2013 P Cr. L J 1089
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
ALI AHM ED BALOCH and others ---Appellants/Petitioners
Versus
The STATE through NAB Authorities and others ---Respondents
Criminal Ehtesab Appeals Nos.3, 4 and C.P. No.236 of 2008, decided on 11th April, 2013.
(a) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 32 & 33 -E---Penal Code (XLV of 1860), S.70 ---Fine, recovery of ---Imprisonment in lieu
of fine ---Effect ---Undergoing imprisonment, awarded in default of payment of fine, does not
operate as discharge or satisfaction of order of payment of fine---In spite of undergoing
imprisonment in default of payment of fine, liability of offender is still there and that could be
enforced for special reasons to be recorded in writing ---In special cases of corruption,
misappropriation and embezzlement of public money, fine is imposed just to recover embezzled
amount/public money and to compensate loses caused by offender to State exchequer.
Ahmed Ali Siddiqui v. Sargodha Central Cooperative Bank Limited 1989 SCMR 824 rel.
(b) National Accountability Ordinance (XVIII of 1999) ---
----S. 33 -E---Recovery of fine ---Limitation ---Application under S. 33 -E of National
Accountability Ordinance, 1999, moved by NAB after dismissal of appeal was not barred by
limitation.
(c) Criminal Procedure Code (V of 189 8)---
----Ss. 404 & 439 ---"Appeal" and "revision" ---Distinction ---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 procee d under certain limitations.
(d) National Accountability Ordinance (XVIII of 1999) ---
----S. 33 -E---West Pakistan Land Revenue Act (XVII of 1967), S. 80 ---Fine, recovery of ---
Procedure ---Provision of S.80 of West Pakistan Land Revenue Act, 1967, which authorizes any
statutory body to recover any amount as arrears of land revenue, can be invoked subject to
condition that dues should be determined, affixed and ascertained.
(e) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(iv), 25 , 32 & 33 -E---Voluntary return and plea bargain ---Stages ---Trial Court,
jurisdiction of ---Accused was convicted and sentenced by Trial Court for holding assets
disproportionate to his known sources of income ---After conviction and sentence was maintained
by Supreme Court, authorities filed application before Trial Court for recovery of fine ---During
pendency of recovery proceedings, accused filed application for plea bargaining, which was
dismissed by Trial Court ---Validity ---Provisions of S.25 of National Accountability Ordinance,
1999, demonstrated two stages to accused for availing opportunity of plea -bargain i.e. prior to
authorization of investigation against him and, secondly during the course of trial or pendency of
appeal ---Chairman NAB, was only aut horized to discharge accused from all his liabilities in
respect of matter or transaction, provided that matter was not sub judice in any court of law ---
Trial Court could also entertain application under S.25 of National Accountability Ordinance,
1999, fo r plea bargain, when the matter was pending before it and after passing of final
judgment, it became functus officio and had no power to entertain such requests ---Besides
forfeited properties, NAB was also authorized to put to auction rema ining properties of accused
in order to recover amount of fine as arrears of land revenue ---Accused failed to point out any
illegality or irregularity to interfere in order of Trial Court ---Appeal was dismissed in
circumstances.
(f) Constitution of Paki stan---
----Art. 199 ---Constitutional jurisdiction of High Court ---Scope ---Petitioners have to approach
the court with clean hands.
Muhammad Riaz Ahmed for Appellants/Petitioners.
Muhammad Afzal Jami, Deputy Prosecutor -General (NAB) and Amir Zaman Jogezai,
Special Prosecutor (NAB) for Respondents.
Date of hearing: 3rd April, 2013.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Criminal (Ehtesab) Appeals Nos.3 and
4 of 2008 as well as Constitutional Petition No.236 of 2008 have been preferred by appellant Ali
Ahmed Baloch (the "appellant") and petitioners Maimoona Ali Ahmed and Noushaba Ali
Ahmed (the "petitioners"), respectively against the order dated 24th April, 2008 and 17th May,
2008, passed by the learned Accountability Court -I, Quetta, wher eby an application filed by the
appellant under section 25(b) of the National Accountability Ordinance, 1999 (the "Ordinance")
for plea -bargain and an application filed by the petitioners for joining them as party to the
proceedings of Application No.18 of 2007 filed by the National Accountability Bureau
(NAB) under section 33 -E of the Ordinance, were dismissed and the application submitted by the
NAB under section 33 -E the Ordinance was allowed.
