears of land revenue ---Appeal was dismissed.
The State v. Muhammad Kaleem Bhatti 2010 MLD 676 ref
Ahmed Ali Siddiqui v. Sargodha Central Cooperative Banking Limited 1989 SCMR 824 fol
(b) National Accountability Ordinance (XVIII of 1999) ---
----S.11---Penal Code (XLV of 1860), S. 53 (Tenthly) ---Fine---Scope ---With reference to
ordinary crimes, offences or illegal acts, the term "fine is generally used to mean sum of
money to be paid to government treasury, ordered by competent court to an offender as a
punishment for an offence ---In special cases of corruption, misappropriation and
embezzlement .9f public money, it was imposed just to recover the embezzled amount/public
money and to compensate loss es caused by an offender to the State exchequer.
(c) National Accountability Ordinance (XVIII of 1999) ---
----S. 32 ---Appeal ---Scope ---Appellate proceedings are continuation of original proceedings,
because the proceedings under National Accountabilit y Ordinance, 1999, do not come to an
end with passing of conviction order ---If any of the rival parties files an appeal, the
proceedings are kept alive, as it is the continuation of original proceedings ---Legal pursuit of
a remedy through filing an appeal before first and second appellate authorities are steps in a
series of proceedings all concerned by an intrinsic unity, are to be regarded as one legal
proceeding ---Appeal is continuation of original proceedings before higher forum for testing
soundness of decision of lower court ---Remedy of revision is discretionary and revisional
court has to proceed under certain limitations ---Although there is no definition of appeal in
the National Accountability Ordinance, 1999, yet any application by' a party to an A ppellate
Court, asking it to set aside or revise the decision of subordinate court, is an appeal within the
ordinary acceptance of the terms.
(d) National Accountability Ordinance (XVIII of 1999) ---
----S. 33 -E---Penal Code (XLV of 1860), S. 70 ---Recov ery of fine ---Limitation ---In case of
appeal before Supreme Court, limitation for recovery of fine begins after passing of order by
Supreme Court, confirming conviction and sentence ---Recovery proceedings, initiated before
expiry of six years front the dat e of order of Supreme Court would be within limitation.
(e) Interpretation of statutes ---
----Special and general law ---Applicability ---In absence of express provision, an adjective
law cannot control the provisions of substantive law.
Kamran Murta za and Tahir Ali Baloch for Appellant
Amir Zaman Jogezai, Spl: Prosecutor NAB for the State.
Date of hearing: 13th October, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed against the order
dated 22nd March, 2010, passed by the Accountability Court -I, Balochistan, Quetta,
whereby the application, filed by the appellant for releasing of the properties, was
dismissed"and the application, filed by the respondent, for recovery of fine of~
Rs.1,50,00,000 (rupees one Crore and fif ty lacs only) under section 33 -E of the National
Accountability Bureau - Ordinance, 1999 (the "Ordinance"), by auctioning the properties,
was allowed.
2. The relevant facts, in small compass for disposal of the instant appeal, appear to be that
the appel lant was convicted and sentenced by the Accountability Court -I, Balochistan,
Quetta, in Reference No.2 of 2002, by means of judgment dated 31st December, 2002 on
the following terms: --
"As far as accused Ghousuddin is concerned, the prosecution establish ed offences against
him ,under section 9(a) (iv) (vi) of the Ordinance, therefore, he is convicted and sentenced
undersection 10(a) of the Ordinance to suffer three years RI and fine of Rs. 2, 90, 03,180
(two Crores ninety -lacs three thousand one hundred a nd eighty only). The fine amount be
recovered by auctioning of his properties known as Gul Plaza at Jinnah Road, Quetta,
property situated at Chashma Achozai Quetta and Sirki Kalan Quetta. In case of non-recovery
of amount of fine he shall further undergo for one year's R.I. "
3. The convict/appellant challenged the aforesaid conviction before this Court by filing
Criminal Ehtesab Appeal No.01 of 2003, which was dismissed vide judgment dated 22nd
July, 2003, with certain modification in the quantum of sen tence, in the following
manner:
"In view of what has been discussed above, we would maintain the conviction of the appellant
under section 9 read with 10, of the NAB Ordinance 1999, but keeping in view the value of
properties illegally acquired by the ap pellant the amount of fine is reduced from Rs. 2, 90,
03,180 to rupees one Crore fifty lacs (Rs. 1, 50, 00, 000) which is to be recovered by
auctioning of his properties as directed by trial Court, in case of non recovery ,of amount of
fine, the appellant shall further undergo eight months' R.I. The appellant shall also be entitled
to benefit of section 382 -B, Cr. P. C. already granted by the trial Court."
