' NISAR HUSSAIN KHAN, J.--By this single judgment, We propose to decide these three petitions bearing Nos. 1292-P/2013, 1567-P/2013 and 1823-P/2013 as common question of law is involved in all these petitions.
2. Brief facts of W.P.No, 1292-P/2013 are that Abdul Jabbar petitioner was tried by the learned Judge Accountability Court in a NAB Reference for embezzlement of money amounting to Rs,51,54,646/- and after finding him guilty, was convicted and sentenced to 5 years' R.I. With a fine of Rs,51,54,646/- or in default of payment of fine, he had to suffer two years' R.I. And that fine amount was ordered to be recoverable from the movable and immovable properties of the accused as arrears of land revenue under section 33-E of the National Accountability Ordinance, 1999. However, he was extended the benefit of section 382-B Cr.P.C.
3. Petitioner filed appeal against his conviction before this court as Eh. Cr. Appeal No, 4/2006 which too was dismissed on 25.7.2007 and conviction and sentence awarded by the trial court was confirmed. He did not challenge his conviction before the august Supreme Court and as such it attained finality. Petitioner, according to his contention, underwent the substantive sentence awarded by the learned trial court as well as the sentence for default of payment of fine. The State through Senior Prosecutor NAB KPK filed an application under section 33-E read with Section 17 of the National Accountability Ordinance, 1999, for the recovery of fine imposed upon the convict which was objected by the petitioner before the Accountability Court and his that objection was turned down on 19.4.2013. As such the petitioner has filed the instant petition.
4. In W.P.No,1567-P/2013-, Ghulam Dastagir petitioner was tried by the Accountability Court in Reference No,3 of 2006 for charges of embezzlement of huge public money. On finding him guilty, he was convicted under Sections 9/10 of the NAO, 1999 and was sentenced to undergo 5 years' R.I.
And also to pay fine of Rs,94,00,000/- and in default to further two years' R.I.. The amount of fine was ordered to be recovered from the movable and immovable properties of accused as arrears of land revenue in terms of Section 33-E of the NAO, 1999. Benefit of section 382-B Cr.P.C. Was also extended to him. The conviction was challenged by the petitioner in Eh.Cr.A.No, 1/2008 before this court which was dismissed on 1.6.2010 whereby findings of the trial court were confirmed. Petitioner did not challenge the verdict of guilt before the august Supreme Court, as such the conviction attained finality and he served out the substantive sentence of imprisonment as well as imprisonment for default of fine. He did not pay the fine for which the State through NAB filed an application under section 33-E read with section 17 of the NAO, 1999 for recovery of the fine imposed by the trial court. This application was resisted by the petitioner by filing objection which was turned down by the learned trial court on 27.5.2013 which resulted into filing of the instant petition.
5. In W.P.No, 1823-P/2013, Tameez Gul petitioner was tried by the learned Accountability Court-HI, Peshawar, in Reference No,9 of 2005 for charges of embezzlement and corruption. The learned trial court on finding him guilty, convicted him under section 10 of the NAO, 1999 and sentenced him to two years' R.I. With a fine of Rs,860000/- and in default, to undergo SI for six months. The amount of fine was recoverable as arrear of land revenue from the movable and immovable properties of accused in terms of section 33-E of the NAO, 1999. Benefit of section 382-B Cr.P.C. Was extended to the accused. Petitioner challenged his conviction and sentence before this court in Jail Eh.Cr.A.No,8/2008 which was dismissed on 14.11.2006. He did not file any appeal before the august Supreme Court, as such his conviction attained finality. Petitioner served out the substantive sentence as well as sentence in default. The NAB Authorities filed application under section 33-E read with Section 17 of the NAO, 1999 before the Accountability Court-I, KPK, Peshawar, which was objected by the petitioner. However, his objection was turned down on 10.6.2013 which constrained the petitioner to file instant petition. As all these petitions mentioned above, involve common question of law and facts, as such are taken together.
6. Learned counsel for the petitioners argued that applications for the recovery of fine have been made after the prescribed period of six years and as such are time barred in terms of Section 70 of the P.P.C. They strenuously argued that proviso to Section 386 Cr.P.C. In unequivocal terms bars recovery of fine after serving out sentence for default. They maintained that after serving out sentence in default, the recovery of fine would amount to double jeopardy. They contended that no such proceedings have been initiated against alike convicts awarded punishment in the same period, as such they are being discriminated by the respondents and that recovery proceedings are without lawful authority which are liable to be quashed.
7. Learned DPG while controverting the arguments of the learned counsel for the petitioners argued that limitation shall be reckoned from the final judgment passed in appeals by the High Court, as such proceedings for recovery of fine are well within time. He maintained that the recovery proceedings are in accordance with law in vogue.
8. We have given our anxious considerations to the respective arguments of the learned counsel for the petitioners and learned DPG for the respondents and analyzed the same at the touch stone of different provisions of law.
9. Pivotal legal questions involved in all the three petitions are as to: * ' Whether the amount of fine imposed by the learned trial court and upheld by this Court can be recovered from the petitioners when they have served out not only substantive sentence of imprisonment but also imprisonment in default of payment of fine?; * ' If so, whether such fine can be recovered after six years of passing of sentence- by the trial court in terms of section 70 of the P.P.C? And , * ' Whether recovery of such fine would amount to double jeopardy?
10. Mr. A.K. Brohi, a Pakistani jurist, said in his book "Fundamental Law of Pakistan", "all over the modern world it is increasingly being realized that law is a social science; and further that it cannot be studied properly, if it is viewed in isolation from the many dimensional activities that are going on within the modern states". It is basic and fundamental principle of construction of legal instrument that when language of statute is plain and simple and carries a clear message, it should be given effect in the way it is couched. No other interpretation or meaning can be extracted therefrom on any hypothetical consideration, extraneous to the intent of the Legislature.
In this context, Aristotle may aptly be quoted: " To seek to be wiser, than the law is the very thing which is by good laws forbidden". While American Chief Justice Marshall expressed his views in these words: " Judicial power, as contradistinguished from the power of the law, has no existence.
Courts are the mere instruments of the law, and can will nothing".
11. Importance of preamble in understanding and construction of statute has been described by many a jurists. All are unanimous on the view that it is introductory part of the Statute which states reasons and intent of the law. It serves to portray the intent of the framer and the mischief to be.
