2020 P Cr. L J 1291
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
M. KHALID AZIZ ---Appellant
Versus
The STATE through Director General NAB, Balochistan ---Respondent
Criminal Ehtasab Appeal No. 14 of 2015, decided on 6th January, 2020.
National Accountability Ordinance (XVIII of 1999) ---
----S. 32 ---Limitation Act (IX of 1908), Ss. 5 & 29(2) ---Appeal ---Appreciation of evidence --
-Condonation of delay--- Accused was convicted by Accountability Court vide judgment
dated 13.7.2015 and he preferred appeal on 12.9.2015---Accused sought condonation of
delay on the plea of his ailment ---Validity ---Specific period of limitation was provided under
S. 32 of National Accountability Ordinance, 1999---In view of the provisions of S. 29(2) of
Limitation Act, 1908, provision of S. 5 of Limitation Act, 1908 was not applicable ---High
Court declined to condone the delay caused in filing of appeal by accused--- Appeal was
dismissed in circumstances.
Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239; Allah
Dino and another v. Muhammad Shah and others 2001 SCMR 286; City District Government Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582 and Muhammad Islam v. Inspector -General of Police Islamabad
and others 2011 SCMR 8 rel.
Jawad Hassan Khan for Appellant.
Choudary Mumtaz Yousaf, Deputy Prosecutor General, NAB for the State.
Date of hear ing: 18th December, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Criminal Ehtesab Appeal No. 14 of 2015, filed
under section 32 of the National Accountability Ordinance, 1999 ("NAB Ordinance, 1999") is directed against the observation in the judgment dated 13th July 2015 ("impugned
judgment") passed by learned Accountability Court -II, Balochistan, Quetta ("trial court"),
operative portion whereof speaks as under:
"---. In consequence of the said voluntary return of the wrongful gain in the manner
referred to hereinabove, the accused was released subject to the penal provisions of
disqualification for 10 years etc. contained in section 15(b) of the NAB Ordinance,
1999 vide order dated the 13th July, 2015 passed by this Court in compliance with the directions of the Hon'ble High Court of Balochistan contained in the order dated 6th
March, 2014 passed in the Constitutional Petition under Article 199."
2. According to the NAB Reference No. 02 of 2010 the appellant Khalid Aziz
(proprietor of the Al -Aziz Trade International) amassed ill -gotten money in collusion with
the co -accused namely Haji Fojan, the owner of the National Enterprises and Haji
Muhammad alias Kooli the Custom Clearing Agent by preparing fabricated documents/bills
of lading and thus, indu lged into corruption and corrupt practices causing huge monetary loss
estimated to be worth Rs. 10,039,868/ - in all to the Public Ex -chequer and Foreign Exporter
i.e. Iranit -Sa, Company in the Islamic Republic of Iran.
3. In view of the aforementioned background of the corruption and corrupt practices of
fabricating false documents, dishonestly undervaluing the imported goods, unlawfully
evading the customs duty and other taxes from the customs authorities in the Islamic Republic of Pakistan and committing fraud on the foreign exporter i.e. Iranit -Sa company as
envisaged by the NAB Ordinance, 1999, the Director General ("DG") NAB, Balochistan, Quetta allowed the initiation of inquiry against the main accused/appellant namely Khalid Aziz vide letter dated 8th February 2008. Honestly confessing the commission of the offence
of corruption and corrupt practices of the fabrication of false documents, the undervaluing of the imported goods, the non- payment of the costs of the foreign exporter and the evasion of
the payment of customs duty and other taxes as envisaged by the schemed of NAB
Ordinance, 1999, during the course of inquiry, the main accused/ appellant namely Khalid Aziz entered into agreement of Voluntary Return of the wrongful gain of Rs. 100,039,868/ -
in lump -sum at his own free will in accordance with the provisions of section 25 (a) of the
NAB Ordinance, 1999.
4. However, contrary to the stipulated payment of the wrongful loss of Rs. 10,039,868/ -
in lump -sum in accordance with the terms and conditions of the Voluntary Return agreement
in-question, the accused Khalid Aziz initially deposited an amount of Rs. 5.04 (Rs.
5,040,000) out of the total consideration amount of Rs. 10,039,868/ -and got the matter
delayed on one pretext to another for payment of the balance amount. Finally, vide order dated 11th August 2009, the DG NAB, Balochistan, Quetta forfeited the already deposited amount of Rs. 5.04 million and allowed investigation against the accused/appellant Khalid Aziz on the basis whereof, the said Reference was sent to the trial court. It transpires that after submission of the Reference the accused/ appellant Khalid Aziz deposited another amount of Rs.2,500,000/ - bringing the total deposited amount to Rs. 7,540,000/ - against the
total consideration amo unt of Rs. 10,039,868/ . However, on appellant's failure to deposit the
remaining outstanding amount of Rs. 2,499,868/ - as per his commitment in the VR, the NAB
authorities filed the instant Reference.
