Mohammad Asim Khan (Petitioner) VS The State NAB & others (Respondent)

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

C.P No.D-912 of 2018

DATE ORDER WITH SIGNATURE OF JUDGE

Present:

MR. JUSTICE NAIMATULLAH PHULPOTO

MR. JUSTICE SHAMSUDDIN ABBASI

1.For orders on M.A 4870/18

2.For orders on office objection

2.For orders on M.A 4871/18

4.For Katcha Peshi.

Date of hearing: 24.04.2018.

Date of order: 24.04.2018

Mr. Imam Bux Baloch, Advocate for petitioner.

Mr. Jangoo Khan, Special Prosecutor NAB.

Mr. Lutufullah Arain, D.A.G.

O R D E R

NAIMATULLAH PHULPOTO, J: Petitioner / Appellant Muhammad Asim Khan alongwith others was tried by learned Judge, Accountability Court at Hyderabad in Reference No.4/2015 filed by NAB. On the conclusion of the trial, by judgment dated 31.01.2018, Petitioner / Appellant Muhammad Asim Khan and three others were convicted and sentenced as under:-

POINT NO.2.

In view of the finding as recorded herein above point, I am of the humble opinion that prosecution has successfully proved the charge against accused persons each namely, Syed Manzoor Ahmed Shah s/o Ibrahim Shah, Ashfaque Ahmed Shaikh s/o Gul Hassan Shaikh, Gul Muhammad Palejo s/o Muhammad Hussain Palejo, Muhammad Asim Khan s/o Muhammad Ishaque Khan. They in connivance with each other have misappropriated an amount of Rs.87.163/- millions of health department of district Umerkot, Government of Sindh by misuse of their authority and wrongful gains by illegal means. Thus they have committed offence of corruption and corrupt practices as defined U/S 9(a), (vi), of NAO, 1999 punishable U/S 10 of the National Accountability Ordinance, 1999. Therefore, they are convicted and sentenced U/S 10(a) of NAO, 1999 r/w 265-H(ii) Cr.P.C to suffer rigorous imprisonment for five years each. Accused Gul Muhammad Palejo s/o Muhammad Hussain Palejo shall pay the fine of Rs.1,2000,000/-, accused Muhammad Asim Khan s/o Muhammad Ishaque Khan shall pay the fine of Rs.66,953,625/-, accused Syed Manzoor Ali Shah S/O Ibrahim Shah shall pay the fine of Rs.2,992,118/- and accused Ashfaque Ahmed Shaikh S/O Gul Hassan

Shaikh shall pay the fine of Rs.2,992,118/-. In case of default in non- payment of fine same can be recovered as arrears of Land Revenue from them as provided U/S 33-E of NAO 1999. The conviction and sentence awarded to accused Ashfaque Ahmed Shaikh S/o Gul Hassan Shaikh for the period of five years in Reference Nos.08/2015 & 02/2016 shall run concurrently with the conviction and sentence awarded to him in the instant case.

It is further directed that accused persons each namely Syed Manzoor Ali Shah, Ashfaque Ahmed Shaikh, Gul Muhammad Palejo and Muhammad Asim Khan shall forthwith cease to hold public offices, if any. Further, they shall not be allowed any financial facilities in the form of any loan or advances from any bank or financial institution (owned or controlled by government) for a period of ten years from the date of conviction. All the accused persons shall be entitled to benefit of section 382-B Cr.P.C. Their bail bonds stand cancelled and sureties discharged. The case against absconding accused persons each namely, Muhammad Ramzan S/o Shafique Ahmed, Syed Umar Ali Shah S/o Syed Manzoor Ali Shah and Nadir S/o Nizam-u-ddin shall be kept on dormant file till their arrest.