Remedied. It affords in general a key to the construction of the statute and a clue to discover the plain object and general intention of the legislature in passing the Act and often helps to solution of doubtful points. It is regarded as a key to open the minds of the framers of the Act. House of Lords have authoritatively stated in Att-Gen. v. H.R.H. Prince Ernest Augustus of Hanover: " When there is a preamble, it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore, clearly permissible to have recourse to it as an aid to construe the enacting provision The Courts are concerned with the practical business of deciding a lis, and when the plaintiff puts forward one construction of an enactment and the defendant another, it is the court's business. If they admit of only one construction, that construction will have effect even if it is inconsistent with the preamble but if the enacting words are capable of either of the construction offered by the parties, the construction which fits the preamble may be preferred".
12. In Warburton v. Loveland (1831) 2D. & CL (H.L) 480, 489 it was said: "Where the language of an Act is clear and explicit, we must give effect to it, whatever may be consequences for in that case the words of statute speak the intention of the Legislature." It is expounded with persistence that even if a court is satisfied that the Legislature did not contemplate the consequences of an enactment, the court is bound to D give effect to its clear language. The rule and principle of construction of a statute is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. The Judges may not wrest the language of parliament even to avoid an obvious mischief.
13. In Gwynne v. Burnell (1840) TCL & F 572, 696 Lord Brougham said: " If we depart from the plain and obvious meaning on account of such views as those pressed in arguments, we do not in truth construe the Act but alter it. We add words to it, or vary the words in which its provisions are couched. We supply a defect which the legislature could easily have supplied and making the law, not interpreting it". In Stowel. v. Lord Zouch (1562) Plowd. 369, Chief Justice Dyer said: "If any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute and to have recourse to the preamble which is a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress".
14. Having discussed the principle of construction of statute, we would revert to the issue involved herein. Undisputedly, all the petitioners were charged for corruption and corrupt practices under E section 10 of the NAO 1999 and having been found guilty of the offence charged with, they were convicted and sentenced as described in the earlier part of the judgment. National Accountability Ordinance, 1999 is a special law which was promulgated, when other penal laws of Prevention of Corruption Act, 1947 as well as Pakistan Penal Code 1860 were already in operation. What necessitated to promulgate NAO 1999 in presence of these penal laws, is reflected in its preamble which would also be helpful to resolve the question formulated herein above. The objective of the promulgation of the Ordinance has been discretely transcribed in eight paragraphs of the preamble encompassing all the dimensions of corruption, corrupt practices, embezzlement and other forms of misappropriation of the public money.
15. Paragraph 2 of the Preamble to NAO provides for recovery or re-payment of amount to Banks, Financial institutions from the person who has committed default and Paragraph No,3 of the Preamble is to the effect that there is grave and urgent need for the recovery of State money and other assets from those persons who have misappropriated or removed such money or assets through corruption or corrupt practice or misused their power or authority. The whole edifice of the Statute has been raised on the objectives, summary of which has been provided in the Preamble.
Section 3 of the Ordinance commands in unequivocal terms that the provisions of it shall have overriding effect notwithstanding anything contained in any other law for the time being in force.
Simple interpretation of this Section which does not require any further elaboration is that all other laws will have to make way for provision of the Ordinance as it is a special law enacted for specific purpose embodied therein. Section 9 of the Ordinance defines different forms of corruption and corrupt practices in its different clauses whereas Section 10 is a penal clause according to which the person found guilty of the offence charged under section 10 shall be. Punishable with imprisonment for a term which may extend to 14 years and with fine and forfeiture of assets, found to be disproportionate to his known sources of income or which have been acquired through corruption or corrupt practices whether in his own name or in the names of any of his dependents or benamidars. Bare reading of Section 10 reflects that it provides three punishments simultaneously: imprisonment, fine and forfeiture of the assets acquired through corruption or corrupt practices. While section 11 clearly postulates that the amount of fine so imposed as a punishment shall in no case be less than the gain derived by the accused or any relative or associate by the commission of offence. By inserting Section 11, the Legislature has shown its concern that the benefits acquired by an accused shall be retrieved from him in favour of the State. And for recovery of fine Sec.33-E has been inserted in the NAO, according to which, amount of fine shall be recovered as arrear of land revenue.
16. The cursory survey of the relevant provisions of the NAO, 1999 portray a clear picture of scheme of law and intent of the legislature that it encompasses all dimensions of procedural requirements with regard to penalties and procedure for their implementation, particularly with reference to the fine. Section 17 of the Ordinance supplies the requirement, if occasion arises, of application of Code of Criminal Procedure 1898 provided there is nothing inconsistent with the provision of NAO .Whereas Clause (c) of Sec. 17 empowers the court to dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case. This saving clause is a clear manifestation of intent of the Legislature that the court may proceed with the case according to its own discretion, if it finds necessary to dispense with any provision of Criminal Procedure Code, in order to give effect to the provision of NAO.
17. Learned trial court while convicting the petitioners also awarded sentence of imprisonment for default of payment of fine which, allegedly, all the petitioners have undergone along with their substantive sentence. It is the main argument of petitioners that as they have undergone sentence of imprisonment for default of payment of fine, as such they are absolved from the liability of fine and proceedings of recovery initiated by the NAB authorities tantamount to double jeopardy. In general law, Sec. 64, P.P.C. 1860 provides punishment of imprisonment in default of payment of fine.
While there is no such provision in the NAO, 1999, whereas provisions of Pakistan Penal Code are not applicable to the cases falling within the purview of the Ordinance. As such Section 70 P.P.C. Has got no relevance in the instant case. It has already been concluded that by virtue of section 3 of the Ordinance, the provisions of the ibid Ordinance have over riding and super imposing effect being a special law over the general law. Likewise, Section 386 Cr.P.C. 1898 too, on the same principle has also got no relevance in presence of section 33-E of the Ordinance which itself enunciates the procedure of recovery of fine.
18. In 'case of "Ahmad All Siddiqui v. Sargodha Central Cooperative Bank Limited and another" (1989 SCMR 824 ), in similar circumstances when the convict had undergone the substantive sentence as well as sentence in default of payment of fine, the august Supreme Court dismissed the appeal of the convict by holding 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 to enable the court on its discretion to order that the fine may be levied notwithstanding that the offender has served the full term of imprisonment order for default of payment of fine."
19. Likewise in case titled "Siddappa v. State of Mysore (AIR 1957 Mys 52) , it was held that serving the full term of imprisonment fixed for default in payment of fine shall not extinguish the liability to pay fine. The imprisonment imposed in default of payment of fine should not be taken as a discharge of the liability but only as a reasonable punishment for non-payment of fine.
