Nasir Murad (Petitioner) VS The D.G NAB (Respondent)

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IN THE HIGH COURT OF S]NDH AT KARACHI

Present Mr. Molramnrcd Karin Khan Aslm N'lr. lustice Zul qir Ali Sansi

Criminal Accountability Appeal No.I2 of 2018.

Appellant: Abclul Jabbar S/o. Abdul Ghaffar, presently confinecl in Central Prison, Karachi through Mr. Syed Mehmoocl Alam Rizvi, Aclvocate.

Criminal Accountability Appeal No.13 of 201,8 a/w C.P. No.D-6262 of 2018.

A ppellant/ Petitioner Nasir Murad S/o. Abclul Sattar presently conJined in Central Prison, Karaclri through Mr. Shabab Sarki ancl Ms. Ilubina K. Durrani Aclvocates.

Itesponttent/ (NAB) Mr. Il.D. Kalhoro, Special prosecutor NAB Date of hearing: 22.09.2020.

Date, ol Jutlgment 0"1.10.2020.

IUDGMENT

N,IOHAMM AD KARIM I(H AN AGHA, I.- The appellants Abclul Jabbar and Nasir Murad were convictecl by the Accountability Court No.II, Sindh Karachi, vide Jur-igment rlated 02.04.2018 in Iieference No.37 of 2015 under secrion 9(a)(iii)(iv)(vi) of the National Accountability Orclinance, 1999 (NAO) and convicted under section 10(a) of the NAO ancl both sentencetl to untlergo liigorous Imprisonment for a period of 10 years and pay a fine of Rs.104,123,732/ - each in terms of section 11 of the NAO anci in default in Payment of fine they were orcierecl to serve a further two years R.l. The accused persons were disqualified for a periocl of 10 years under section 15(b) of the

NAO

to be reckoned from the clate of their release after serving their sentences from seeking or from being electecl, chosen, appointed or nominated as a members or rePresentatives of any public bociy or any statutory or local authority or in service of Pakistan or of any province as required under section 15(a) of the NAO. Hence the appellants have filed the above Criminal Accountability

*ft 3qs Appeals agarnst therr convrctron aucl Corrstttutton of I'etrhon for suspenston of serltence and release on barl

2 Brrefly the tacts as nanated tn the reference are that on recerpt of +- cornplatnt by the Natronal Accountablllty Bureau (NAB) agarnst accused Abdul Jabbar, Ex-Cash Offrcer/Gracle-i of Qasrm lnternational C.rrgo Tennrnal (QICT) Booth Nahonal tsank of Pakrsta;r (NBI']) Port Qasttn Authontv (PQA) frled by tlie Bratrch M.rn.rgcr N B P PQA, Lraqat Ali Sherkh regardrng hts tnvolvement tn act5 ()[ corruphotr antl corrupt lrr.lctrccs ane] slrortfall of Rs 208 mtllttln an tnqulry was author rzed whrch was subsequently convertetl lnto Investlgatlon 3 Durrng rnvestrgatron, tt was revealed that accusecl Abdul .labbar was posted aL QICI tsooth on ()l (ll 2012 antl accorcltngly vtde ortler elatecl 30,07 2013 was maclc Incharge Weboc Collectton Counter whereas accused Nasir Murad \4trs runnnrg Muracl Shrpprng Agencv, a clearrng age'ncy mostly dealrng rn "ee ble oil" Imports It was also revealed that accusccl Abclul Jabbar rrr I colllllvarlce wrth accused Nastr Mulatl ryere tnvolvcd In shortfall of Rs 708,217,164/ - The tnrtt.rl departmerltal rn(lulry rnto the malrer was alsn cor.reluclecl b1' tl.re N Il P authorrtres wheretn accused persons were founcl responsrlrle It was further rcvealetl that on 20062015, accused Abdul Jabbar clearecl twentv four (24) GDs of clrfferent Orl & Cht'e lnrP()rt('rs pcrtalnrng to M/s Muracl Sl.rrpprng Agencv amounltng to Rs 209,233,459 / - agarnst the recerpt of only erght (08) pa1, orrltrs of Rs 985,995/- maktng a shortfall of l<s 2l)8,217 ,464 / - whrch w.rs lnet agarnst the pay orders of stx other importers through cleanng on 25,06 2015,26.06 2015,29 0b 2015 and 30 6 2015 lhenatreof ()ther- rmporters whose pay orders were utrltzed rn clearance of CDs of remalnlng shortfall amount are Hameeda Industries, H M Extractron Ghee & Oll, Ikram Y.rkoob Orl & Glret, Mulahrd Orl, Latrf Gl.ree Intlustrtes and Orl Worlcl Pvt. Ltd .1 Dunng lnvestlgatron rt was also foulrel that on 24 06 2015, a cheque be.rrrng No 7516905276 anrountrng to Rs 35,00,000/- pertarnrng to account No 0731-2323-6100 rn thc narnr of sor.r of accuseLl Abelul Jabbal was transferrcd to the personal account of accused Nasrr Mur ad bearrng No,0103-7479-4100-0592. Accused Abdul Jabbar also recelved mllhons of rupees In shape of cheques from thc personal accounI of accuserl Nasrr Murarl bearrng No.0103-7479-1100-0592 whtch accusecl Abctul Jabbar deposrtetl lnto hrs personal account b('arlr18 No 0731-2366-9100-2311 It further revealecl that vanous accounts had beet.t