4. Thereafter, the appellant filed a criminal petition for leave to appeal (Cr.P.L.A. No.341
of 2003 ) before Hon'ble Supreme Court of Pakistan, which was also dismissed being not
pressed vide order dated 18th June 2009.
5. At this juncture, the convict/appellant moved an application before the
AccountabilityCourt -I, Balochistan, Quetta for release of h is attached properties, while, at
the same time, an application under section 33 -E of the Ordinance was also filed by the
respondent, seeking permission to auction the attached properties for realization of the
amount of fine. The trial Court, after hearin g the parties, allowed the application filed by
the respondent and dismissed the application of the appellant by means of common order
dated 22nd March 2010, which is the subject matter of the instant appeal.
6. Messrs Kamran Murtaza and Tahir Ali Baloch , Advocates, representing the appellant,
contended that the trial Court directed that in case of non -recovery of the amount of fine,
the convict/appellant shall further undergo for one year's R.I. Similarly, this Court was
pleased to reduce the sentence be sides directing that in case of non -recovery of the
amount of fine, the appellant shall further undergo eight months' R.I. only. Since the
options, which were available to the appellant, were either to make the payment of the
fine amount or to suffer the imprisonment in default thereof and, accordingly, the appellant
opted for second option, so on completing the main sentence, he further served the sentence
for non -payment of the fine amount for a period of eight months, as such, the property cannot
be put to auction/forfeited as a set off against the amount of fine, because it would amount
double jeopardy, which is violation of Article 13 of the Constitution of Islamic Republic of
Pakistan, 1973 as well as section 403 of the Cr.P.C., but the trial Court fai led to appreciate
the aforesaid aspects of the case, which has caused serious prejudice to the appellant and has
resulted in grave miscarriage of justice. Learned counsel further urged that the appellant had
already suffered eight months rigorous imprisonm ent in default of payment of the fine, as
such, his property was no longer liable to the payment of the fine. They contended with
vehemence that under section 70 of the P.P.C., the fine imposed upon the appellant should
have been recovered only within six years from the date of pronouncement of the sentence
passed by the trial Court and the application under section 33 -E of the Ordinance filed in the
year 2009, after the period of six years, was hopelessly barred by time. They also contended
that under sect ion 386 of the Cr.P.C., if the offender has undergone the whole sentence in
default of fine, no Court can issue warrant for levy of fine. They made reliance to a judgment
dated 2nd March 2010 of this Court in case "The State v. Muhammad Kaleem Bhatti 2010
MLD 676".
7. On the contrary, Mr. Amir Zaman Jogezai, Special Prosecutor (NAB), contended that as
per prevailing law pronounced by Hon'ble Supreme Court of Pakistan -reported in a case of
"Ahmed Ali Siddiqui v. Sargodha Central Cooperative Banking Limited " reported in 1989
SCMR 824, as far as the amount of fine imposed upon the convict is concerned, that has to be
recovered even if he has served out the sentence as well as the one which has been awarded
to him in lieu of payment of fine.
8. We have heard learned counsel for the parties at length and. considered their contentions in
the light of relevant provisions of law.