20. In view of the principle enunciated hereinabove, the sentence awarded for default of payment of fine is actually the sentence for nonpayment of fine. It cannot be termed as a consideration of the fine. Having undergone the sentence in default of payment of fine, the petitioners have not discharged their liability of payment of fine which was imposed under the special law for corruption and corrupt practices, particularly, when it is visualized in terms of section 11 of the Ordinance which manifests that the Legislature requires the recovery of the whole misappropriated amount in lieu of fine. If the interpretation and the view propounded on behalf of the petitioners is followed, it would certainly frustrate the very object of the Ordinance itself. It would be an easy task for the convict to undergo imprisonment in default of payment of fine and absolve from the liability of the benefit derived through corruption and corrupt practices and thereby grab the whole misappropriated amount. Such an interpretation would be in sheer derogation of the very object of the Ordinance itself. Thus this objection on behalf of the petitioners is repelled.
21. The contention of the learned counsel for the petitioners that recovery proceedings by virtue of section 70, P.P.C. Are time barred having been filed after six years of the conviction, is also misconceived. The petitioners were tried and convicted under the provisions of the Special Law of NAO, 1999. The provision of P.P.C. Have got no nexus with it nor the principles of the P.P.C. Have been given any room in the Ordinance. As such the limitation provided in section 70 is inapplicable to the instant proceedings. More so, this principle is further supplemented by the provision of section 17(d) of the Ordinance which stipulates that regardless of Section 234 of Cr.P.C., a person accused of more offences than one of the same kind, committed during the span of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences. Whereas in general law Section 234 Cr.P.C. Provides for joint trial of only three cases of same nature committed during the period of one year only. Even Cr.P.C. Is applicable in those matters which are not provided in the Ordinance. Whereas provision of Pakistan Penal Code or application thereof has altogether been left out of the scope of the Ordinance. There is no such limitation provided in NAO for recovery of fine. As such this objection of the petitioners is also not tenable.
22. So far as reliance of the petitioners on the provision of Section 386 Cr.P.C. For non-issuance of warrant is concerned, that is also misplaced as it has already been held that provision of Section 386 Cr.P.C. Are not applicable when the Ordinance provides its own mechanism for recovery of fine in Section 33-E. Recovery procedure provided, in the Land Revenue Act is more effective and exhaustive, as such there is no room for having a recourse to Section 386 Cr.P.C. When procedure for recovery of fine is self-contained in special law, provision of Section 386 Cr.P.C. Cannot be invoked.
23. The objection of the petitioners with regard to double jeopardy is primarily based on Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973. For ready reference and to properly appreciate its legal import, it would be appropriate to have a glance of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 which is reproduced herein below:- "13. No person -
(a) shall be prosecuted or punished for the same offence more than once; or
(b) Shall, when accused of an offence, be compelled to be a witness against himself. "
24. Bare reading of the Article enunciates in unequivocal terms that the person must have been prosecuted earlier for the offence charged and convicted or acquitted for the same offence for which he is specifically charged and prosecuted subsequently. What Article conveys in unambiguous terms is that there must be double prosecution of accused for the same offence. If any such proceeding is subsequently initiated for prosecution of accused, he may raise the plea of autre fois acquit or autre fois convict. Likewise an analogous provision is available in the Indian Constitution in the form of Article 20(2). Same principle is recognized by the English Law and the American Constitution in the form of double jeopardy. It being a universally recognized notion is based on the principle of nemo debet bis vaxari: Nobody can be vexed twice for the same cause.
25. Section 26 of the General Clauses Act 1897 is also based on the same principle which though was constituted in the pre-partition era of sub-continent but has been adopted by both countries of India and Pakistan on acquiring independence like most of the other laws now prevalent. The Constitution is a document carrying an authority of superlative degree in legal parlance and may not be construed as a mere law but as machinery by which laws are made.
26. The Constitutional command and substantive provisions of General Clauses Act have their reflection in procedural laws in the form of Sec.403 of Code of Criminal Procedure, 1898. Subsection
(1) of Section . 403 Cr.P.C. Bars the second trial of an accused for the same offence. While Sub- Clauses (2), (3) & (4) of it elaborately enunciate the circumstances in which an accused can be re-tried for the same set of commission or omission constituting a different offence in different circumstances which for ready reference are reproduced in extenso as below:- "403. Person once convicted or acquitted not to be tried for same offence.
(1). A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of Rich offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made udder section 236 or for which he might have been convicted under section 237.
(2). A person acquitted or convicted of any offence may be fifterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, subsection (1).
(3). A person convicted of any offence constituted by any act causing consequence which, together with such act, constituted a different offence from that of which he was convicted, may be after wards tried for such last-mentioned offence if the consequences had not happened, or were not known to the court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any act may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5). Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 or section 188 of this Code.
' Explanation. - The dismissal of a complaint, the stopping of proceedings under section 249, or the discharge of accused is not an acquittal for the purposes of this Section."
' Like-wise, Section 26 of the General Clauses Act, 1897 runs as follows:- "26. Provision as to offences punishable under two or more enactments. - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished for same offence."
27. These provisions of Code of Criminal Procedure and General Clauses Act along with Constitutional guarantee against double jeopardy had come under consideration before the Supreme Court of Pakistan and India on different occasions with reference to different situations and facts. In Pakistan mostly the principle of double jeopardy as enshrined in Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 was pressed in the matters of service by the civil servants or employees of statutory bodies when they were departmentally proceeded against after their acquittal in a criminal charge by the court of law. In that situation, the august Supreme Court consistently held that objective of prosecution on criminal charge and departmental disciplinary proceedings are entirely different; one relates to the enforcement of the criminal liability and other is concerned with the service discipline and by holding as such, their plea of double jeopardy was repelled. In this regard, case of "The DIG Police Lahore and others v. Anis ur Rehman Khan (PLD /985 SC 134), Amir Abdullah v. Superintendent of Police and others (1989 SCMR 333), Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar (PLD 1987 SC 195), Muhammad Tufail v. Assistant Commissioner/Collector (1989 SCMR 316) may be referred.
