2005 PLP 633 (YLR)

Date of hearing: 26th September, 2002. MIAN MUHAMMAD NAJAM -UZ‑ZAMAN, J.--‑This single order shall dispose of Writ Petitions Nos. 15428 of 2002, 15429 of 2002, 17400 of 2002 and 17088 of 2002 filed by Sh. Muhammad Munir, Mujahid Zia Butt, Makhdoom Sayed Salah‑ud‑Din Gillani along with two others namely M.A. Hameed Faizi, Muhammad Ejaz and Ch. Ghulam Rasool respectively against Chairman National Accountability Bureau and the State etc.

2. The petitioners were tried by the learned Special Judge, Accountability Court No. II, Lahore in Reference No. 40 of 2001 filed by Chairman, NAB (National Accountability Bureau) under sections 18(g) and 24 of the NAB Ordinance, 1999, who vide judgment, dated 12‑8‑2002 convicted all the abovesaid petitioners under sections 9(vi)/10 and Schedule of ibid NAB Ordinance and sentenced each of them to three years R.I. with fine of one crore rupees each.

3. Challenging their conviction and sentence, the petitioners have filed Criminal Appeals bearing Nos. 1394 of 2002, 1391 of 2002, 1355 of 2002 and 1393 of 2002 respectively. Through the instant Constitutional petitions, suspension of sentence of the petitioners has been sought.

4. Learned counsel for the petitioners have argued that it is a case of no evidence; that none of the witnesses who have deposed before the Trial Court uttered even a single word to establish that the petitioners being Members of Board of Directors of National Industrial Co operative Finance Corporation (NICFC) were responsible for the shortfall of Rupees 1.8 billion by practicing fraud or embezzling the said amount, that none of the petitioners in the capacity of honorary director of the said corporation disbursed any amount from the NICFC to any person as loan nor anyone of them had availed any loan for themselves or for any other person to get personal benefit or caused any financial loss to the society (NICFC); that there is no allegation of getting loan by the petitioners but the learned Trial Court has mechanically observed that the petitioners have not paid the interest; that the learned Trial Court while convicting the petitioners has erroneously relied upon the inquiry reports which have no evidentiary value. In support of this argument reliance has been placed on case titled "State v. Zulfiqar Ali Bhutto and others" (PLD 1978 Lah. 523); that the learned Trial Court has erroneously convicted the petitioners merely on the ground that they should also suffer for getting the company of principal accused as a man is known by the company he keeps, which is hardly a ground for convicting a person under the criminal law; that there is no material available on record to show that the petitioners have any relations with the principal accused. Conversely, learned Deputy Prosecutor General for NAB has vehemently opposed these petitions.

5. Heard. Record perused.

6. All the petitioners have been awarded the sentence of three years' R.I. and admittedly most of the petitioners have already undergone the major portion of their sentence of imprisonment if calculated' from the date of their arrest. In case titled' "Adnan A. Khawaja v. The State" (Criminal Petition No. 281 of 2001, decided on 6‑2‑2001), their lordships of the august Supreme Court of Pakistan were pleased to suspend the sentence of the petitioner/convict who had undergone major portion of his sentence of imprisonment. Relative portion of the said judgment is reproduced for ready reference:‑‑ "We are not inclined to enter into the merits of the case because we are prima facie of the opinion that the petitioner had served out major portion of his sentence because he was convicted on 1st July, 2001 and thereafter on the eve of 14th of August, 2001, remission of six months was also added in his count and because for last six months he is in the custody, therefore, he must have earned other remissions which are available to all prisoners under the jail manual. Therefore, following the dictum laid down by this Court in the case of Zulfiqar Ali (ibid) we are inclined to accept the plea of the petitioner."

7. During the course of arguments, learned counsel for the petitioners have also placed on record a copy of order, dated) 9‑9‑2002 passed by august Supreme Court of Pakistan in Crl. M.A. No. 246 of 2002 in Criminal Petition No. 704‑L of 2002 whereby petitioners M.A. Hameed Faizi, Makhdoom Salahuddin Gillani and Muhammad Ejaz have already been admitted to interim bail in this matter. Similarly, three petitioners namely Makhdoom Salahuddin, Chaudhry Ghulam Rasool and M.A. Hameed Faizi admittedly are more than seventy years of age and on principal their cases are covered under first proviso to section 497(1), Cr.P.C.

8. Due to pendency of large number of appeals filed under the ibid Ordinance, hearing of the appeals filed by the petitioners is not within sight in the near future. Without entering into the merits of this case while keeping in view the observation of their lordship of the august Supreme Court of Pakistan in the abovesaid cases, we are persuaded to allow these petitions. Accordingly, while suspending the sentence of imprisonment of the petitioners, they are admitted to bail subject to furnishing bail bonds to the tune of Rs.5,00,000 (Rupees Five lacs) each with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judl.) of this Court. H.B.T./M‑697/L Sentence suspended.