2025 Y L R 2202
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Muhammad Najam -ud-Din Mengal,
JJ
ABDUL SATTAR LASI ---Petitioner
Versus
The STATE through DPG, NAB Balochistan and another ---Respondents
Constitution Petitions Nos. 2112 of 2022 and 600 of 2023, decided on 21st May, 2025.
National Accountability Ordinance (XVIII of 1999) ---
----S.33 -E---Penal Code (XLV of 1860), S. 70---Criminal Procedure Code (V of 1898),
S. 386 ---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Fine, recovery of -
--Scope ---Petitioner / convict was aggrieved of proceedings initiated by NAB for
recovery of amount of fine ---Validity ---NAB filed reference against petitioner / convict
in Trial Court after full- fledged trial ---Trial Court convicted and sentenced petitioner /
convict and the sentence w as maintained up to Supreme Court ---Trial Court rightly
allowed application of NAB filed under section 33- E of National Accountability
Ordinance, 1999, read with S.70, P.P.C. and S.386, Cr.P.C. for recovery of fine amount -
--Trial Court after proper appreciation of law passed a well -reasoned and speaking
order, which did not suffer from mis -reading, non- reading and mis -appreciation of law --
-High Court declined to interfere in the order passed by Trial Court as there was no
material illegality or irregularity in the order passed by Trial Court---Constitutional
petition was dismissed, in circumstances.
Allah Dina and another v. The State and another 2015 MLD 460 and Haji Ghousuddin
v. The State PLD 2012 (Bal.) 104 rel.
Rehmat Khan Mandokhail, Iftikhar Langove and Jam Saka Dashti for Petitioner
(while in Constitution Petition No. 600 of 2023) Respondent No. 2.
Ms. Afshan Memon, Special Prosecutor, NAB for the State (in Constitution Petition
No. 600 of 2023).
Amanullah Kanrani for Respondent No. 1 (in Constitution Petition No. 600 of 2023).
Date of hearing: 28th April, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J .--- This common judgement
disposes of C.P. No.2112 of 2022 filed by the petitioner Abdul Sattar Lasi son of Haji Juma and CP No.600 of 2023 filed by the State through Deputy Prosecutor General, NAB (Balochistan), since not only common question of law and facts are involved in both the petitions, but also the grievances of the petitioners are same.
The Constitutional Petition No.2112 of 2022 filed under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973, ("the Constitution"), which carries the following prayer:
"It is, therefore, prayed that the impugned order dated 28- 11-2022 passed by
Accountability Court No.1 respondent No.2 to be set aside/declared Null and Void in the interest of justice."
While the Constitutional Petition No.600 of 2023 filed under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973, ("the Constitution") wherein the
petitioner sought the following relief:
"It is, therefore, respectfully prayed that the Constitution Petition may kindly be
allowed and order dated 06- 02-2023 passed by Accountability Court No.I, Quetta may
kindly be set aside in the interest of justice, equity and fair play."
2. Relevant facts of the Constitutional Petition No.2112 of 2022 are that the National
Accountability Bureau ("NAB") Balochistan has filed a Reference bearing No.28 of 2000, under Section 18 (g) read with (b) of the National Accountability Ordinance ("NAO") 1999, against the petitioner/convict Abdul Sattar Lasi and others, which was adjudicated by the learned Accountability Court -I, Balochistan ("trial Court"), vide judgment dated 26th July
2001, whereby the petitioner convicted under Section 10(a) of the NAO, 1999 and sentenced to suffer 12 years R.I. with fine of Rs.250,000,000/ - and it was further ordered that the fine
amount be recovered by way of forfeiting of his immoveable properties, in default thereof, he
shall further undergo for a period of 4 years R.I. Being aggrieved, the petitioner assailed the
said judgment before this Court through Criminal Ehtesab Appeals Nos.60 and 61 of 2001, but this Court dismissed the appeal of the petitioner and upheld the judgment of trial Court, vide judgment dated 16th December 2003. Subsequently, the petitioner challenged the
judgment of this Court and trial Court in the Hon'ble Supreme Court of Pakistan through
Criminal Petition No.14 of 2004, but the petition of the petitioner was dismissed while the
Hon'ble apex Court made modification in the judgment dated 26th July 2001, whereby the sentence of petitioner was reduced from 12 year to that of 10 years, whereas the fine amount was ordered to be paid by the petitioner, vide judgment dated 18th March 2005.
3. When the judgment of the Hon'ble Supreme Court of Pakistan attained the finality, in
the meanwhile, NAB filed an application under Section 33- E of NAO, 1999 read with the
provisions of Section 70 P.P.C and 386 Cr.P.C. against the petitioner for recovery of fine amount of Rs.250,000,000/ - before the learned trial Court, which was dismissed as
withdrawn with permission to file fresh application, vide order dated 5th September 2006.
