' FAROOQ ALI CHANNA , J.---By this common order we intend to dispose of applications under section 426, Cr.P.C. Read with section 561-A Cr.P.C. Filed separately in the abovementioned Cr.
Acctt. Appeals arising from the same judgment dated 9th October, 2012 passed in Reference No, 28 of 2002 and 28-B of 2002 whereby the appellants were found guilty of offence under section 9(a) of the National Accountability Ordinance, 1999, and the appellants Syed Muhammad Ajmal Mahmoodi, his wife Ghousia Ajmal, Mirza Ashfaque Ahmed and Roshan Ara were awarded sentence for 7 years' R.I and fine of Rs,10,00,000 (Rupees Ten lac) each, in default thereof to suffer further one years' R.I, whereas the appellants Sabeena Farooq, Dr. Abdul Rahman Rajput, Farida Begum, Mansoor Ahmed and Muhammad Sultan were awarded sentence for 5 years' R.I and fine of Rs,5,00,000 (Rupees five lac) each in default thereof to further undergo sentence for 6 months' R.I.
The appellants were extended benefit of section 382(B), Cr.P.C. The trial Court also ordered forfeiture of property declared in the "Statement of Affairs" against the above said appellants, within the meaning of section 15 of National Accountability Ordinance, 1999.
2. Learned counsel appearing for all the appellants have contended that none of the appellants was the direct beneficiary of earnings made by Messrs T.J Ibrahim and Company and Messrs Alliance Motors by means of corruption and corrupt practices. The allegations against the appellant Sabeena Farooq was that she had purchased a bungalow which had been purchased by the previous owner from the funds of Messrs T.J Ibrahim and Company and Messrs Alliance Motors, appellant Dr. Abdul Rahman Rajput was unauthorized occupant and title holder of property Flat No, 602, Amber Palace, appellant Syed Muhammad Ajmal Mahmoodi, his wife appellant Mst.
Ghousia Ajmal, appellant Mirza Ashfaq Ahmed, his wife Mst. Farida Begum and Mansoor Ahmed alongwithothers were the beneficiaries of 10 plots in "Khanka Sharif' in Korangi, Karachi and 3 flats in Yasrab Plaza, Karachi, whereas appellant Muhammad Sultan was the beneficiary in Plot No, B-20/A, S.I.T.E, Karachi. It was further contended that though appellant Mrs. Roshan Ara has been shown Director of Messrs Alliance Steel Mills (Pvt.) Limited but there is no charge against her that she was the beneficiary of funds of Messrs T.J Ibrahim and Company and Messrs Alliance Motors. It has been further contended by the learned counsel that none of the appellants has any direct involvement or interest in the business of Messrs T.J Ibrahim and Company and Messrs Alliance Motors. The appellant Farida Begum, Ghousia Ajmal, Sabeena Farooq and Roshan Ara being female and the other male accused being of adVance age, their case may be considered sympatheticcally besides the merits particularly when the appellants had already suffered agony of trial for more than 10 years and during trial they remained in jail for considerable time without any fault on their part.
3. While pointing out the errors in the impugned judgment and the illegality committed by the learned trial Court, it has been argued by the learned counsel that the appellants have been sentenced without recording conviction, whereas the impugned judgment has been passed in violation of express provisions of sections 366 and 367, Cr.P.C. As no offence has been specified nor the relevant section, under which the appellants have been convicted, has been mentioned by the trial Court. It is further argued that in the case of all the appellants the learned trial Court has neither considered nor recorded its finding on the entire evidence, including documentary evidence, particularly which supported the case of the appellants. Per learned counsel, in the impugned judgment no reason whatsoever for rejecting or ignoring such material evidence has been recorded, which renders the impugned judgment as nullity in the eyes of law. It has been further contended that all the appellants, including four women, are of advanced age with ailing health have remained in jail during trial, and whereas the sentence awarded to them is short, therefore, their sentence is liable to be suspended on admission of appeal for regular hearing. As regards objection relating to maintainability of an application under section 426, Cr.P.C, for suspension of sentence awarded under National. Accountability Ordinance, 1999 the learned counsel have placed reliance on the following reported cases: 2003 SCM R 22, 2002 M LD 603, 2006 SCM R 1225, PLD 2003 Kar 398, 2003 PCr.L,J 154, PLD 2002 Kar. 497, 2002 YLR 3996, 2007 YLR 37, 2012 SCM R 997, PLD 2001 SC 607 and 1999 SCM R 2589.
4. Learned State counsel appearing on behalf of NAB has not opposed the maintainability of the listed-applications filed under section 426, Cr.P.C. In the above Cr. Acctt. Appeals, however, he has opposed the applications on merits and has contended that there is no error in the impugned judgment, whereas the cases relied upon by the learned counsel for appellants, the sentences were suspended either on the ground that the appellants had already undergone major portion of the sentence or on the ground of their serious ailment whereas in the instant case no such ground has been taken, hence the applications are liable to be dismissed.
5. We have heard all the learned counsel for the appellants, learned D.P.-G. NAB, and have also perused the impugned judgment as well as the cases-law relied upon by the learned counsel for appellants. In the above referred judgments the three division benches of this Court in the cases reported as Hakim Ali Zardari v. The State (2003 PCr. LJ 154), Muhammad Usman Farooqui v. The State (PLD 2003 Kar. 398) and Mst. Shaista Shamim v. The State (2007 YLR 37) as well as the Hon'ble Supreme Court in the case of Adnan A. Ithawaja v. The State (2008 SCM R 1439) have held that provisions of section 426 Cr.P.C. r/w section 561-A, Cr.P.C. Can be invoked in Accountability cases, however, keeping in view the facts and circumstances of each case. Although the reasons for suspending the sentences in the cited judgments were different from the grounds taken in the instant matters, but the principle has been laid down that the sentences awarded in NAB references can be suspended during pendency of appeal, therefore, the provision of section 426, Cr.P.C. Are attracted in the Cr. Acctt. Appeals.
6. The tentative perusal of impugned judgment reveals that the charges against above named appellants were that they have purchased properties or they were benamidar of properties allegedly purchased from the funds of Messrs T.J Ibrahim and A Company and Messrs Alliance Motors, as such prima facie there seems no charge against them for being the direct beneficiaries of companies in liquidation. It is also evident from the impugned judgment that at the time of pronouncement of judgment, admittedly, two of the accused persons namely. Muhammad Tahir and Mst. Raldishanda Jabeen were absent and the sentences were awarded to them in absentia, which apparently is in violation of section 366, Cr.P.C. The learned trial Court while recording the judgment has found the appellants guilty of offence under section 9(a) of NAO 1999, which section has further been bifurcated in (xii) subsections but while awarding the sentence the learned trial Court has not specifically mentioned that which accused was found guilty of which subsection of section 9(a) of NAO. The fate of the said legal defect will be considered at the time of final hearing of the appeals.
7. Keeping in view the above defects pointed out by the learned counsel for the appellants, the advanced age of the appellants, who also include four ladies, and the agony of prolonged trial, we are of the view that the appellants have made out a prima facie case of suspending the sentence awarded to them during the pendency of appeals. We, therefore, suspend the-operation of the sentence awarded to the appellants namely Syed Muhammad Ajmal Mahmoodi, Mrs. Ghousia Ajmal, Mirza Ashfaque Ahmed, Roshan Ara, Sabeena Farooq, Dr. Abdul Rahman Rajput, Farida Begum, Mansoor Ahmed and Muhammad Sultan, and direct their release on bail subject to furnishing surety in the sum of Rs,One million each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.