2. Facts in brief are that the appellant, who was a civil servant and retired as Provincial
Secretary, was proceeded against in terms of sections 18(g) and 26(b) of the Ordinance, on the
allegation that during his service, he acquired/accumulated properties and assets disproportionate
to his legitimate sour ces of income. The learned trial Court vide judgment dated 7th August,
2001, convicted the appellant and sentenced him on the following terms: --
'61. Considering the level of corruption, he is convicted and sentenced under section
10(a) of NAB Ord inance 1999 for 7 years' RI.
62. The following immovable properties, which are the result of corruption, are
confiscated it in favour of the State:
(1) Plot measuring 5038 sq. ft. at Arbab Karam Khan Road, Quetta in the name of his son
Gul Muhammad.
(2) Plot No.258 -B in Chiltan Extension Housing Scheme Quetta measuring 420 sq. yds. in
the name of his son Gul Muhammad.
(3) A house built on Plot No.90 -AE/B4 in Satellite Town, Quetta measuring 2475 sq. ft. in
his name.
(4) The property situated at Khushkaba Karezat Sariab Tappa Kechi Baig Quetta measuring
7 rods and 23 poles, is in the name of his wife Mst. Memoona.
(5) Agricultural land measuring 400 acres 20 rods, situated in Moza Qamar Sub -Tehsil
Khudkoocha District Mastung in his name.
(6) A bungalow on Plot No.53 in Ziarat measuring 4200 sq.yads leased out in the name of his
son Waqar Ahmed.
(7) Residential House in Malik Dad Karim Ward Turbat on a Plot measuring 67147 sq ft as
per details available in Exh.P/29 -A-1 and map Exh.P/19 A-1 in his name.
(8) Residential House in Village Kaush -Kalat at Turbat built on a plot measuring 38650,
sq.ft. as per details available in Exh.P/29 -A-1 and map Exh.P/19 -A-2 in his name.
(9) Plots Nos. 4046 and 4047 Category 'A' in Singhar Housing Scheme Gwa dar allotted to
him and his son namely Gul Muhammad in the year 1998.
(10) Plot measuring 6825 sqft surrounded by boundary wall near old B&R Rest House
Gwadar allotted in the name of his son Gul Muhammad.
(11) Agricultural land measuring 35 acre and 40 acre situated at Kaush -Kalat and Shahi Tump
Turbat in the name of his wife Mst. Memoona. The details whereof are available at serial Nos.7
and 8 in Exh. P/29-A-1.
(12) Plot measuring 800 sq.yds situated at Tehsil Hub District Lasbella in his name.
(13) Plot No.S -20/1, 16th East Street Phase -I, Pakistan Defence Officers Housing Authority
(PDOHA) Karachi with a bungalow on it in the name of his wife Mst. Noushaba daughter
of Malik Gilani.
(14) 65/11 21st Street Phase -V, D.H.A. Karachi in the name of his son Gul Muhammad
measuring 490.50 sq.yds with a bungalow on it.
(15) Plot Z -2, Staff Lane 15th Street Phase -I, DHA Karachi with a bungalow on it in the name
of Mst. Noshaba wife of Ali Ahmed Baloch.
(16) Plot No.55 -I, 13th Lane Phase -VII i n DHA Karachi in the name of Gul Muhammad son
of Ali Ahmed Baloch.
(17) Plot No.55 -II, 13th Lane phase -VII in DHA Karachi in the name of Gul Muhammad son
of Ali Ahmed Baloch.
(18) Plot No.83/1 at 23rd Street Phase -VI in DHA, Karachi in the name of Mst. Noushaba
wife of Ali Ahmed Baloch.
(19) Plot No.87/1, 16th Street Phase -VI in DHA Karachi in the name of Mst. Noushaba wife
of Ali Ahmed Baloch.
(20) Plot No.M.66, Zulfiqar Street -I, Phase -VIII (Marina Club) DHA Karachi in the name of
his wile Mst. No ushaba."
3. The appellant challenged the aforesaid conviction before this Court by filing Criminal
Ehtesab Appeal No.63 of 2001, which was dismissed vide judgment dated 3rd April, 2003, with
certain modification in the quantum of sentence, in the followi ng manner: --
"Upshot of the above discussion is that imprisonment of 7 years' R.I awarded by the
learned trial Court is maintained. However amount of fine is reduced from 50 million to that of
30 million rupees and in default thereof the appellant is or dered to further undergo 16 months'
R.I. The immovable properties owned by Gul Muhammad mentioned at Serial Nos. 1, 2, 9,
10, 14, 16 and 17 in Para No. 62 of the judgment of the trial Court dated 7 -8-2011 are
excluded from forfeiture. The forfeitu re order with regard to the remaining immovable properties
mentioned in Para No.62 of the judgment will remain intact and is upheld. The appellant will
also be entitled to the benefit of section 382 B, Cr.P.C. already extended by the learned trial
Court."