9. The only question, which requires to be answered, is as to whether the amount of fine is
recoverable, if the convict has already u ndergone the sentence of imprisonment in lieu
thereof? In this regard, we are of the opinion that undergoing imprisonment, awarded in
default of payment of fine, does not operate as a discharge or satisfaction of the order for
payment of fine, in spite of undergoing the imprisonment in .default of payment of fine, the
liability of the offender is still there and that it could be enforced for the special reasons to be
recorded in writing. In the instant case, there are variety of special reasons i.e. firstly ; the
appellant had sufficient means to pay the fine amount as evident from the detail of properties
mentioned in the judgment of conviction dated 31st December; 2002, secondly; the appellant,
his dependants and Benamidars have acquired a number of propert ies, which were
disproportionate to his known source of income through corruption and, thirdly; during the
course of trial, he moved an application for plea bargaining, as such, the trial Court has
rightly permitted the National Accountability Bureau autho rities for auctioning the reference'
properties, so as to. realize the fine amount. To our view, the trial Court, being the original
Court, is the best forum to interpret its own judgment. By holding this view, we are fortified
from a case of "Ahmed Ali Si ddiqui v. Sargodha Central Cooperative Banking Limited"
reported in 1989 SCMR 824, wherein it has been held as under:
"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 levied, notwithstanding that the offender
has served the full term of imprisonment ordered for default of payment of fine. 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 taken
as a discharge of liability but only as a reasonable punishment for non -payment of fine. "
Admittedly, with reference to ordinary crimes, offences or illegal acts, the term "fine" is
generally used to mean the sum of money ordered to be paid to the government treasury,
ordered by a competent Court to an offender as a punishment for an offence , but to our view,
in the special cases' of corruption, misappropriation and embezzlement of public money, it is
imposed just to recover the embezzled amount/public money and to compensate the losses
caused by an offender to the State exchequer.
10. Reve rting to the next contentions of learned counsel for the appellant that under section
70 of the P.P.C., which also applies to fines under the special law, the period of limitation for
recovery of fine is six years from the date of the sentence and that if the offender has
undergone the whole sentence in default of fine, no Court can issue warrant for levy of fine as
provided under section 386 of the Cr.P.C. At this juncture, it would be relevant to reproduce
herein below Section 70 of the P.P.C. as well as section 386 of the Cr.P.C. for facility of
reference, which speaks as under: --
"70. Fine leviable within six years, or during imprisonment: Death not to discharge property
from liability. ---The fine, or any part thereof which remains unpaid, may be levie d at any -
time within six years after the passing of the sentence, and if under the sentence, the offender
be liable to imprisonment for a longer period than six years, then at any time previous to the
expiration of that period: and the death of the offen der does not discharge from the liability
any property which would, after his death, be legally liable for this debts. "
"386. Warrant for levy of fine. ---(1) Wherever an offender has been sentenced to pay a fine,
the Court passing the sentence may take action for the recovery of the' fine in either or both
of the following ways, that is to say, it may:
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property
belonging to the offender; -
(b) issue a warrant to the [District Officer (Revenue)] authorizing him to realize the amount
by execution according to civil process against the movable or immovable property, or both,
of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine the offender shall
be imprisoned, and if such offender has undergone the whole of such imprisonment in
default, no Court shall issue such warrant.
(2) The Provincial Government may make rules regulating the manner in which warrants
under subsection (I), clause (a) are to be executed, and for the summary determination of any
claim made by any person other than the offender in respect of any property attached in
execution of such warrant.
