2001 PLP 1754 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑Leave is sought against the judgment of the High Courtof Sindh, Karachi dated 21‑6‑2000, passed in Accountability Appeal No.3 of 2000:

2. The facts, in brief, are that Accountability Court No.IV, Karachi, while deciding Reference No.3 of 2000 (old Reference No. 16 of 1997) convicted the petitioners for offences under section 4 of the Ehtesab Act, 1997 read with section 10 of the NAB Ordinance and sentenced each of them to undergo 5 years' R.I., vide judgment dated 12‑4‑2000.

3. Feeling aggrieved, the petitioners filed Criminal Appeal No.3 of 2000, under section 32 of the National . Accountability Bureau Ordinance, 1999, in the High Court of Sindh, Karachi. After hearing the learned counsel for the parties, the learned Division Bench allowed the appeal and remanded the case to the trial Court with following observations:‑‑ ".......... ..Obviously there is a substantial distinction in the position of instigator/abettor as compared to that of a mere beneficiary and the trial Court was required to take these questions into consideration before awarding the sentence. For the foregoing reasons we would allow this appeal to the extent that the impugned judgment is set aside and the case is remanded to the trial Court which may frame a proper charge and decide the matter after giving the parties an opportunity to lead evidence. We expect the trial to be concluded within one month from today."

4. Mr. Aitzaz Ahsan, learned counsel for the petitioners, inter alia. contended that the remand of the case for trial was not proper and the learned Division Bench violates the principles of double jeopardy. He further submitted that Dr. Usman Farooqi, the main accused‑petitioner, has already served out the sentence; and that before the trial Court the petitioners submitted proper evidence with supporting documents showing that the property held by them is not the result of any illegal gratification or through unlawful means. Learned counsel also referred to the observation of the learned High Court whereby it has been observed that proper charge was not framed as such the petitioners should have been acquitted by the High Court: and that leave to appeal may be granted. In support of his contentions, learned counsel has relied on Aminul Hoque v. Crown PLD 1952 FC 63; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Aslam v. Crown PLD 1953 FC 115; Asir‑ud‑Din Chaudhry v. The Crown PLD 1953 FC 125; Abdus Sattar v. The Crown PLD 1954 FC 120; Anwar and another v. The Crown PLD 1955 FC 185; Chutto v. The State PLD 1958 (W.P.) Karachi 18; Abdul Rashid v. The State PLD 1962 SC 249; Basanta Kumar Chaudhry v. The State PLD 1962 Dacca 61 and Mir Ahmed v. The State PLD 1962 SC 489.

5. Syed Tariq Ali, learned Stranding Counsel for the respondent contended that the, judgment of the learned High Court is proper legal and within the parameter of the provisions of Criminal Procedure Code, specially sections 225 and 237, Cr.P.C. and that after remand the prosecution has already concluded the evidence. So far as the defence is concerned two D.Ws. have already been examined by the trial Court; that the petitioners have also approached the learned High Court through a writ petition, so that more D.Ws. may be examined by them before the trial Court, which matter is pending before the High Court of Sindh; that the main accused Dr. Usman Farooqi is not only involved in this case, but he is also facing the trial in others eight criminal cases, which are pending before the Courts having jurisdiction, whereas Mrs. Anisa Farooqi and Miss Sharmila Farooqi. Detitioners Nos.2 and 3, are already on bail. He further pointed out that Cr.P.C: an accused person tray even be convicted if it appears in evidence that he committed a different offence for which he might have been charged and that the learned High Court has rightly remanded the case for re‑trial.

6. We have gone through the arguments of the learned counsel for the parties and have also minutely examined the impugned judgment. Admittedly, the learned High Court has considered the contentions of learned counsel for the petitioners and set aside the conviction and remanded the case to the trial Court for re‑trial by providing full opportunity to the petitioners The case law cited by the learned counsel for the petitioners, in our humble opinion, is not relevant for decision of this petition and is quite different and distinguishable in nature.

7. Admittedly, the trial of the accused is likely to be concluded within a shortest possible time. In these circumstances, we refrain from dilating upon the merits of the case so that the case of either party may not be prejudiced. The findings of the learned High Court are based on the principles laid down by this Court. Further, we do not find any irregularity or illegality to the impugned judgment, which is not open to exception. In view of the above reasons, the petition is dismissed and leave t s refused. N.H.Q/M‑224/S Leave refused