Certified copies of Judgment be supplied to accused persons each namely, Syed Manzoor Ali Shah, Gul Muhammad Palejo and Muhammad Asim Khan without charges. They are present on bail therefore, they are ordered to be taken into custody and are remanded to Special Prison NARA, Hyderabad to serve out the sentence according to law. Accused Ashfaque Ahmed Shaikh is called absent without intimation. Issue NBWs against him through Investigation Officer, NAB and on his arrest he be sent to Special Prison NARA, Hyderabad to serve out the sentence according to law.

Copies of Judgment shall be supplied to the State Bank of Pakistan and the Prosecutor of the Court for information and necessary compliance.”

2.Petitioner / Appellant Muhammad Asim Khan preferred appeal before this Court bearing Criminal Accountability Appeal No.D-13/2018, which was admitted for regular hearing and the same is pending before this Court.

During the pendency of said appeal, Mr. Imam Bux Baloch, Advocate, has filed Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for suspension of the sentence during pendency of the aforesaid appeal. Notice was issued to the Special Prosecutor NAB as well as Mr. Lutufullah Arain, D.A.G.

3.Mr. Imam Bux Baloch, learned Advocate for Petitioner /Appellant has mainly contended that the sentence of five years is short sentence and hearing of the appeal shall take some time. He has further contended that the Petitioner Muhammad Asim Khan was on bail during trial and after conviction

he is in jail since more than two months. In support of his contentions he has relied upon the cases of MAZHAR AHMED vs. THE STATE (2012 SCMR

997)and ABDUL HAMEED vs. MUHAMMAD ABDULLAH (1999 SCMR

4.Mr. Jangoo Khan, Special Prosecutor NAB as well as Mr. Lutufullah Arain, D.A.G. opposed prayer for suspension of the sentence.

5.We have carefully heard the learned Counsel for the parties and perused the relevant record. It appears that Petitioner Muhammad Asim Khan Appellant in Criminal Accountability Appeal No.D-13/2018 has been convicted by NAB Court vide judgment dated 31.01.2018 and sentenced to 5 years R.I and to pay the fine. Due to huge pendency of cases before this Court, hearing of the appeal shall take some time. Moreover, appeal is fresh one. It is also pointed out that the petitioner was on bail during trial and he is behind bar since two months. This factual position has not been controverted by the learned Special Prosecutor NAB.

6.In the case of ABDUL HAMEED vs. MUHAMMAD ABDULLAH and others (1999 SCMR 2589), the Honourable Supreme Court has held that sentence of 05 years is short one, relevant portion is reproduced as under:- “4. On the other hand, Mr. S.M. Masud, learned Advocate Supreme Court, for the. petitioner, has urged that the learned Additional Sessions Judge without putting to the petitioner the notice as to the enhancement of the sentence and without hearing the arguments, enhanced the imprisonment for three years to five years and the amount of fine from Rs.5,000 to Rs.10,000. Without going to the question, whether any notice was issued for the enhancement by the learned Additional Sessions Judge (as according to the State counsel such a notice was issued). We are inclined to hold that since the sentence was short and as the sentence was enhanced by the learned Additional Sessions Judge from three years to five years, it was fit case in which the Darned Judge in Chambers P` should have exercised the discretion in favour of the convict. We convert the above petition into appeal and admit the petitioner to bail in the sum of Rs.2,00,000 (two lacs) with one surety in the like amount to the satisfaction of the trial Court.”

7.The sentence awarded to the Petitioner / Appellant of 05 years is short one and hearing of the appeal shall take some time. For the above stated reasons while relying upon the above cited judgments, sentence of the Petitioner / Appellant is suspended during hearing of the appeal and he shall be released on bail subject to furnishing solvent surety in the sum of Rs.15,00,000/- (fifteen lacs) and P.R Bond in the like amount to the satisfaction of Additional Registrar of this Court. Petitioner shall deposit original passport with the Additional Registrar of this Court.

Let the copy of order be sent to the Ministry of Interior, Government of Pakistan, Islamabad by fax.

Petition stands allowed in the above terms. Listed applications also disposed of.

JUDGE

JUDGE

A.H.