28. In case of Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others (PLD 1978 SC 121), a criminal charge was leveled against a police official for torturing a person who later on died. A judicial enquiry was ordered into the incident and the enquiry Magistrate recommended the accused for trial of offences under Sections 304/330/342, P.P.C. On request of the prosecution, accused was sent to Special Military Court for trial. In the meanwhile, the Martial Law was lifted and the trial was transferred to the ordinary court of Magistrate where, after framing of charge, due to negligence of the prosecution in producing evidence, case was closed. Later on, on application of the complainant, case was transferred to the Court of Sessions Judge for lack of jurisdiction of the Magistrate. Accused raised plea that he was tried by the Magistrate and prosecution was closed, as such he cannot be retried by the Sessions Judge and second trial amounts to double jeopardy.
The High Court dismissed the plea by holding that there was no fresh prosecution as case was transferred before the conclusion of the trial. The august Supreme Court concurred with the findings of the High Court by holding that the petitioner's trial in no way can be termed as derogatory to the principles of autre fois acquit or autre fois convict, or violative of the Article 13 of the Constitution.
29. From the Indian jurisdiction, in the ease of S.A. Venkataraman v. Union of India and another (AIR 1954 Supreme Court 375) , it was ruled by the Supreme Court of India that the ambit and contents of guarantee of the Fundamental Right given in Article 20(2) are much narrower than those of the Common Law Rule in England or the doctrine of "Double Jeopardy" in the American Constitution.
They observed that Article 20(2) of the Constitution of India does not contain the principle of autre fois acquit. In order to enable a citizen to invoke the protection of Clause-(2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of same offence.
In order to press for the provision of said Article, phrase "prosecuted and punished" are not to be taken distinctively, rather both factors must co-exist. When Article 20 of the Indian Constitution and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 are put in juxtaposition, it appears that the language of both is the same except word "and" has been inserted between prosecuted and punished in the Indian .Constitution while in the Constitution of Pakistan, there is word "or".
However, both convey the identical message. Same view was expressed by the Supreme Court of India in the case of Maqbool Hussain v. The State of Bombay (AIR 1953 Supreme Court 325), Manipur Administration, Manipur v. Thokchom Bira Singh (AIR 1965 Supreme Court 87) and in case of State of Rajasthan v. Hat Singh and others ( AIR 2003 Supreme Court 791).
30. The above brief survey of the case law in the light of the relevant articles of the Constitution clearly demonstrates that there must be a subsequent prosecution and punishment in presence of former prosecution and consequential acquittal or conviction to avail the protection of Article 13 of the Constitution. The language of Article 13 is very much plain and clear which loudly speaks against double prosecution and punishment. In the light of this clear command of the Article, the courts, while applying the principle of double jeopardy and extending protection under Article 13 of the Constitution, have to see whether the accused is being prosecuted twice for the same offence or otherwise. There is no cavil with the proposition in view of the salutary command of the Constitution that nobody can be prosecuted and punished for an offence when he has already been prosecuted and acquitted or punished for the same offence by the competent court of law.
31. It follows that there is a Constitutional guarantee and legal protection against double jeopardy.
An accused proposed to be tried second time for the same offence for which he had already been tried and acquitted or convicted may legitimately plead autre fois acquit or autre fois convict.
However, if case of the accused does not come within the ambit of barring clause and fall within the exception embodied in Clauses (2), (3) and (4) of Section 403 Cr.P.C., he may legitimately be tried for the same offence.
32. In the instant case, there is no denial of the fact that the petitioners have been prosecuted and punished for offence of corruption and corrupt practices under Section 10 of the NAO, 1999. But N there is no second prosecution for the same offence. Rather what has been challenged in this petition is the proceeding of implementation of earlier punishment awarded by the National Accountability Court towards recovery of fine. As such these proceedings in no way can be termed as second prosecution for the same offence falling within the ambit of "Double Jeopardy". The trial court had awarded punishment of imprisonment in default of payment of fine which was for non- 0 compliance of its judgment/order with regard to payment of fine. Petitioners did not question' this finding of the trial court before the august Supreme Court after dismissal of appeal before the High Court and opted to undergo his imprisonment for default, despite having means of payment of fine.
33. The Sentence undergone by a convict in default of payment of fine cannot be a substitute for sentence of fine because -one sentence undergone by a convict cannot be treated as a substitute of another sentence imposed by a court of law. This analogy is neither recognized by the general law nor by the NAO, 1999. Hence the plea of double jeopardy raised by the petitioners is misplaced and as a corollary to the forgoing reasons is not tenable.
34. For what has been discussed above, the propositions formulated in earlier part of the judgment are answered accordingly and consequently these petitions being devoid of merits are dismissed.
Sd.
Nisar Hussain Khan, J ' MUSARRAT HILALI, J.--This judgment shall also decide connected W. Ps. Bearing No, 1567-P and 1823-P of 2013 as common question of law is involved in all the three writ petitions.
2. Impugned herein is the order dated 19.4.2013 recorded by learned Judge Accountability Court No,IV, Peshawar whereby application against the setting aside of proceedings initiated against the petitioner has been dismissed. -3. In W.P.1567-P of 2013, the petitioner has questioned the order dated 27.5.2013 whereby the application of respondent No,2 for recovery of fine amount of Rs,94,00,000/- was accepted by learned trial court while the petitioner of W.P.1823-P of 2013 has challenged the order dated 10.6.2013 vide which the application for recovery of fine amount of Rs,8,60,000/- was accepted.
4. Short but relevant facts of the instant case are that the petitioner was posted as Head Clerk in the Military Estate Office with effect from 2.12.1986 to 30.5.1998. During this period, embezzlement of millions of rupees took place in the office, hence the NAB took cognizance of the matter. In the investigation, it was unearthed that the appellant through .Deceptive tactics, forgery and misrepresentation has fraudulently misappropriated public money amounting to Rs,51,54,646/-, thus, Reference was filed before the Judge Accountability Court. On conclusion of trial, the learned Judge Accountability Court vide judgment dated 15.6.2006 convicted and sentenced the petitioner to 5 years' R.I with a fine of Rs,51,54,646/00 or in default thereof to undergo further 2 years' R.I., which was to be recoverable from the moveable and immovable property of the petitioner as arrears of land revenue in view of the provisions of Section 33-E of the NAB Ordinance, 1999, however, benefit of Section 382-B Cr.P.C. Was extended to him.
5. The petitioner questioned the said judgment before this court but his appeal was turned down on 25.4.2007. No further appeal was filed by the petitioner before the Hon'ble apex Court, therefore, the said judgment attained finality.