(3) Where the Court issues a warrant to the [District Officer (Rev enue)] under subsection (1)
clause (b), such warrant shall be deemed to be a decree, and the District Officer (Revenue) to
be the decree -holder, within the meaning of the Code of Civil Procedure, 1908, and the
nearest Civil Court by which any decree for a like amount could be executed shall, for the
purposes of the said Code, be deemed to be the Court which passed the decree, and all the
provisions of that Code as to execution of decrees shall apply accordingly:
Provided that no such warrant shall be exec uted by the arrest or detention in prison of the
offender
A bare reading of above provisions of law leaves no room for doubt that the fine, or any
part thereof, which remains unpaid, may be levied within six years from the date of the
sentence. However, the questionarises about the staring point of limitation, The record
reveals that the criminal petition for leave to appeal i.e. Criminal Petition No.341 of 2003,
filed by the appellant, was dismissed by Hon'ble 'Supreme Court on 18th June 2009,
while appl ication under section 33 -E of the Ordinance was moved after dismissal of the
said appeal, as such, by no stretch of imagination, the said application could be termed as
barred by limitation. To our humble view, -the appellate proceedings are continuation o f
the original proceedings, because the proceedings under the Ordinance do not come to an
end with the passing of a conviction order. If any of the rival parties files an appeal, the
proceedings are kept alive, as it is the continuation of the original pro ceedings. The legal
pursuit of a remedy through filing an appeal before the first and the second appellate
authorities are really but steps in a series of proceedings all connected by an intrinsic
unity, are to be regarded as one legal C proceeding. Admitt edly, the appeal is the
continuation of the original proceedings before the higher forum for testing the soundness
of the decision of the lower Court. On the other hand, the remedy of revision is
discretionary and the revisional Court has to proceed under certain limitations. In both the
cases, the judgment of the lower Court is under assault. Although there is no definition of
appeal in the Ordinance, but no doubt that any application by a party to an appellate
Court, asking it to set aside or revise the d ecision of the subordinate Court, is an appeal
within the ordinary acceptance of the terms.
11. As stated above, since the appeal is in continuation. of trial and the conviction only
attained finality after the final decision of the case by Hon'ble apex Court, therefore, the
possibility of reversal of conviction order into acquittal is always attached with the
appeal, as such, in case of appeal before the Supreme Court, limitation for recovery of
fine would begin after passing of order by Hon'ble Supreme Court, I confirming
conviction and sentence. Consequently, recovery proceedings, initiated before expiry of
six years from the date of order of Supreme Court, would be within limitation.
12. So far the proviso to subsection (1) of section 386 of the Cr.P .C. is concerned,
Hon'ble Supreme Court, in the case referred to above, has held that section 386 of the
Cr.P.C. relates to procedure of recovery of fine and it is a general rule relating to
construction of statute that in the absence of express provision an adjective law cannot
control the provisions of substantive law, therefore, the substantive law contained in
section 70 of the P.P.C. is not to be affected.
13. Besides, the above legal and factual position, it would suffice to add here that under
Section 33 -E of the Ordinance, any fine or other sum due under the Ordinance or as
determined to be due by a Court shall be recoverable as arrears of land revenue. In this
regard, it would be advantageous to reproduce herein below section 80 of the West
Pakist an Land Revenue Act, 1967, which speaks as under:
"80. Processes for recovery of arrears. Subject to the other provisions of this Act, an arrear of
land revenue may be recovered by any one or more of the following processes, namely:
(a) by service of a notice of demand on the defaulter under section 81;
(b) by arrest and detention of his person under•section 82;
(c) by distress and sale of his movable property and uncut or ungathered crops under section
83;
(d) by transfer, under section 84, of th e holding in respect of which the arrear is due;
(e) by attachment, under section 85, of the holding in respect of which the arrear is due;
(f ) by annulment, under section 86, of the assessment of that holding;
(g) by sale of that holding under sect ion 88;
(h) by proceedings against other immovable property of the defaulter under section 90."
From plain reading of the above provision of law, it is crystal clear that this provision of
law, which authorizes any statutory body to recover any amount as arrears of the land -
revenue, can be invoked, subject to the condition that the dues should be determined,
affixed and ascertained and, obviously, in the case in hand, the amount of fine has been
determined by this Court, in appeal, i.e. Rs.1,50,00,000 ( rupees one crore fifty lacs only)
to be recovered from the appellant as land revenue, therefore , in view of the aforesaid
provision of law and the dictum laid down by Hon'ble Supreme Court in. the above noted
reference case -law, the appellant cannot take advantage of his alleged imprisonment in
jail in lieu of the payment of fine.
The upshot of the above discussion is that learned counsel for the appellant has failed to
point out any illegality or irregularity, which would force us to interfere in the or der
impugned herein, thus, the appeal, being devoid of any merit, is dismissed.
M.H./145/Q Appeal dismisseThis 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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