Whereafter, the NAB filed an application bearing No.15 of 2012 before the trial Court for
recovery fine amount under the provisions of above referred Sections, which was contested by the petitioner by means of filing rejoinder to the application and opposed the same on legal as well as on merit. It is suffice to mention here that during the pendency of said application, the learned Special Prosecutor NAB filed an application and requested that the fate of above application may not be decided until the Hon'ble Supreme Court decides an identical matter titled as "State v. Qazi Siraj" pending in the apex Court, whereby the proceedings before the learned trial Court were suspended, the request so made was allowed, vide order sheet dated 10th June 2014. Thereafter, on 5th May 2021 the learned Special Proseuctor filed another application, wherein prayed for restarting of the application proceedings as the Hon'ble Supreme Court has disposed off the above referred Criminal Petition. Consequently, the application filed by the NAB against the petitioner for recovery of fine was allowed, vie impugned order dated 28th November 2022, whereby the NAB was given permission to recover the fine amount of Rs.250,000,000/ - from the petitioner
(convict) by means of auctioning/disposing of his plot bearing No.275 -B Chiltan Extension
Housing Scheme, Quetta and the amount lying in his bank account No.6- 1-16-20311 -714-
127071 maintained in the Habib Metropolitan Bank, Hub Chowki Branch, as such, the petitioner has filed the instant petition before this Court.
4. While facts narrated in the CP No.600 of 2023 are that the respondent No.1 filed an
application for modification and recalling of order dated 28th November 2022, stating therein that he has purchased the property i.e. plot bearing No.275- B Chiltan Extension
Housing Scheme, Quetta, vide sale deed registered on 20th July 2020, which was contested by the NAB by mean of raising certain legal objection with regard to modification and recalling of order dated 28th November 2022, but the learned trial Court, allowed the application, vide impugned order dated 6th February 2023, hence the petitioner/NAB has filed the instant petition before this Court.
5. We have heard learned counsel for the parties and perused the available record, which
reflects that NAB has filed a reference against the petitioner (convict) in the trial Court, after full-fledged trial, the learned trial Court convicted and sentenced the petitioner (convict),
vide judgment dated 26th July 2001, which was challenged upto the Hon'ble Supreme Court of Pakistan, whereby the said judgment was maintained. After attaining the finality of the
judgment of Hon'ble apex Court, the NAB filed an application under Section 33- E of NAO,
1999 read with the provisions of Section 70 P.P.C and 386 Cr.P.C. along with all enabling
provisions of law against the petitioner for recovery of fine amount of Rs.250,000,000/ -
before the learned trial Court, which was allowed, vide impugned order dated 28th November 2022, while observing as under:
"13. So far as the contention raised by learned counsel for respondent that the respondent has already under gone the sentence of imprisonment of 4 years in default of payment of fine amount, therefore, fine amount cannot be recovered from respondent is concerned, this contention too has no substance. Because Hon'ble Supreme Court in unreported judgment dated 2- 7-2019 in Criminal Appeal No. 160,
161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018 and Criminal Petition No.27- Q
of 2011 and reported judgment 1989 SCMR 824 "Ahmed Ali Siddiqui v. Sargodha Central Cooperative Bank Ltd and another" have held "that a sentence of imprisonment in default of payment is not a substitute for payment of fine but as a matter of fact that said sentence of imprisonment is a punishment for non- payment of
fine. It had also been declared by the Hon'ble apex Court in that case that even if such sentence of imprisonment in default of payment of fine is under gone by a convict the amount of fine is still to be recovered from him". From the above referred judgments, it is crystal clear that the amount of fine is still to be recovered from respondent even if he has under gone the imprisonment of sentence in default of payment of fine. It has already hereinabove held that the instant application filed by NAB is with in time as the same has been filed within time limit of six year as provided in section 70 P.P.C. The application in hand also contains the section 70 P.P.C and 386 Cr.P.C besides, section 33 -E NAO, 1999."