4. Thereafter, the appellant filed a criminal petition for leave to appeal (Cr.P.L.A.No.168 of
2003) before the Hon'ble Supreme Court of Pakistan, which was also dismissed and leave to
appeal was refused vide order dated 14th November, 2005.
5. After d ismissal of petition for leave to appeal by the Hon'ble Supreme Court vide order
dated 14th November, 2005, the respondent i.e. the State through NAB, Balochistan Quetta,
submitted an application bearing No.18 of 2007 under section 33 -E of the Ordinance in the
month of August 2007, seeking permission for auction of the confiscated properties. After filing
of the said application, the appellant also filed an application under section 25(b) of the
Ordinance, whereas the petitioners, wives of the appellant, fi led an application for joining the
said proceedings, with the contention that the properties in question cannot be disposed of
without their consent, as they are recorded owners of some of the confiscated properties. The
learned trial Court, after hearing both the parties, allowed the application filed by the State under
section 33 -E of the Ordinance and dismissed the applications filed by the appellant and the
petitioners vide orders dated 24th May, 2008 and 17th April, 2008, respectively.
6. Mr. Muhamma d Riaz, learned counsel for the petitioners and the appellant made
following submissions: --
(i) that the learned trial Court directed that in case of non -recovery of the amount of fine, the
appellant shall further undergo for two years rigorous imprisonm ent (RI), which was reduced by
this Court to that of 16 months' RI. 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 appellan t 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 16 months, as
such, the properties 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 (the "Constitution") as well as section 403 of the Criminal
Procedure Code 1898 (Cr.P.C.), but the trial Court has failed to appreciate the aforesaid aspects
of the case;
(ii) that under section 70 of the Pakistan Penal Code, 1860 (P.P.C.), the fine imposed upon
the appellant should have been recovered only within a period of 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 2007, after the period of six years, was hopelessly barred
by time;
(iii) that under section 386 of the Cr.P.C., if the offender has undergo ne the whole sentence in
default of fine, no Court can issue warrant for levy of fine;
(iv) that the Chairman NAB was under legal obligation to entertain the application of the
appellant for plea -bargain, as the appellant was ready and prepared to make t he payment of the
immovable properties mentioned in para No.63 of the, judgment dated 7th August, 2001, and
(v) that the immovable properties mentioned in application dated 4th December, 2007 was
stood recorded in the names of the petitioners, as such, t he same could not be put in auction and
the petitioners were not aware about the proceedings before the learned trial Court, thus, the
learned trial Court, while passing the order dated 17th May, 2008, has not dealt with the matter
in accordance with law a nd the petitioners were condemned unheard.
7. On the contrary, Messrs Muhammad Afzal Jami, Deputy Prosecutor -General NAB and
Amir Zaman Jogezai, Special Prosecutor (NAB), contended that as per prevailing law
pronounced by Hon'ble Supreme Court of Pakista n in a case of "Ahmed Ali Siddiqui v. Sargodha
Central Cooperative Bank Limited", 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 winch ha s been awarded to him in lieu of payment of fine. They further submitted that
the request of the appellant for providing him an opportunity for plea -bargain under section 25(b)
of the Ordinance was rightly refused/turned down by the learned trial Court, as there was no
provision in the Ordinance for acceptance of plea -bargain after dismissal of his appeal right up to
the apex Court. They, while concluding their arguments, submitted that the petitioners were well
aware about the pendency of proceedings befor e the learned trial Court regarding the properties
in question being the wives of the appellant and the learned trial Court has rightly passed the
impugned order by giving valid reasons for its conclusion and the same does not warrant any
interference by this Court.
8. We have heard the learned counsel for the parties at length and considered their
contentions in the light of relevant provisions of law.