6. In the meanwhile, the petitioner completed his substantive sentence of 5 years' R.I with further 2 years' R.I in default of nonpayment of fine amount. However, on 25.6.2012, the Senior Prosecutor/Head of Recovery Wing NAB (KPK) filed petition under section 33-E read with Section 17 of National Accountability Ordinance, 1999 for the recovery of fine amounting to Rs,54,54,646/-. The petitioner, also filed application before the learned Accountability Court-IV, Peshawar for setting aside of the proceedings initiated against him but the same was dismissed on 19.4.2013, hence this writ petition.
7. In the connected W.P. 1567-P of 2013, the petitioner was Supervisor in UBL Gurgurai Branch, Timergara, Lower Dir where an embezzlement of Rs,94,00,000/- took place. The NAB (F) investigated the matter in due course and filed Reference against the petitioner with two others for corruption and corrupt practices. On conclusion of trial, the said charges stood proved against the petitioner, hence he was convicted and sentenced to 5 years' R.I with a fine of Rs,94,00,000/- or in default thereof to undergo 2 years' R.I with benefit of Section 382-B Cr.P.C. Was extended to him.
8. The petitioner in W.P.1823-P of 2013 has fraudulently and dishonestly caused loss of Rs,8,60,000/- to the National Bank of Pakistan Sheikh Maltoon Town Branch, Mardan. The petitioner was arrested and at trial the charge against him stood proved, thus, on .13.6.2006 he was convicted and sentenced by learned Judge Accountability Court-III, Peshawar to two years' R.I with a fine of Rs,8,60,000/-or in default thereof to undergo six months' S.I, however, benefit of Section 382-B was extended to him.
9. Learned counsel for all the petitioners contended that the impugned notice dated 18.6.2012 is misconceived as they have already undergone the default imprisonment and cannot be exposed to double jeopardy by punishment on the same allegations all over again.
10. As against that learned D.P.G.A. While supporting the impugned proceedings of respondents contended that the notices were issued in the light of judgment rendered by Balochistan High Court in the case of Haji Ghousuddin v. The State (PLD 2012 Balochistan 104) where the same question arose.
' Arguments heard. Record perused.
11. In all the three writ petitions, the question for determination is that whether each of the petitioners can be held liable for deposit of fine amount imposed by the learned trial court after completion of substantive sentence as well as imprisonment in default of payment of fine amount.
12. To appreciate the controversy, it is necessary to refer to the background of the matter. The petitioners in the present and connected writ petitions were convicted by learned Accountability Court, Khyber Pakhtunkhwaon different dates and they were sentenced as well as fine or in default thereof to suffer further imprisonment. The petitioners have served their substantive imprisonment and have further undergone rigorous imprisonment due to non-payment of fine amount. The controversy arose when a judgment was passed by Balochistan High Court in case titled Haji Ghousuddin v. The State (PLD.2012 Balochistan 104), wherein, it was held as under:- "The only question, which requires to be answered, is as to whether the amount of fine is recoverable, if the convict has already undergone the sentence of imprisonment in lieu thereof? In this regard, we are of the opinion that undergoing imprisonment, awarded in default of payment of fine, does not operate as a discharge or satisfaction of the order for payment of fine, in spite of undergoing the imprisonment in default of payment of fine, the liability of the offender is still there and that it could be enforced for the special reasons to be recorded in writing".
' However, it would be worthwhile to mention here that second Hon'ble Judge of the bench took a contrary view in a judgment titled (The State through Deputy Prosecutor General v. Muhammad Kaleem Bhatti (2010 MLD 676).
The NAB authorities thereafter served the petitioners with the impugned notices on different dates directing them to pay the fine imposed upon them by the learned Accountability Court.
13. To understand the matter, it is necessary to reproduce the relevant portion of the judgments dated 15.6.2006, 17.10.2007 and 13.4.2006, which is as follows:- W.P. 1291-P/13 "Resultantly, the accused is found guilty under section 9 of the National Accountability Ordinance and sentenced to suffer five years' RI and also to pay fine of Rs,51,54,646/- or in default to suffer RI for two years"..
W.P. 1567-P/13.
"The accused is found guilty and is convicted under sections 9/10 of National Accountability Ordinance, 1999 and is sentenced to suffer 5 years' rigorous imprisonment and also to pay a fine of Rs,94,00,000/- or in default to suffer further two (2) years' rigorous imprisonment. The amount of fine shall be recovered from the moveable and immovable properties of accused Ghulam Dastagir as arrears of land revenue under section 33 (E) of National Accountability Ordinance, 1999 and under section 386(1) (b) Cr.P.C. However, accused shall be entitled to the benefit of Section 382-B Cr.P.C."
W.P. 1823-P/13.
"The result is that the accused is convicted and sentenced to R.I. For 2 (two) years with a fine of Rs,8,60,000/- or in default S.I of 6 (six) months. The amount shall be recovered in accordance with the law. Benefit of Section 382-B is also given to the accused".
14. Considering the above parts of the respective judgments, it leads me to the conclusion that the same contains two types of punishment. The first form of punishment was imprisonment, which was mandatory and was imposed regardless of any other circumstance whereas the second punishment was in the form of pecuniary nature and was made conditional with imprisonment.
The language used in reducing the sentence into writing is clear, unambiguous and indicates that a direction for detention of petitioners in default of payment of fine for a specific period has been given and does not give an impression that they be detained in prison till the realization of fine amount. In the cases in hand, the petitioners after serving the imprisonment in default of payment of fine, received the impugned notices on different dates (though not directly addressed to them), wherein, directions have been given to pay the fine imposed upon them. The question arises here that when the accused served out the full term of imprisonment in default of payment of fine, would he still be liable to pay the fine or he is discharged of the liability of paying fine?
15. The National Accountability Ordinance, 1999 is a special law, wherein, Sections 3 and 33 of the Ordinance indicate that it prevails over all other laws. Section 10 of the Ordinance provides for punishment upon conviction, which includes imprisonment with fine and forfeiture of assets whereas Section 11 of the Ordinance provides for the fine, which shall not be less than the gain derived by accused or his relative or associate and are recoverable under section 33-E of the Ordinance. By going through the provisions of the Ordinance, it appear that while determining a sentence, the Statute leaves no discretion to the Judge in stating the terms of a sentence, however, the learned Accountability Judge by exercising powers not vested in him mechanically imported the term of imprisonment in default of payment of fine from Criminal Procedure Code, 1908 and has departed from Section 11 of the Ordinance ibid, thus, gave an option to the convict with regard to the payment of fine by holding that the accused is to pay fine or in default to suffer further imprisonment.