r-Ft found registered tn the name oi accused Abdul Jalrlrar and hrs famrll'members tn whrch transactrons of mrlhons of rupees h.rve been found Accused Abdul Jabbar also owns two precrous bungalows sltuated ()n Plot No 19, Memon Soctety near Ilaloch Colony antl I'lot No 518, Naseem CooFerattve Houstng Socrety, Hum Roatl, larnsheel Quarters, Karachr

5 ll.rat rnvestrgatr()r1 revealecl that accused No 1 Abclul Iabbar and accused No 2 Nasrr Muracl tn cortnr\'.u1cc w'tth caclt other h.rr.'c inls.r p p ro prtatt'el an amtrrrnt of lls 208,217,161/ - ancl commrttecl the olfence of corruptton and corrupt practrces as envrsageel u/s 9(a) NAO, 1999 and hence NAB frlecl a reference agarnst them before the accountalrllrty courts

6 I he charge was framecl agatnst the appellants by the tnal court to whlch they botlr plead not gurltv anrl claimecl lrr.rl

7 ln order lo pl'ove rts casc, the pr()secutton examtnetl 10 PWs and exhihlterl numerous e{ocuments The appellants both recortled therr statements unLler Seclron 342 Cr P C, whelebv they clenter.l the allegattons leveled agarnst them Nertl.rer appellants examrned tlremselves on oath nor drcl elther of the appellants call any DW rn support of lherr defence case

8 After assessrng the evtr.lence before rt thc learned Accountabrlrty Court con','rctt'cl arrcl sentc.ncerl both apFellarrls lry lh(' rillpugnecl ;urlgt:relrt as t'arlter rnenhonecl rn thrs ;uclgment Hcnce the appellants have frled these appeals agalnst therr convlctlons

9 l-he facts of the casc as weli as ev tcleuce proclucctl before lhe trlal c()urt hntt an claborate menhon rn the unpugned ludgment, therefore, the same are not rel.rrotlucetl herc so as to avord duplrcatlon and unnecessary repetltlon 10 After the reacling out of the evrclence anrl rlre rmpugnetl;udgment le.rrncel counsel Ior both the appellants candrdly conceded that the prosecutton had proved the charge agarnst both lhe appellants beyond a reasonable doubt and t that both ot thc appellants or1 rnstructrons drcl not want to argue thelr appeal on merlts but rnsteatl only requcstecl a reason.rble reductton In sentence on the glounds that appellant Abdul Jabbar (a) had served a substantral portron of hrs ser"rtence (b) he was an elclerlv man (c) that he suffererl from ill health (d) that the aPyrell3111 showed remorse for hrs actrons by rlecrtlrng not t(l conte:'t the appeal t/

