2018 P Cr. L J 300
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar, JJ
STATE through Prosecutor -General, NAB ---Appellant
Versus
FAROOQ CHOUDHARY through Executive Officer/Secretary, Cantonment Board,
Quetta and others ---Respondents
Criminal Ehtesab Appeal No. 1 of 2013, decided on 11th September, 2017.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(x) & 33 -E---Penal Code (XLV of 1860), S.70---Criminal Procedure Code (V of
1898), S. 386---Crimin al breach of trust with regard to any property ---Recovery of fine
amount ---Limitation ---Scope ---Allegations against the respondents were that they disposed of
524 plots of Cantonment Board by tampering the record and preparing fake lease deeds, site
plans, letters, certificates and reports ---Premium and ground rent were taken from the illegal
allottees and not deposited the amount in Board's account ---Total loss caused to the Exchequer
by the respondents was calculated as Rs. 404,400,000---Respondents were charged and were
found guilty, and accordingly convicted and sentenced to imprisonment and fine ---
Respondents filed appeal, which was dismissed and leave to appeal was not granted by the Supreme Court ---National Accountability Bureau filed application unde r S. 33- E, National
Accountability Ordinance, 1999 read with S. 386, Cr.P.C. and S. 70, P.P.C. for recovery of amount of fine, which was dismissed---Validity ---Section 70, P.P.C. and S. 386, Cr.P.C.
showed that the fine, or any part thereof, which remained unpaid, might be levied within six
years from the date of sentence; however, question had arisen as to the starting point of limitation ---Application under S. 33- E of National Accountability Ordinance, 1999 was barred
by nine months ---No plausible explana tion was given by the Bureau---Appeal was dismissed
accordingly.
Ahmed Ali Siddiqui v. Sargodha Central Cooperative Bank Ltd. and another 1989
SCMR 824 rel.
Muhammad Ewaz Zehri, Special Prosecutor NAB for Appellant.
Adnan Ejaz for Respondent No.3.
H. Shakil Ahmed for Respondent No. 5.
Date of hearing: 31st July, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This Criminal Ehtesab Appeal is directed against
the order dated 19.10.2012 (the impugned order), passed by the Accountability Court -II,
Balochistan, Quetta (the trial court), whereby the application under section 33- E of the National
Accountability Ordinance, 1999 (the NAO, 1999) read with section 386, Cr.P.C. and 70, P.P.C., for recovery of fine amount from the respondents, filed by the appellant, was dismissed.
2. Precisely stated facts of the case are that Reference No.01 of 2000 under section 9(a)(x)
of N.A.O., 1999 was filed by the National Accountability Bureau, Balochistan, Quetta (the NAB) against the respondents before the Accountability Court -I, Quetta with the allegations
that they from 01.01.1995 to 21.12.1997 collectively disposed of 524 plots of Cantonment Board, Quetta (CBQ) situated at Jinnah Town, Gulistan Town and Shahbaz Town, Quetta. While disposing of these plots, they tampered the r ecord, prepared fake lease deeds, site plans,
letters, certificates and reports. Moreover, premium and ground rent were taken from the illegal allottees were not deposited. Out of total plots, 393 plots were pertinent to Jinnah Town, valuing Rs.272,696,125 /-, 121 plots were situated in Gulistan Town amounting to
Rs.119,250,000/ - and 10 plots were in Shahbaz Town worth of Rs.104,605,000/ -. The
calculation has been worked out by the prosecution Rs.250/ - per sq. ft. in Jinnah Town,
Rs.350/ - per sq. ft. in Guli stan Town, Rs.300/ - per sq. ft. in Shahbaz Town and Rs.275/ - per
sq. yards as development charges for all the plots by the Cantonment Board. The total loss caused to the Government exchequer was calculated as Rs.404,400,000/ -.
3. After completion of trial, the trial Court vide judgment dated 22.5.2001 convicted the
respondents and sentenced them in the following terms:
(1) Accused Farooq Ahmed Chauhdary is convicted and sentenced under section 10(a)
for 5 years' R.I. and fine of Rs.3 Crore. The amount of fi ne be recovered by way of
forfeiting of his immovable properties. In case of non -recovery of fine through
forfeiture of his properties then he will further undergo 1- 1/2 year' R.I.
(2) Accused Mehrullah Khan Kakar is convicted and sentenced under section 10(a) for 3 years' R.I and fine of Rs.30 lac. The amount of fine be recovered by way of forfeiting of his immovable properties. In case the fine is not recovered he will further undergo 1 year's R.I.
(3) Accused Khaliq Dad Mandokhail is convicted and sentenced under section 10(a) for 5 years' R.I and fine of Rs.3 Crore. The amount of fine be recovered by way of forfeiting of his immovable properties. In case the fine is not recovered he will further undergo for 1 -1/2 years' R.I.
(4) Accused Shabbir Kamran i s convicted and sentenced under section 10(a) for 12
years' R.I and fine of Rs.7 Crore. The amount of fine be recovered by way of forfeiting of his immovable properties. In case the fine is not recovered he will further undergo 4 years' R.I.
(5) Accused Mu hammad Ali Hazara is convicted and sentenced under section 10(a) for
5 years' R.I and fine of Rs.3 Crore. The amount of fine be recovered by way of forfeiting of his immovable properties. In case the fine is not recovered he will further undergo
1-1/2 year s' R.I. (Underlining are provided by us for emphasis)
4. Feeling aggrieved, the respondents challenged the aforesaid conviction before this
Court by filing Criminal Ehtesab Appeal Nos.32, 34, 36 and 40 of 2001, which were dismissed vide common judgment dat ed 22.7.2002, with certain modification in the quantum of sentence
in the following manner:
"16. Thus in view of the above discussion, it is held that prosecution has proved its case against all the appellants. As we have already observed hereinabove, the role of accused Farooq Ahmed Chaudhry is not less than that of Haji Muhammad Bashir, Land Superintendent and Abdullah Durrani, Tracer, rather being the C.E.O. he had more responsibility on his shoulders being Principal Executive Officer of Cantonment Board
and was responsible for the affairs of the Board. Further appellants Haji Muhammad Bashir, and Abdullah Durrani had been working under his supervision and from the above discussion, the role played by the appellants is identical and simil ar in nature.
