2015 PLP 1596 (YLR)

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 before 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stated at the bar that he had already informed the court that he is no more counsel for the petitioner and he had also withdrawn his power and stated that after withdrawal of power he had informed the petitioner.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 for 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 petition. 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 have 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 considered 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 Banking 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 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 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.