2015 Y L R 1596
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ
ABDUL HAFEEZ LUNI ---Appellant
versus
The STATE through NAB ---Respondent
Criminal Ehtisab Appeal No.11 of 2012, decided on 24th July, 2014.
National Accountability Ordinance (XVIII of 1999) ---
----Ss.32 & 33- E---Penal Code (XLV of 1860), S. 70---Criminal Procedure Code (V of 1898),
S.386---Recovery of unpaid amount of fine as arrears of land revenue ---Conversion of revision
into appeal ---App ellant was convicted and sentenced to suffer ten years' R.I., with fine of
Rs.50,633,833 or in default thereof to suffer two and a half years' R.I.---Appeal of the appellant
was finally dismissed as the appellant did not assail said judgment before the Supreme Court ---
Appellant was released from jail on completion of his term of imprisonment---National
Accountability Bureau moved application for recovery of fine ---Validity --Where an offender
having means of paying a fine, would choose to undergo imprisonment rather than pay the fine,
it was a sufficient special reason which would enable the court in its discretion, to order that the
fine be levied, notwithstanding that the offender had served the full term of imprisonment
ordered for default of payment of fi ne---Section 386, Cr.P.C. and S.70, P.P.C., clearly mandated
that the amount imposed in lieu of fine could be recovered as arrear of land revenue; while the
provision of S.33- E of National Accountability Ordinance, 1999, was analogous to the referred
provi sions of Cr.P.C. and P.P.C.--Impugned order passed by Accountability Court was
unexceptional and did not call for any interference by the High Court.
Haji Ghousuddin v. The State PLD 2012 Bal. 104 and Ahmed Ali Siddiqui v. Sargodha
Central Cooperative Banking Ltd. 1989 SCMR 824 rel.
Nemo for Appellant.
Syed Abuzar Haider and Ameer Zaman Jogizai, Senior Prosecutors NAB for the State.
Date of hearing: 14th July, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This appeal is directed against
the order dated 17- 12-2013 passed by the Accountability Court -I, Balochistan Quetta, 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 Penal Code, 1860 ("P.P.C.") for recovery of fine against the petitioner was accepted.
2. The brief facts of the case are that a Reference No.01 of 2001 was filed by the National
Accountability Bureau ("NAB") against the petitioner and others. The petitioner was convicted
and sentenced to suffer ten years' rigorous imprisonment with fine of Rs.50,633,833 or in
default thereof to suffer two and a half years' rigorous imprisonment. The petitioner assailed the
judgment be fore this court in Ehtisab Appeal No. 10 of 2001, which was dismissed vide
judgment dated 18- 5-2011. The perusal of record reveals that the petitioner did not assail the
judgment of this court before the Hon'ble Supreme Court and was released from jail on
completion of his term of imprisonment. The perusal of order passed by this court shows that the
Home and Tribal Affairs Department, Government of Balochistan issued a certificate No. (R&P)
RI (5)/2008/54 dated 27th August, 2008 showing that the petitioner has been released on
completion of his total sentence, therefore, petitioner's appeal was dismissed on having become
infructuous. The NAB authorities moved an application for recovery of fine and order passed
thereon has been assailed in this petition.
The perusal of record shows that this petition was filed through Mr. Adnan Basharat,
Advocate on 16 -1-2012 and the instant case is pending since then. This case finally came up for
hearing on 14 -7-2014, when Mr. Adnan Basharat, Advocate on repeated calls appeared and
stated at the bar that he had already informed the court that he is no more counsel for the
petitioner and he had also withdrawn his power and stated that after withdrawal of power he had
informed the petitioner. This case had been coming up f or hearing on 20 -11-2012, 11- 12-2012,
20-3-2013, 7- 5-2013,
11-6-2013, 31- 7-2013, 16- 9-2013,
2-10-2013, 5- 3-2014, 7 -5-2014, 30- 6-2014 and finally on 14 -7-2014. The perusal of record
further reveals that against the order of Accountability Court instead of filing an appeal a
revision was filed and on 20- 11-2012 the counsel for the petitioner requested for conversion of
the petition into appeal, which was allowed accordingly and the counsel for the petitioner was
directed to file amended title of the petitio n. However, the needful could not be done as the
petitioner's counsel did not turn up. Nevertheless, office has registered the petition as Criminal
Ehtisab Appeal No.11 of 2012. Though, there has been no representation on behalf of the
petitioner but we ha ve decided to proceed with the matter on merits as this being criminal appeal
could not be dismissed for non- prosecution.
3. Mr. Ameer Zaman Jogizai, learned Senior Prosecutor NAB, while opposing the appeal
supported the impugned order and 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 the judgment rendered by this court no
cavil is left to hold that the NAB is legally authorized to recover the fine from the petitioner and
in case of his failure same can be recovered as the arrears of land revenue, therefore, he urged for
dismissal of the petition.
4. We have heard the learned Senior Prosecutor NAB and conside red his contention in the
light of relevant provision of law.
The controversy involved in this case relates to an identical proposition which came up
for hearing before the Hon'ble Supreme Court in Ahmed Ali Siddiqui v Sargodha Central
Cooperative Banki ng Ltd., reported in (1989 SCMR 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 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."
The referred to pronouncement of the Hon'ble ape x 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 recovered as arrear of land
revenue, while the provision of section 33- EE NAO is analogous to referred to provisions of
Cr.P.C. and P.P.C., therefore, the impugned order passed by the Accountability Court -I, Quetta is
unexceptional and does not call for any interference by this court.
Thus, the petition being devoid of merit is dismissed accordingly.
HBT/41/Bal Petition 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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