SHAMSHAD ALI S/O MUHAMMAD USMAN ALI (Appellant) VS THE STATE THROUGH DIR GEN NAB (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr, Mohammad Karim Khan Asha Mr, Iustice Zulfiq ar Ali Sqnsi.

l Criminal Accountability Appeal No.03 of 2017.

Appellant: Shamshacl Ali S/o. Muhammaci Usman Ali, presently confined in Central Prison, Karachi through Mr. Saifullah, Advocate.

Respondent/State (NAB) Mr. R.D. Kalhoro, Special Prosecutor NAB.

Date of hearing: 't7.09.2020.

Date of Judgment 29.09.2020.

I UDGMENT

MOHAMMAD KARIM KHAN AGHA, I.- The a ppellant Sharnshad Ali t S/o. Muhammad Usman Aii was convicted by the Accountability Court No.lI, Sindh Karachi vide Judgment dated 23.12.2016 in Reference No'10 of 2009, under section 10(a) of the National Accountability Ordinance, 1999 (NAO) and sentenced to suffer R.l. for ten (10) years and fine of Rs.1,01,21,960/-. In case of ciefault in payment of fine he was ordered to suffer further R.l. for a periocl of one year. The appellant was also disqualified for a period of 10 years under section 15(a) of the NAO to be reckoned from the date of release after serving the sentence for seeking or from being elected, chosen, appointecl or nominated as a member or representative of any public bocly or any statutory or local authority or in service of Pakistan or of any Province and obtain any financial facility in the form of loan or aclvance from any financial institutions controlled by Government for the period of 10 years. Hence the appellant has filed above Crirnirral Accountability Appeal for against his conviciion'

2.'Ihe brief facts of the case are that the appellant/accused was postecl and working as Accountant/Superintendent at Area Study Centre for Europe in Karachi University and during the year 2006 a complaint dated 11.10.2006 was moved by Professor Dr' Naveed Ahmed Tahir, Director, ASCE, University of Karachi to Director General NAB Sindh against the appellant and upon which an investigation was conducted by NAB authorities who founcl fraudulent rnisappropriation/embezzlement

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from the funds of Area Study Centre for Europe (ASCE), University of Karachi ir-rvolving an amount of millions of rupees from ASCE's accounts maintained at National Bank of Pakistan, Karachi University Branch through forgery of official's signature by accused Shamshad Ali the then

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Accountant/Superintendent in ASCE and thereby accused embezzled total amount of Rs.10,121,960/- by means of forgery and fraud from ASCE's main account No.077-6 and the provident fund A/C No.12518-9 both of which accounts were maintained at NBP, University of Karachi branch. It is further allegecl that accused made different transfer entries from A/C No.077-6 from ASCE's account to A/c. No.11432-4 in his name and also made cash entries from the same account. The accused also made clifferent entries from A/c. No.012518-9 in the name of provident/pension funcl (ASCE) to the account in his name maintained at same branch and as such the National Accountability Bureau (NAB) filed Referencel0/2009 against l-rirn on account of hirn having cornrnitted acts of corruption and I corrupt practices under S.9 of the NAO.

3.The charge was framed against the appellant by the trial court to which he pleacl not guilty and claimed trial

4.In order to prove its case, the prosecution examined 10 PWs and exhibited numerous documents. The appellant recorded his statement under Section 342 Cr.P.C., whereby he denied the allegation leveled against him. He did not examine himself on oath or call any DW in support of his defence case.

5.After assessing the evidence before it the learned accountability court convictecl ancl sentencecl the appellant by the impugned iudgment as earlier mentioned in this judgment. Hence the appellant has filed this appeal against his conviction.

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6.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment, therefore, the salne are not reproduced here so as to avoid duplication and unnecessary repetilion.

7.After the reading out of the evidence and the impugned judgment learned counsel for the appeilant candidly conceded that the prosecution k l

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had proved the charge against the appellant beyoncl a reasonable doubt anrl tl're appellant on instructions did not want to argue the appeal on merits but instead only requested a reasonable reduction in sentence on the grounds that (a) he hacl served a substantial portion of his sentence (b) 't he was an old man of alnost 70 y'ears of age (c) that he suffered ill health and had already had an operation on his brain (d) that the appellant sl'rowed remorse for his actions by deciding not to contest the appeal and (e) the appellant had used his time productively in jail in activities which could contribute towards his reformation in that he had studied hard whilst in jail and had obtained numerous educational certificates.

8.Learned Special prosecutor NAB based on the mitigating circumstances put forward by the appellant however did not agree to a reduction in sentence however when confronted by the court that why based on the particular facts and circumstances of the case the appellant I was not entitlecl to any reduction in his sentence of imprisonment he hacl l1o answer except to submit that the prosecution had proved the case against the appellant beyond a reasonable doubt and that he stood convicted ar-rd the sentence was in accordance with law.