8(sic.) So far as the question, regarding undergoing the sentence of imprisonment in lieu of
default in payment of fine amount is concerned, 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 of 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 is variety of special reasons
i.e. firstly; the appellant had sufficient me ans to pay the fine amount as evident from the detail of
properties mentioned in the judgment of conviction passed by the learned the trial Court,
secondly; the appellant, his dependents and benamidars have acquired a number of properties,
which were dispr oportionate to his known source of income through corruption and, thirdly;
during the course of proceedings, he moved an application on behalf of the petitioners for plea -
bargain as well as showing his willingness to make the payment equivalent to the valu e of the
confiscated properties recorded in the names of the petitioners, as such, the trial Court has rightly
permitted the NAB for auctioning the reference properties, so as to realize the fine amount. To
our view, the trial Court, being the original Cou rt, is the best forum to interpret its own
judgment. By holding this view, we are fortified from the dictum laid down by the Hon'ble
Supreme Court in the case of "Ahmed Ali Siddiqui v. Sargodha Central Cooperative Bank
Limited", 1989 SCMR 824, wherein it h as 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."
Admittedly, with reference to ordinary crimes, offences or illegal acts, the term "fine" is
generally used to mean th e sum of money order to be paid to the government treasury, 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.
9. Reverting to the next contention of the learned counsel for the appellant that under
section 70 of the P.P.C., which also applies to the 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 und er 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 speak as under: --
"70. Fine leviable within six years, or duri ng imprisonment: Death not to discharge
property from liability. --- The fine, or any part thereof which remains unpaid, may be levied at
any time within six years after the passing of the sentence, and if under the sentence, the offender
be liable to impri sonment for a longer period than six years, then at any time previous to the
expiration of that period: and the death of the offender 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 (1), clause (a) are to be executed, and for the summary determination of any
claim made by any person other than the offender in res pect of any property attached in
execution of such warrant.
(3) Where the Court issues a warrant to the [District Officer (Revenue)] 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 a ll the provisions of that Code as
to execution of decrees shall apply accordingly;
Provided that no such warrant shall be executed by the arrest or detention in prison of the
offender."
A bare reading of above provisions of law leaves no room for doub t that the fine, or any part
thereof, which remains unpaid, may be levied within six years from the date of the sentence.
However, the question arises about the starting point of limitation. The record reveals that the
criminal petition for leave to appeal i.e. Criminal Petition No.163 of 2003, filed by the appellant,
was dismissed by Supreme Court on 14th November, 2005, while application under section 33 -E
of the Ordinance was moved by the NAB after dismissal of the said appeal in the month of
August 2007 , 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 of 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 proceedings. 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
proceeding. Admittedly, 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 as sault. 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 decision of the subordinate Court, is an appeal
within the ordinary acceptance of th e terms.
10. 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, confirming conviction and sentence.
Consequently, recovery proceedings, initi ated before expiry of six years from the date of order of
Supreme Court, would be within limitation.
11. 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 subs tantive law contained in section 70 of the P.P.C. is not to be affected.
12. 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 determi ned
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 Pakistan Land Revenue Act,
1967, which reads 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 anyone 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 the 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 section 88;
(h) by proceedings against other immovable propert y 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 t he 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.3,00,00,000 (Rupees thirty million only), to be recovered from the appell ant as land -
revenue, therefore, in view of the aforesaid provisions 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 payme nt of fine.
13. Similarly, the contention of the learned counsel for the appellant that NAB was under
legal obligation to accept the offer of the appellant for plea -bargain, has no legs to stand, as
proviso to subsection (a) and subsection (b) of section 25 the Ordinance furnish a complete
answer to the said contention, which reads as under: --
"25. Voluntary return and plea bargain: -
(a) Notwithstanding anything contained in section 15 or in any other law for the time being
in force, where a holder o f public office or any other person, prior to the authorization of
investigation against him, voluntarily comes forward and offers to return the assets or gains
acquired or made by him in the course, or as the consequence, of any offence under this
Ordinan ce, the Chairman NAB may accept such offer and after determination of the amount due
from such person and its deposit with the NAB discharge such person from all his liability in
respect of the matter or transaction in issue:
Provided that the matter is not sub judice in any court of law.
(b) Where at any time after the authorization of investigation, before or after the
commencement of the trial or during the pendency of an appeal, the accused offers to return to
the NAB the assets or gains acquired o r made by him in the course, or as a consequence, of any
offence under this Ordinance, the Chairman, NAB, may, in his discretion, after taking into
consideration the facts and circumstances of the case, accept the offer on such terms and
conditions as he m ay consider necessary, and if the accused agrees to return to the NAB the
amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the
approval of the Court, or as the case may be, the Appellate Court and for the release of the
accused."