16. In the judgment delivered by Hon'ble Judges of Balochistan High Court, a reference has been made to Section 386 Cr.P.C., the relevant portion of this Section is reproduced as under:- S.386.
1. -----------------
(a) ----------
(b) ---------- "Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant ,unless for special reasons to be recorded in writing it considers it necessary to do so".
17. From the plain reading of the above proviso, it appears that the .Legislature has imposed condition for realization of fine after when the party has served out the imprisonment in default in payment of fine, hence the court shall not issue notice for realization of the fine unless for special reasons to be recorded in writing.
18. So far as the question that National Accountability Ordinance is a special law having its own procedure and has overriding effect over the general laws. It does not, provide any solution to the respondents with regard to the controversy involved, as the judgment dated 15.6.2006 has attained finality and as such can no longer be subject of interpretation.
19. The impugned notices do not show any special reasons for realization of fine amount as is required under the law. Even that apart, the learned trial court cannot directly take cognizance of this case and execute its own judgment. The learned trial court was required to adopt the procedure given in Section 33-E of the National Accountability Ordinance, however, without adopting the said procedure, the Senior Prosecutor/Head of Recovery Wing, NAB Khyber Pakhtunkhwa has haphazardly issued notices to the learned Accountability Court asking it to pay the fine amount ignoring the law on the subject.
' Thus, for the aforementioned reasons, I am of the opinion that the judgments of learned Accountability Court dated 15.6.2006, 17.10.2007 and 13.4.2006 have been fully acted upon and the petitioners 'have suffered the sentence imposed upon them, therefore, while accepting these writ petitions, the proceedings initiated against the petitioners for recovery of fine amount are declared null and void, without any lawful authority and of no legal effect. Consequently, the impugned orders dated 19.4.2013, 27.5.2013 and 10.6.2013 are set aside.
Sd.
Musarrat Hilali, J ' YAHYA AFRIDI, J.--Earlier, three writ petitions filed by Abdul Jabbar (W.P. No, 1292-P/2013), Ghulam Dastagir (W.P. No,1567-P/2013) and Tameez Gui (W.P. No, 1823-P/2013) were heard by a Division Bench of Hon'ble Mr. Justice Nisar Hussain Khan and Hon'ble Justice Ms. Musarrat Hilali, after hearing the parties, have rendered conflicting findings in their judgments ("referred judgments"). In consequence thereof, the matter was placed before his lordship, the Hon'ble Chief Justice, who vide' his order dated 27.3.2014 has referred the matter to me to render my opinion, as a Referee Judge.
2. It is noted that neither the worthy Chief Justice nor the worthy Judges, who heard and rendered the referred judgments, have formulated the points of difference on which opinion is to be sought from a Referee Judge. The present petitions, though relating to issues arising out of a criminal trial, were before this Court in constitutional jurisdiction. It is by now settled principle of law, that points of difference in judgments of worthy Justices, exercising constitutional jurisdiction would be dealt with by a Referee Judge under clause-26 of the Letters Patent of the Lahore High Court, which prescribes:- "26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section 108 of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state' the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it".
(Emphasis provided)
3. The extent of jurisdiction vested in a Referee Judge in cases other than purely criminal or civil appeals has been a matter of legal discourse in various judgments of our superior Courts. It was Hon'ble Justice Shabir Ahmad, who in Muzammil Niazi's case (PLD 2003 Karachi 526) rendering his opinion, as a Referee Judge, after relying extensively on past precedents, has expounded in detail the scope and extent of jurisdiction of Referee Judge in terms that: "In reference on account of difference of opinion in Constitution petitions, the procedure to be followed with reference to clause-26 of Letters Patent of Lahore High Court and Rule 5, Chapter IV-N, Volume V of High Court Rules (applicable to, the proceedings of this Court), was elucidated after extensive review of case-law in Muhammad Sayyar v. Vice-Chancellor University of Peshawar (PLD 1974 SC 257) by the Supieme Court. The observations made by Hamoodur Rahman C.J. Are as follows:- "In a case in which the members of a Division Bench are equally divided they must either deliver descending judgments bringing out the points of difference or formulate the points of difference for reference to third Judge and the third learned Judge must then decide the point or points of difference and return his opinion to the Division Bench to enable it to announce its judgments as held in the Full Bench case of the Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda (AIR 1943 Lahore 84). This is also the procedure prescribed by Lahore High Court Rules vide rule 5.
Chapter IV-N, Volume V".
' It was further observed that: "the High Courts in this sub-cohtinent have predominantly held that only the point of difference is to be referred and not the whole case, and that in such a difference the referee Judge should return the case to be disposed of to the Division Bench with his opinion on the point of difference".
' The final conclusion was stated as follows: "From the above review of the decision, it would appear that there is a consensus of opinion in all the High Courts. In a case of this nature, it is the only of difference that is referred to the third Judge and the third Judge merely resolves the difference between the Judges of the Division Bench, who continue to retain jurisdiction over the matter. The final decision in the case was to be on the basis of the majority opinion including the Judges, who constituted the Division Bench. Therefore, it is manifest that a referee Judge has no jurisdiction to decide anything else besides the points on which there is a difference of opinion, as the whole case or appeal is not before him".
' A somewhat similar situation had arisen for decision on account of disagreement between the two learned Judges of the Division Bench of this Court in Mir Muhammad v D.M. Nawabshah (PLD 1965 Karachi 494), Inamullah, J. (as he then was) to whom the case was referred as referee Judge observed that:--- "the learned Judges have not acted strictly in compliance with the provisions of clause 26 of the Letters Patent inasmuch as they have not stated expressly the point or points on which the difference of pinion arose between them. It is, however, unnecessary to remit the case back to the Division Bench for the formal formulation of the points in difference. The two judgments clearly indicate the points of difference."
' The procedure and practice adopted by the referee Judge in Mir Muhammad (supra) was approved by Supreme Court in Muhammad Sayya r (supra) and has been followed in subsequent cases by learned Judges of this Court.
In Zaibtan Textile Mills Ltd v. Central Board of Revenue (PLD 1971 Karachi 333) also similarly the questions on which the learned Judges of the Division Bench had disagreed were not framed, but the third learned Judge before whom the case was placed proceeded to decide the points of difference on reading the judgments of the two learned Judges of the Division Bench and by himself framing the questions on which there appeared to be difference of opinion between the first two Judges.