6. In the meanwhile, the respondent No.1 (Muhammad Arif) in C.P. No.600 of 2023
filed an application in the trial Court for recalling and modification in the order dated 28th
November 2022 on the ground that he has purchased the said plot bearing No.275- B Chiltan
Extension Housing Scheme, Quetta, vide sale deed agreement dated 20th July 2020, which
was allowed by the learned trial Court, vide impugned order dated 6th February 2023 with the following observations:
"Though the court vide order dated 28- 11- 2022 has permitted the NAB to auction /
dispose of the plot bearing No. 275- B, Chiltan Extension Housing Scheme, Quetta
and recover the fine amount but one of the facts was over looked by this court while passing the order dated 28- 11-2022, because the NAB in its application under section
23 of NAO, 1999, which was disposed of on same day vide separate order dated 28-11-2022, had admitted / mentioned that the said plot bearing No. 275- B, Chiltan
Extension Housing Scheme, Quetta has been disposed of by Abdul Sattar Lasi to petitioner Muhammad Arif on 02- 07- 2020. In view of such admission/declaration by
NAB the law of estopple comes into play and the NAB by its conduct / declaration is estopped to press for recovery of due fine amount from convict Abdul Sattar Lasi by auctioning plot bearing No. 275- B, Chiltan Extension Housing Scheme, Quetta
because Abdul Sattar Lasi has already sold out the same to petitioner Muhammad Arif and the application under section 23 of NAO, 1999 filed by NAB has also been dismissed vide order dated 28- 11-2022 because the section 23 of NAO, 1999 has been
omitted through National Accountability (Amendment) Act, 2022. The contention raised by petitioner has force and the NAB cannot press for recovery of fine amount from Abdul Sattar Lasi by auctioning/deposing of property i.e plot bearing No. 275- B,
Chiltan Extension Housing Scheme, Quetta in view of admission / declaration made in application under section 23 of NAO, 1999, which has already been sold out to petitioner Muhammad Arif. However, the NAB is at liberty to recover the fine amount Rs. 25 Crore from the convict Abdul Sattar Lasi by disposing of his other property, if exits in his name and the bank account No. No.6- 1-16-20311 -714- 127071
Habib Metropolitan Bank Hub Chowki Branch. With these observations the instant application is disposed of. This order will be a part and parcel of earlier order dated 28-11-2022 passed in application No 15/2022. File after completion and compilation
be consigned to main file.
7. The plain reading of the provisions of Section 386 Cr.P.C. and the Section 70 P.P.C.
reveals that the monetary sum imposed by way of fine is recoverable as arrear of land revenue, while the provisions of embodied in Section 33 -E of NAO 1999 is similar to
referred provisions as envisaged under Section 386 Cr.P.C. and 70 P.P.C. The law governing
with regard to recovery of fines, not only in NAB cases, but under any prevailing law, which stipulates that where the sentence includes imprisonment along with a fine, an accused, who has served the imprisonment in default of payment of the fine, he or she cannot be absolved from the liability of payment of fine. The period of incarceration served in lieu of non-
payment is to be construed merely as a punitive measure for default and not as a substitute
for the fine itself. Reliance in this regard is placed on the case titled as, "Allah Dina and
another v. The State and another, (2015 MLD 460), the relevant portion whereof is reproduced as under:
"The referred pronouncement of the Hon'ble apex 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 provisions of Cr.P.C. and P.P.C. The law of recovery of fine not only in NAB cases but in any other law for the time being enforced, where the quantum of sentence also entails the levy of fine and the accused, who has been convicted for any term of imprisonment followed by payment of fine, though served out the imprisonment in default of payment of fine, all he/she cannot be absolved from payment of fine because the imprisonment undergone in default be absolved from payment of the because the imprisonment undergone in default is to be treated as a reasonable punishment for non- payment of fine, therefore, the impugned order passed by the
Accountability Court -I, Quetta is unexceptional and does not call for any interference
by this Court.
8. Similar view has also been taken in the case of, "Haji Ghousuddin v. The State,
reported in PLD 2012 (Balochistan) 104, whereby it has been held as under:
"10. Reverting 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
levied 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 offender does not discharge from the liability any property which would, after his death, be legally liable for his 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 (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
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 question arises about the starting 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 application 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 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 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
decision 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 Pakistan 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 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 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."
9. Consequently, the impugned order dated 28th November 2022 shall remain intact to
the extent of petitioner (convict) Abdul Sattar Lasi and the fine amount of Rs.250,000,000/ -
imposed therein shall be recovered from him strictly in accordance with the prevailing law.
10. The observations so made by the learned trial Court in the order dated 6th February
2023, upon perusal thereof we find that the learned trial Court after proper appreciation of
law has passed a well -reasoned and speaking order, which does not suffer from misreading,
non- reading and mis -appreciation of law, as such, the same has rightly been passed in
accordance with the settled principles of law.
11. In view of the foregoing, the learned counsel for the petitioners have failed to point
out any material illegality or irregularity in the impugned orders dated 28th November 2022 and 6th February 2023 passed by the learned trial Court, which are not open for warrant interference by this Court.
For the reasons discussed hereinabove, the petitions being devoid of merits are
dismissed.
MH/82/Bal. Petitions 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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