(e)the appellant had usecl hrs trnre productrvely rn;arl whrch coulcl contrtbute tolvartls hrs reformatron (f) that he hael alreaclv been clrsmrssecl from servtce ancl (g) thar he hacl to provrtlt lor a large famrlr, who wcre sufferrng clue to his prolonged rncarceration, With regarel to appellant Nasrr Muracl almost the same ltlrtrgatlng factors applecl Lrut rn partrcular hc rvas of very bad health namely, (a) hacl serverl a substantlal portton of l.rrs sentence (b) he was an elderly man (c) that ht' suffereel from rll hcalth ancl w"rs now uneletgorng hrs second round ot canccr wl.rrch h.rtl re occurrecl (ci) that the appeJlant showed remorse for hrs acttons by clecrdrng not to contest lhc appe.rl (e) the appellant had used hrs time productrvely tu;arl whrch could contrrbute to,rvards hrs reformatron and (f) that lre had to provrcle tor a l.trge tamrly who wele sutterlng due to hrs prolonged tncarceratlon

II Learned Specral prosecutor NAB based on the mrtrgatrng crrcumstances put iorwarcl by tl.re appellants however drd rrot agree to a reductlon ln sentence for erther of the appellants however when confronted by the court that why L.rasecl on the partrcular facts anr.l clrcumstances of the case the appellants were n()t ('ntlflecl to an),' reductrolr rn therr sentoncc.s of rmprrsonmcnt lre hacl no ar'rs\^,er cxcept t(, subtnlt tltat tlte prosecutron had proved thc case agalnst the appellants beyoncl a reasonable tloubt anrl that they stood convrcted and therr sentenccs were in accordance wrth law

72 Havrng gone through the evtdence on record and the rmpugned yudgment we are of the vrew that tlte prosecutlon has proved its case against both the appelllnts beyond a reasonable doubt rn rcspect of the offence for which they wete cl.targed based on botl.r oral and documentary evrdence and thus the only rssue befor-e us ls ()lle o1 scntencrng

13 We note that sentenclng ts.rt the drscretton of the court and ts not a mechanrcal exercrse ln e\erclstng rts dlscretron the court should constder numerous factors such as the mrnlmum and maxrmum sentence whrch can be rn;rosr.d on convlctlon, thr. r-ole of the accusetl, the gravltv of the olfence, tr a NAB case the amount of loss caused to the Siate, whether the accused shows any I<tnd o{ remorse, whether the accuscd rs capable of reformation, the age of thc appeJlant, the health of the.rppellant, hrs conduct rn larl and how long he has

alrearlv spent rn larl etc In thls resPect reltance ts placecl on Muhammed Juman V State (2018 SCN'[R 318) n'l.uch hc'lcl as un,'icr at P322, "lnflrcttttg ao,r?'/afro,r ttnl tt)tltosttl1 sr'ttttncr' ts ltot fi nrcclntucnl derase bttt rt ts ttner ttus resllons ltlttl lo tfllrct, lltt, ratsotnl'le ilul fidtllttfitc santpnae, co))nttt\lsu)t1t( r,tth gt,ntttl ruul or setrnty of trLne, looktttg at tle titotn,e, ottendtng Nttl ot ttultSat lE t:tttulltstfi ces tlttt prouoked or tttstqatetl ,urr,rrgn ol tnlltL' anLl tt ttn'oLt'ts cotts(totts n\4tlttnlntt o.[ ,,,r,) No nnlhttn u'nl lorntult, slnuhttl or yrtrd strck could he ytrt'scrtltul or set otLl to ntllrct cottt'tctton ntLl sentence, sucll fnL'tors tnry fiont cfise to LtLst ttlti lt'lulL' tt)1dat l Ll 8 tclt a.rcrats? Lloilrl musl kccp nt Itght prot,rsrtns cotttttncd n Clrrt1tters-lll ud lV of n' P P C infortunately. to sentcncmg gut,lelmr' rc lrtul dorprt tn Pnkrclntt' tltottglt Courts lnt,e s?t out rcrtittt lttrnnetcrs ttl l aiy ar-ses as to tllnt ts nnttgrrttng nnd ctr i|Sritqhng Itrctn.sttltlct's tlnt ]nfiV ?'nlnfil nlternhott nul or Tnnpttg tt1 aotlt't(lt()11 nnrl or sttttanct uttlut tha Pnri rcters ltrolrdt'd ttttdtr tlu, ,.lnryng t,r Ttatnl prp7,1511111"