14. Terminology of plea -bargain was introduced in criminal law by the Ordinance to provide
an opportunity to the accused persons voluntarily coming forward to return their assets or gains
acquired or made by them in the course or as a c onsequence of any offence under the Ordinance.
It is true that in view of the preamble of the Ordinance, "plea bargaining" envisaged under
section 25 of the Ordinance is to be encouraged, but it is equally true that it is not desirable
in cases opposed to the principles of public policy. We are also in agreement with Mr.
Muhammad Riaz, learned counsel for the appellant, that any type of alternate resolution, like the
"plea bargaining" is to be encouraged in the interest of revival of economy and recovery of
outstanding dues, however, the provisions of section 25 of the Ordinance clearly demonstrate
two stages to the accused for availing the opportunity of plea -bargain i.e. firstly; prior to
authorization of investigation against him and, secondly ; during the course of trial or pendency
of appeal. We are of the considered view that Chairman, NAB, is only authorized to discharge
the accused from all his liabilities in respect of the matter or transaction, provided that the matter
is not sub judice i n any Court of law. Similarly, the trial Court can also entertain an application
under section 25 of the Ordinance for plea -bargain, when the matter is pending before it and,
after passing of the final judgment, it becomes functus officio and has no power to entertain such
requests, particularly in matters, which have been decided up to the apex Court. We are afraid
that if the Chairman, NAB, or the trial Court is permitted to entertain such request after final
disposal of the case by the Hon'ble apex Court , such practice, if adopted, was to make provisions
of criminal law redundant and nugatory, changing criminal liability into civil liability, hence, the
same was not to be permitted.
15. We are also not persuaded by the contention of the learned counsel that the petitioners,
being parda nasheen ladies, were not aware about the pendency of the proceedings against the
appellant, who happens to be their husband. The record reveals that the instant proceedings were
initiated against the appellant in the year 2001. Besides the appellant, his son; viz, Gul
Muhammad was also agitating his right before different forums and needless to observe here that
during the pendency of the appeal before this Court, certain properties recorded in the name of
the appellant's s on, namely, Gul Muhammad were excluded from the reference, as, being a civil
servant, the said properties were acquired by him in his independent capacity. There is no cavil
to the proposition that under Article 10 -A of the Constitution, fair trial is the fundamental right
of every citizen, whereas Article 24 envisages that no one shall be deprived of his property save
in accordance with law. However, in the instant case, the properties recorded in the names of the
petitioners were declared by this Court to be acquired by the appellant through corruption and
the petitioners were holding the same on behalf of the appellant as benamidars. In peculiar
circumstances of the case, it can safely be concluded that the petitioners, being the wives of the
appellant, w ere well aware/apprised about the pendency of the proceedings and their legal rights.
They intentionally avoided appearance before the Court to agitate their alleged rights, while
feeling themselves not in a position to account for the said properties.
16. Moreover, in exercise of constitutional jurisdiction, the petitioners have to approach the
Court with clean hands. In the present case, we do not find any justifiable reason as to why the
petitioners failed to agitate their alleged rights during the who le episode. The contention of the
petitioners does not appeal to a prudent mind. The moving of application on their behalf for
joining them as party during the pendency of execution proceedings under section 33 -E of the
Ordinance, after a lapse of about 10 years in a past and closed transaction, is nothing, but a
cobweb story, introduced by the petitioners just to frustrate the orders of the Court. Admittedly,
the offence of corruption is more heinous than any other ordinary offence. Person, who was
involve d in any embezzlement, criminal breach of trust, fraud, forgery, accepting illegal
gratification etc., was not to be let off the hook merely on a highly technical grounds and in cases
of corruption, the approach of the Court should be dynamic and not stati c as observed by the
Hon'ble apex Court in a number of cases.
17. It would also be relevant to mention here that in addition to 7 years' RI to the
appellant, the reference properties were also forfeited in favour of the State and he was further
sentenced with a fine of Rs.30 million, or in default thereof to further undergo 16 months' RI.
Thus, the NAB, besides the forfeited properties, are also authorized to put in auction the
remaining properties of the appellant in order to recover Rs.30 mill ion fine amount as arrears of
the land revenue.
The upshot of the above discussion is that the learned counsel for the appellant and the
petitioners has failed to point out any illegality or irregularity, could force us to interfere in the
orders impugn ed herein, thus, the criminal appeals as well as the constitutional petition, being
devoid of any merit are dismissed.
MH/39/Q Order accordingly.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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