5. After completion of inquiry/investigation Reference No. 02 of 2010 was filed before
the trial court. The trial court framed charge and read over to the accused/appellant on 17th August, 2010, which he denied and claimed trial. After a full dressed trial the accused was
disqualified as mentioned in para No. 1, hence this appeal.
6. We have considered the worthy arguments advanced by the parties and carefully
scanned the material available on record.
7. The impugned judgment was passed by learned Accountability Court -II, Balochistan,
Quetta on 13th July 2015, whereas the appellant has filed the instant appeal on 12th
September 2015. This appeal was required to have been filed within a period of ten days
from the date of the impugned judgment passed by learned Accountability Court under section 32(a) of NAB Ord inance, 1999. As admittedly this appeal was filed beyond the
prescribed period of limitation, in the instant appeal, Criminal Ehtesab (Misc.) Application No. 242/2015 was filed seeking for condonation of delay in filing the appeal on the ground that the ap pellant was suffering from Lumbago Right Side Sciatica (Back Bone) and has to
consult the doctor frequently, and on account of frequent travels, his illness went from bad to worse and the medical consultant at Islamabad advised him complete rest for a cons iderable
time. Due to this reason he did not approach this court for filing the appeal within time. It is a noticeable position that the appellant was present in the court when the impugned judgment was passed in his presence, which shows that delay in fil ing of the appeal was deliberate on
the part of appellant.
8. Question for consideration before us is whether provisions of section 5 of The Act IX
of 1908 can be applied to the facts of the case in hand or not.
9. According to section 29(2)(a) of The Act IX of 1908 the Limitation Act, 1908, where
any special or local law prescribes for any suit, appeal or application, a period of limitation
different from the period prescribed therefor by the First Schedule of the said Act, provisions of section 3 shall apply as if such period were prescribed there for in that Schedule.
Clause (a) of the same subsection suggests that in case special or local law provides
period of limitation for preferring appeal, provisions contained in sections 4, 9 to 18 and 22 shall ap ply only in so far as and to the extent to which they are not expressly excluded by
such special or local law.
Clause (b) of the said Section specifically rules out the application of remaining
provisions of The Act IX of 1908 including section 5.
10. Since specific period of limitation has been provided under section 32 of The
Ordinance XVIII of the NAB Ordinance, 1999, therefore, keeping in view the provisions of section 29(2) of The Act, IX of 1908, provisions of section 5 of The Act IX of 1908 will not
be applicable.
11. Similar proposition was moot point before the Apex Court in "Ali Muhammad and
another v. Fazal Hussain and others" (1983 SCMR 1239) and Hon'ble Supreme Court of Pakistan, while dealing with the provisions of sections 5 and 29(2) of The Act IX of 1908, held that if the time allowed for filing of appeal by special law is different from that given in The Act IX of 1908, provisions of section 5 stand excluded by virtue of section 29(2).
12. In "Allah Dino and another v. Muhammad Shah and oth ers" (2001 SCMR 286),
provisions of sections 5 and 29 of The Act IX of 1908 were examined with Reference to
provisions of section 115 of The Code of Civil Procedure, 1908 and while scanning the case law on the proposition, the rule of law expounded in the case of "Ali Muhammad and another v. Fazal Hussain and others" (1983 SCMR 1239) was endorsed.
Matter was again examined by the Hon'ble Supreme Court of Pakistan in "City
District Government Lahore through District Coordination Officer, Lahore v. Mian Muha mmad Saeed Amin" (2006 SCMR 676) and "Province of Punjab through Collector and
others v. Muhammad Farooq and others" (PLD 2010 Supreme Court 582) wherein same view was adopted.
In view of the matter, by no stretch of imagination, provisions of law under w hich
application has been made by the applicant seeking condonation of delay would apply.
13. Since provisions of section 5 of The Act IX of 1908 cannot be applied to the appeal
preferred under section 32 of The Ordinance XVIII of 1999, therefore, in the c ircumstances,
it is not legal compulsion to deal with the reasons assigned in the Criminal Miscellaneous seeking condonation of delay.
14. Contention raised by learned counsel for the applicant that law favours adjudication
on merits and technicalities sho uld not hamper the way of justice would not substantiate his
plea as question of limitation cannot be considered as a technicality simplicitor. Reliance is placed upon "Muhammad Islam v. Inspector -General of Police, Islamabad and others" (2011
SCMR 8).
15. Since appeal is barred by time and is liable to be dismissed on this score alone under
section 3 of The Act IX of 1908, therefore, there is no compulsion to deal with the merits of the appeal.
16. For the foregoing reasons, C.M.A. No. 242/2015 merits no c onsideration.
Accordingly the same is dismissed. The instant Criminal Ehtesab Appeal is also dismissed being time -barred.
MH/20/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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