2003 PLP 22 (SCMR)

Naveed Rasul Mirza, Prosecutor‑General, M. Afzal Siddiqui, Advocate Supreme Court and Raja Qureshi, Advocate‑General, Sindh for the State. Date of hearing: 3rd October, 2002. MUNIR A. SHEIKH, J.‑‑‑This petition is directed against the judgment dated 6‑8‑2002 of a Division Bench of the High Court of Sindh, Karachi whereby application filed by the petitioner during pendency of his appeal for suspension of his sentence has been dismissed.

2. The petitioner was tried in the Ehtesab Court under the NAB Ordinance, 1999 and through judgment dated 10‑2‑2001 was convicted under section 10 thereof and sentenced to 10 years' R.I. with fine of Rupees two crores in lieu thereof to undergo imprisonment for two years. The appeal filed by him against the said judgment is pending before the Division Bench of the High Court. Though it is the mandate of law under which the said appeal was filed that the same should be decided within 30 days but it has not yet been decided though it was filed on 19‑2‑2001. According to the certificate issued by the concerned Jail Superintendent, after adjustment of the periods of remissions earned by the petitioner, he has undergone the substantive sentence of 10 years. He has not been released according to him because he has yet to undergo two years' imprisonment in lieu of fine.

3. Mr. Naveed Rasool Mirza, learned Prosecutor‑General for NAB argued that according to the rule laid down in the case of Government of Andhra Pradesh and another v. Anne, Venkateswara Rao and others (AIR 1977 SC 1096), no remission could be earned during the period when the petitioner remained in jail during the trial and argued as such no benefit on account of remissions for the said period could be granted and if the remissions counted 'to the petitioner for the said period by the Jail Superintendent is excluded, the petitioner has not yet undergone the full substantive part of the sentence.

4. On this question, we on the last date of hearing passed an order that the Superintendent Jail alongwith the learned Advocate‑General should appear and assist the Court, Superintendent Jail has appeared and‑stated that uptil today, the Jail Authorities throughout the Province of Sindh have been adjusting the period of remissions earned by a convict for the period of imprisonment during trial as part of the substantive sentence of imprisonment if he was given the benefit of section 382‑B, Cr.P.C. Learned Advocate General, Sindh stated that according to the judgment of the Division Bench of the Sindh High Court, the convicts are entitled to earn remissions for the said period of imprisonment during trial if he was given the benefit under section 382‑E, Cr.P.C.

5. At present, we are dealing with a matter whether in the exercise of discretion vested in this Court, order of suspension of sentence should be passed or not therefor, the question as to whether he was entitled to remissions of the period of imprisonment during trial is not directly in issue, therefore, we will leave it to be decided at the proper stage when the question of calculation as to how much sentence, the petitioner had undergone would come up in relation to his release finally after disposal of appeal. Suffice it to say that at present, according to the Jail Authorities, according to relevant entries in the record, the petitioner has already undergone his sentence of imprisonment.

6. Learned counsel for the petitioner submitted that the petitioner is not at fault for the delay in the disposal of the appeal pending before the High Court though the same was required to be decided within 30 days. The assets of the petitioner have already been frozen by the Ehtesab Court and they are available with the State for the recovery of amount of fine if ultimately the appeal fails, therefore, on that account also, the interest of the State has been fully secured.

7. After hearing the arguments of learned counsel for both the. parties, we feel that it is a fit case for exercise of discretion in favour of suspension f of sentence of the petitioner, for the decision of the appeal filed b. him is not likely to take place in near future.

8. For the foregoing reasons, this petition is converted into appeal, the same is accepted and the sentence of the petitioner is suspended subject to his furnishing bail bond in the sum of Rs.10 millions with two sureties each to the like amount to the satisfaction of Nazar of the Sindh High Court. N. H. Q. /M‑680/S Sentence suspended.