9.Having gone through the evidence on record and the impugned judgment we are of the view that the prosecution has proved its case against the appellant beyoncl a reasonable doubt in respect of the offence for which he was charged based on both oral and documentary evidence which irrcludes his confession and thus the only issue before us is one of sentencing.

10.We note that sentencing is at the discretion of the court and is not a mechanical exercise. In exercising its discretion the court should consider nu[lerous factors such as the minimum and maximum sentence which

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can be imposed on conviction, the role of the accused, the gravity of the offence, in a NAB case the amount of loss caused to the State, whether the accused shows any kind of remorse, whether the accused is capable of reformatiorl, the age of the appellant, the health of the appellant, his conduct in jail and how long he has already spent in jail etc. In this respect

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reliance is placed on Muhammed |uman V State (20i8 SCMR 318) which held as under at P322;

t " Intlicting comtiction and imposing sentence is not n mechanicnl exercise but it is onerous responsibility to inflict, fair, reasonable nnd adequnte sentence, commensurnte ruith gratity and or set erity of crime, looking nt tlrc motit e, nttending and or nitigating circunrctnnces tlutt prouoked or ntstigated conmrission of crirne nnd it ittz,ohtes conscious application of mind. No mntlrcnmticnl formuln, stnndnrd or ynrd stick could be prescribed or set out to inflict conuiction and sentence, such factors oary frorn case to cnse and tohile tmdertnking sttch exercise Court must l<eep in light prot,isiotts contnined in Anpturs-lll nnd lV of tlu P .P.C. Un.fortunntely, no sentencing guideline is lnid down in Pakistnn, tlrcuglt Courts lmtte set out certain pnrameters in nnny cnses as to rohnt rs nitignting and or nggrnuating circumstnnces tlnt may uarrant nlterntion and or onrying in conoiction and or sentence ruithin the parameterc prottided under the chnrgrng or pennl prooision" .

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11.We fincl the mitigating factors made out bv the appellant do justifv a reduction in sentence keeping in view that NAB was unable to give any cogent reason as to rt,hy the 10 years sentence of imprisonment imposed on the appellant should be maintainecl. This is especially so keeping in view the various factors rnentioned above which should be taken into account whilst exercising our discretion on sentencing and the mitigating factors put forward by the appellant. For example, in tl.ris case the tnaximum sentence was 14 years under the NAO yet the appellant was sentenced to 10 years imprisonment (for which he has already served out about 9 years as explained later in this judgment) despite the fact that the total ioss to the State was only approx one crore rupees which pales into relative insignificance when it is considered that the primary mandate of the NAB uncler the NAO is to pursue mega corruption cases worth billions of rupees. Thus, whilst taking into consideration the l. arguments/mitigating factors justifying a reduction in sentence of the appellant we hereby by exercising our judicial discretion under 5.423 Cr.PC maintain the appellant's conviclion but modify the sentence of the appellant to the time vvhicl-r he has already undergone in custody (which amounts to almost 7 years despite him uot being given the benefit of 5.382 B Cr.PC which in our view he was entitled to which amounts to around a further one year and 9 montlls plus whatever remissions he was entitled l-,

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to during this approximate 1.9 years in jail which means in effect that the petitioner has spent at least 9 years in jail when remissions and 5.382 B are - includecl) which time unclergone shall include the one year period for non payment of the fine especially as we consider his original 10 year sentence of imprisonment to be too harsh and disproportionate to the offence for which the appellant was convicted keeping in view the sentencing range under the NAO and the loss caused to the State and that he was denied the benefit of 5.382 B Cr.PC. The appellant shall be released unless he is wanted in any other custody case however it is made clear that he will still be liable to pay the fine imposed on him under the impugned judgment which shall be recovered in the manner laicl down in the NAO and be subject to the same disqualif ications as imposed in the impugned judgment.

"12. We are further fortified by our decision in re,Jucing the appellant's ! sentence of imprisonment based on the particular facts and circumstances of this case by the recent supreme court case of Tariq Saeed v State (2020 SCMR L177) which was also a NAB appeal against conviction where despite the appellant not showing any remorse and arguing his case on merits it was held as under at P.1181 Para 9 which reads in material part as under:

"..........Howeper, rulile relying on case titled "Mulumrnad Asltaf alins Clnudhry u The Stnte" (19s4 SCMR667) nnd rilile tnking into considerntion tlnl tlrc petitioner is nn old man ruitlr poor lrcnlth condition, ruherens lrc hns nlready undergone sthstnntial part of senlence recorded by hoth tlre courts, rue deem it nppropinte to meet the ends of justice reduce tlrc sentence nlrendy inJlicted upon tlrc petitioner from setten years to fue yenrs rulile maintaining the sentence of fne of Rs.1,63,00,000y' and cont'iscntion of farm)nuse belonging to petitioner in fmtor of tlrc State. ln tlre nbotte snid terms, tlris petition is cornterted into nppenl nnd partly alloued."

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13.The appeal. any constitution petitions and listed applications stand dismissed except as modified above.

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IU GE

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