' The same procedure was adopted by Zaffar Hussain Mirza, J. As referee Judge (as he then was) in Maher Alvi v. Pakistan and 5 others (PLD. 1980 Karachi 609) in that case too, the questions on which the learned Judges of the Division Bench had disagreed were not framed, he proceeded to decide the points of difference on reading the judgments of the two learned Judges of the Bench on which there appeared to be the difference of opinion between the Judges.
' Following the above authoritative pronouncement, I am clearly of the opinion that as a referee Judge my jurisdiction is limited to resolve the difference between the Judges of the Division Bench who continue to retain the jurisdiction over the matter. Myself as referee Judge have no jurisdiction to decide anything else beside the point on which there is difference of opinion as the whole case is not before me".
(Emphasis provided)
' In view of the 'ratio decidendi' of the above judgment, when the points of difference in the referred judgments in constitutional jurisdiction are not specifically mentioned, then the Referee Judge has to take the following steps:- I. Highlight the conflicting findings recorded by the worthy Justices in the referred judgments; II. Render opinion on each point of difference in the referred judgments; and III. Refer back the case to the worthy Division Bench to pass the final decision in the case on the basis of the majority opinion; Justices who heard the case in the Division Bench and the Referee Judge.
4. Before I proceed to highlight the points of difference in the referred judgments, it would be pertinent to first point out that the facts leading to the three petitions have already been discussed threadbare in the valuable referred judgments. Hence, the same would not be recounted herein.
However, suffice it to state, that the essential admitted factual position is as under: I All the petitioners were proceeded against for "corrupt and corrupt practices" under the National Accountability Bureau Ordinance, 1999 ("Ordinance") by the Accountability Court and finally convicted. II. All three petitioners were sentenced to undergo imprisonment and also pay fine of a specified amount and on failure to do so were to undergo further six months' simple imprisonment. III.National Accountability Bureau ("NAB") did not challenge the said conviction and in particular the additional period of imprisonment in case of default to pay the fine. IV. The appeals of all the three petitioners against their conviction were maintained by this Court.
V. The petitioners served their substantive sentence and also served the term of imprisonment in default of the payment of the fine. VI. NAB filed separate applications before the Accountability Court under Section 33-E of the Ordinance, seeking the recovery of fine from each of the petitioner. VII. Accountability Court served notices upon the petitioners, which have been challenged before this Court and led to the difference of opinion of the worthy Judges.
Hence, the present Reference.
5. At the outset, it would be unjust if not unfair on my part not to appreciate the valuable legal discussion contained in the rendered judgments.
6. After reading the enlightening legal discourse rendered by my worthy Justices in the referred judgments, the points of difference, which arise and require opinion of the Referee Judge, are enumerated hereunder: Issue No,I ' Whether the amount of fine imposed by the learned trial Court and upheld by this Court can be recovered from the petitioners when they have served out not only substantive sentence of imprisonment but also imprisonment in default of payment of fine?
Issue No,II ' If so, who may recover the said fine and before which legal forum?
Issue No,III ' If so, whether such fine can be recovered after six years of passing of sentence by the trial Court, in terms of section 70 of the P. P. C . ? And Issue No,IV Whether recovery of such fine would amount to double jeopardy?
7. The opinion of this Court as a Referee Judge on each issue, in `seriatim', is as under: Issue No,I The Hon'ble Justice Nisar Hussain Khan has given his findings on the Issue No,1 in the following manner: "In view of the principle enunciated herein above, the sentence awarded for default of payment of fine is actually the sentence for non-payment of fine. It cannot be termed as a consideration of the fine. Having undergone the sentence in default of payment of fine, the petitioners have not discharged their liability of payment of fine which was imposed under the special law for corruption and corrupt practices, particularly, when it is visualized in terms of section II of the Ordinance which manifests that the Legislature requires the recovery of the whole misappropriated amount in lieu of fine. If the interpretation and the view propounded on behalf of the petitioners is followed, it would certainly frustrate the very object of the Ordinance itself. It would be an easy task for the convict to undergo imprisonment in default of payment of fine and absolve from the liability of the benefit derived through corruption and corrupt practices and thereby grab the whole misappropriated amount. Such an interpretation would be in sheer derogation of the very object of the Ordinance itself. Thus this objection on behalf of the petitioners is repelled.".
"So far as reliance of the petitioners on the provision of Section 386 Cr.P.C. For non-issuance of warrant is concerned, that is also misplaced as it has already been held that provision of Section 386 Cr.P.C. Are not applicable when the Ordinance provides its own mechanism for recovery of fine in Section 33-E. Recovery procedure provided, in the Land Revenue Act is more effective and exhaustive, as such, there is no room for having a recourse to Section 386 Cr.P.C.
When procedure for recovery of fine is self contained in special law, provision of Section 386 Cr.P.C. Cannot be invoked".
' The Hon'ble Justice Musarrat Hilali has recorded her findings on Issue No,1 in the following terms:- "So far as the question that National Accountability Ordinance is a special law having its own procedure and has overriding effect over the general laws. It does not provide any solution to the respondents with regard to the controversy involved, as the judgment dated 15.6.2006 has attained finality and as such can no longer be subject of interpretation..".
"Thus, for the aforementioned reasons, I am of the opinion that the judgments of learned Accountability Court dated 15.6.2006, 17.10.2007 and 13.4.2006 have been fully acted upon and the petitioners have suffered the sentence imposed upon them, therefore, while accepting these writ petitions, the proceedings initiated against the petitioners for recovery of fine amount are declared null and` void, without any lawful authority and of no legal effect. Consequently, the impugned orders dated 19.4.2013, 27.5.2013 and 10.6.2013 are set aside".
Opinion on Issue No,I ' I am in complete consonance with the findings rendered by Mr.Justice Nisar Hussain Khan on Issue No,
1. The reasons that have led me to this opinion, are as follows:- ' Firstly, Ordinance is a special law, aimed "to eradicate corrupt practices and hold accountable all those persons accused of such practices and matter ancillary thereof", as has been expressly recorded in the Preamble ibid. The punishment for the offence of "corrupt and corrupt practices" has been provided under Section 10 ibid, which expressly provides for rigorous imprisonment for a term which may extend to 14 years and with fine and confiscation of the tainted assets and pecuniary sources of the convicted person. Allowing the convicted person to undergo simple imprisonment in default of payment of sentenced fine or the confiscation of the tainted acquired property would surely be against the spirit and aim of the Ordinance.