14 We ftncl the mtttgattng f.lctors ma(le 6ut []1' the both thc appellants clo lustlf)'.r retlttctton tn lhetr set.rtenccs keeprng tn vlerv that NnB was unable to grve ar1)r cLrgcnt reason as k) wh,v thc 10 yc.rrs sclltellce of imprlsonment lmPoseLl orr each of the appellants slroul<1 be matntatnecl Tl.rrs is especrallv so keeptng ln Vre\\, lhe vartous factoi's menttoned above t'hrch shoulcl be taken lnto account whtlst ext'r'ctsrttg our clscrctron on senlenclng and the mttrgatillS factors Put forward [''v the appellants l]or exarnple, tn thts case the maxrmum sentence was 1.1 vears under the NAO yet thc' appellants were both sentenced to 10 years u.)lpnsonnrc'nt (for ivhrch thel'halt'both.rlreaclv served out about 9 years as erplarned Iater rn thrs ;udgnrent) [lrus, wlrllst takrng rnto constderatton the ar gurnents/ mltlga tlng fac[ors;ushfvrng a rct]uctton in sentence of the appellants we herebl' by excrctstng ottr' ;utltctal clrscrelron undcr S'123 Cr PC marntarn the c()nvICtl()n ol Lrolh tl.rr' apPell.rnts Lrut urotlrft, the sentence of each of the appellants to the tlrne whrch they have already underBone In custody (whrch amounts to almost 5 years desptte netther of thcm berng Elven the benefit of S 3U2 B Cr P C whrch in our vtcw they rvere both enhtled to under the law r,r,hrch .rnrourris to arour.rrl .r Iurthet 31e.rrs plus whalcver remlsslons they were erltrtlcd to cluru.rg this appro\rmate 3 t ears In lail whrch means ln effect that the appellants have spent about 9 1'ears rn ;arl n'hen remisslons and S 382 B Cr. P C are rttcluclt'd) whrch trme unclergoue shall rnclude the two vear perlod for non Fdvn'l('nt of tlre [rrr( eslr('( rdll\ ar rvt'curtsrrlcr thetr ortgtrral l0 year scntence of

r rrrpr rsor1nrerlI to bc [oo hars]r ancl (lrsproporhoua le to Ihe offence for whtch the

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appellants were convicted keeping in view the sentencing range under the NAO and the loss causetl to the State and that they were illegally denieil the benefit of S,382-B Cr. P.C. The appellants shall be released unless they are wanted in any other custody case. With regard to the fine it aPPears that through the PW's the most loss which the appellants could have caused is RS 9 crore and as such each appellants fine is reduced from RS 10 crores to RS 4.5 crores each and it is made clear that eacl1 appellant is still liable to pav such fine which shall be recovered in the manner laic.l down in thc NAO ancl eac\ appellant shall also be subject to the sanle disqualifications as imposed in the impugned iudgment'

15.We are further fortifietl by our tlecision in reducing the appellant's sentences of imprisonment basecl on the particular facts and circumstances of this case by the recent supreme court case of Tariq Saeed v State (2020 SCMR 1177) which was also a NAB appeal against conviction where despite the appellant not showing any rernorse and arguing his case on merits it was helcl as uncler at P.1181 Para 9 which reads in material part as under:

I

Houeter, ultile relying on cnse titled " Muhanutnd Asltral nlins Chrudlmt 1,. The State" (1994 SCMR667) and tplile taking into considerntiotr tlmt tlu pelilioner is n n okl nnn tpitlr poor henlth conditiott, tolrcrens lrc lns alre ndy undergone strhstnntinl pnrl of sentence recorded by both the courts, we deen it npproprinte lo neet thc ends of iustice reduce tlte sentence atready inflictetl upon the petitioner from set'en yenrs to ft'e yenrs ruhile mnintniing tlrc sentence of fne of Rs.1,63,00,000/- and confscntion of fnrm*ouse belonging to petitioner in Jnuor of tlu Stite, In tlrc nhoue snid tenns, this petition is conperted into nppenl and pnrtly nllot'ed."

16.The appeals, any constitutiol.l petitions and listed applications stand dismissed except as modified above.

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