Lesser punishment given by the learned Accountability Court on the ground that he received less benefit is not appreciated and is improper. No request for enhancement was filed by the State, therefore, sentence awarded to Farooq Ahmed Chaudhr y is
reluctantly kept intact. However, in our considered opinion, sentence awarded to appellant Haji Muhammad Basheer, Land Superintendent and Abdullah Durrani, Tracer is excessive. Sentence awarded to them under section 10 -A of the Ordinance is reduced
to seven years' RI each and fine of Rs.3 crores each, in default to further undergo three
years' RI by each of them.
17. Coming to the next category of appellants i.e. property dealers, as appellant Mehrullah has been sentenced under section 10- A of the Ordi nance to suffer have held
that the role of all the appellants in this category i.e. the property dealers is identical and there is nothing on record to show as to who benefited more, therefore, in our considered opinion, to meet the ends of justice, the se ntence awarded to the appellants
namely Shabbir Kamran, Khaliq Dad and Muhammad Ali Hazara under section 10- A
of the Ordinance is reduced to that of three years each and fine of Rs.30 lakhs each in default of payment to further under RI for one year each." (Underlining are provided
by us for emphasis)
5. Thereafter, the respondents Muhammad Farooq Chaudari, Khaliq Dad and Muhammad
Ali Hazara have filed Criminal Petition Nos. 318. 34 -Q and 32 -Q of 2002, respectively, before
the Hon'ble Supreme Court, which w ere also dismissed and leave to appeal was refused vide
judgment dated 31st March, 2004.
6. It is necessary to mention here that during pendency of present appeal, the respondent
No.4, Kamran Shabbir died, thereafter, the appellant was directed to file ame nded title of the
appeal by impleading the legal heirs of the deceased Kamran Shabbir. The appellant filed
amended title of the appeal on 12th June, 2014 by impleading the legal heirs of the deceased
Kamran Shabbir as Respondents No.4(a) to 4(f).
7. After dismissal of petitions for leave to appeal by the Hon'ble Supreme Court vide
judgment dated 31.3.2004, the appellant i.e. The State through Deputy Prosecutor General,
Balochistan, submitted an application bearing No.2 of 2011, under section 33- E of NAO, 19 99
read with section 386, Cr.P.C. and 70, P.P.C. on 13.1.2011 for recovery of fine. The respondents contested the application by filing their rejoinder. The trial Court, after hearing both the parties, dismissed the application vide order dated 19.10.2012, hence this appeal.
8. Learned Special Prosecutor NAB contended that the trial Court completely
misinterpreted the provisions of section 33- E of N.A.O., 1999 and erred in passing findings
that the section 33- E of N.A.O., 1999 has no retrospective effect; t hat the trial Court failed to
appreciate the material available on record; that the impugned order was non -speaking and the
same is liable to be set aside.
9. Learned counsel for the respondents contended that under section 70 of the P.P.C., the
fine impos ed upon the respondents 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 N.A.O., 1999 filed in the year 2011, after the period of six
years, was hopelessly barred by time; that under section 386, Cr.P.C., if the offender has undergone the whole sentence in default of fine, no court can issue warrant for levy of fine. Learned counsel, lastly, prayed that the instant appeal be dismiss ed.
10. We have heard learned counsel for the parties and have gone through the record. The
question of law involved in this proceedings, whether under the provisions of section 70 of the
P.P.C. the amount of fine imposed on the respondents could not be re alized after they had
served out their substantive sentences as well as that awarded to them in lieu of payment of fine, especially when it was more than the period of six years provided in section 70, P.P.C.?
11. Reverting to the contention of the learned counsel for the respondents 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 year from the date of the sentence and that if the offender has undergone the whol e sentence in default of fine, no court can issue warrant for levy of fine as
provided under section 386, Cr.P.C. At this juncture, it would be relevant to reproduce herein below section 70, P.P.C. and section 386, Cr.P.C., which reads 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 levied at any time within six years after the passing of the sentence, and if, under the sentenc e, 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 offender does not discharge from the liability any property which would, after his death, be lega lly 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 moveable 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 th e offender in respect 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 all 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.
12. A bare reading of the above provision 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 sentence. However, the question arises about the starting point of limitation. The record reveals that the Criminal Petitions for lea ve to appeal i.e. Criminal Petitions No.318, 32- Q and 34 -Q
of 2002 filed by the respondents, were dismissed by the Hon'ble Supreme Court on 31.3.2004, while application under section 33- E of N.A.O., 1999 was moved by the NAB after dismissal
of the said appeal on 13.01.2011, which was barred by time for about nine months and in this regard no plausible explanation was given by the DPG, NAB, Balochistan. In this regard reliance is placed on the case of Ahmed Ali Siddiqui v. Sargodha Central Cooperative Bank Ltd. and another (1989 SCMR 824).
13. In view of the above discussion, the learned counsel for the appellant has failed to point
out any illegality or irregularity in the impugned order dated 19.10.2012, passed by the Accountability Court -II, Balochistan, Q uetta, thus, the criminal appeal being devoid of any
merit, is dismissed.
JK/132/Bal. 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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