' Secondly, it was argued by the learned counsel for the petitioners, that subsection (a) of Section 17 of. The Ordinance provides that the provisions of Code Criminal Procedure, 1898 ("Cr.P.C.") to mutatis mutandis apply to the proceedings under the Ordinance. And thus, provisions of section 386 of Cr.P.C. Would be applicable to the convicted petitioners. This line of argument though appealing is not .Correct appreciation of the Ordinance being a special law enacted for a specific purpose and aim, as enshrined in its "preamble".
' It is noted that subsections (a) and (c) of Section 17 of the Ordinance, clearly provides the 'rider' to the general application of Cr.P.C. To the proceedings before an Accountability Court under the Ordinance. The general application of provisions of Cr.P.C. Would not apply, when the same are inconsistent with any provision of the Ordinance or the Accountability Court for reasons to be recorded dispenses with the provisions of the Cr.P.C. And follow such procedure, as it may deem appropriate, in the circumstances of the case.
' Hence, the applications of all the provisions of Cr.P.C. Are not to be blindly followed by the Accountability Court under all circumstances.
' The most crucial issue remains: "whether the bar of issuance of warrant against a convict, who has undergone the, period in default of payment of fine, provided under "proviso" to Section 386 of Cr. P.C. Has been excluded any of the provisions under sub-clause (a) of Section 17 of the Ordinance or otherwise?
' The specific provisions provided in the Ordinance, which exclude the general provisions of the Cr.P.C. Are enumerated for reference, as under:- Section 9 (b)
Corruption and Corrupt Practices. (a)
(b) All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in Ss. (426, 491), 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court, shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.
Section 10(d)
Punishment for corruption and corrupt practices.
(a).................................
(d) Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentence.
Section 31-A.
Absconding to avoid service of warrants. (a) Whoever absconds in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance, shall be guilty of an offence under this Ordinance punishable with imprisonment which may extend to three years notwithstanding the provisions of Sections 87 and 88 of Code, or any other law for the time being in force.
Section 32.
Appeal and revision. (a) Any person convicted or the Prosecutor General Accountability, if so directed by the Chairman NAB aggrieved by the final judgment and Order of the Court under this Ordinance may, within ten days of the final judgment and order of the Court, prefer an appeal to the High Court of the Province where the Court is situated: Provided that no appeal shall lie against any interlocutory order of the Court.
(b) All appeals against the final Judgment and Order filed before the High Court will be heard by a Bench of not less than two Judges constituted by the Chief Justice of the High Court shall be finally disposed of within thirty days of the filing of the Appeal.
(c) No revision shall lie against any interlocutory order of the Court.
(d)................................. "
' In addition to the above clear sections, excluding the specific provisions provided under Cr.P.C., there is a specific mode of recovery of fine provided under Section 33-E of the Ordinance, which was inserted vide Ordinance No, CXXXIII of 2002 promulgated on 23.11.2002. The said section provides that: "Recovery of amount of fines, etc., as arrears of land revenue. Any fine or other sum due under this Ordinance, or as determined to be due by a Court, shall be recoverable as arrears of land revenue".
In view of the insertion of Section 33-E ibid, the authority to recover the fine from a convicted person under the Ordinance vests in NAB. Needless to mention, that prior to the insertion of Section 33-E on 23.11.2002, the provisions of Section 386 of Cr.P.C. Were fully applicable to any decision rendered by the Accountability Court 'qua' the sentence awarded and the period of imprisonment in default of payment of fine. However, after the insertion of Section 33-E ibid, a specific mode of recovery was provided in the Ordinance, which has to prevail over the general provisions provided under Cr.P.C.
Thirdly, it would be pertinent to review the various modes of recovery provided under Cr.P.C. In juxtaposition with that provided under the Ordinance.
Mode of Recovery of Fine under Cr.P.C. Section 386.
"Warrant for levy of fine. (1) Wherever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may:
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the District Officer (Revenue) authorizing him to realize the amount by execution according to civil process against the Movable or immovable property, or both, of the defaulter; Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant.
(2) The Provincial Government may make rules regulating the manner in which warrants under subsection (1), clause (a) are to be executed, and for the summary determination of any claim made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the District Officer (Revenue) under subsection (1) clause (b), such warrant shall be deemed to be a decree, and the District Officer (Revenue) to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly; Provided that no such warrant shall be executed by the arrest or detention in prison of the offender".
' Reviewing the aforementioned provision, it is noted that the trial Court has the jurisdiction to initiate recovery of fine against the person convicted and sentenced for the same. It is also noted that the trial Court has an option to adopt one of the two modes of recovery provided. Therein.
Firstly, it may issue a warrant for the amount fined to be recovered through attachment and sale of the moveable property of the convict. Secondly, in case, the trial Court does not proceed with recovery of fine itself, it may issue a warrant to the District Officer (Revenue) to recover the fine, assuming all powers of a decree-holder and apply the procedures provided for executing a decree under the enabling provisions of Civil Procedure Code, 1908. By adopting the latter option, the scope of recovery of fine extends to the moveable and immoveable properties or both of the convict. However, in such proceedings, no warrant can be executed for the arrest or detention in prison of the fined convict offender.
Mode of Recovery of Fine under Ordinance ' Section 33-E of the Ordinance provides for the sentenced fine to be recovered as arrears of land revenue. The enabling law providing the legal forum and procedure for the recovery is West Pakistan Land Revenue Act, 1967 ("Act"). Thus, providing a distinct mode of recovery from that already provided under Section 386 of Cr.P.C.
In view of the distinct mode of recovery of sentenced fine prescribed under. Section 33-E of the Ordinance, the general provisions provided for the same in Section 386 of Cr.P.C. Would not be applicable to the case of the present petitioners.
' Fourthly, under no circumstances, can the sentence of fine awarded by the Accountability Court under the Ordinance be condoned. The sentence of fine shall remain till its recovery under the law.
In the present case, as provided under Section 33-E of the Ordinance, the recovery of fine is to be recoverable as arrear of land revenue under the enabling provisions of the Act. To my mind, it would not matter, if the decision of the Accountability Court was upheld by this Court, as the recovery of sentenced fine would always remain in the field till its realization. At best, it can be said that after undergoing the imprisonment in default of payment of fine, the convicted petitioners cannot be arrested and put behind bars in case the recovery process under, the Act is not materialized positively.
Finally, having held that the provisions of Section 386 of X Cr.P.C. Do no apply to the facts and circumstances of the present case, it would still be important to clarify that the judgments cited at the bar and in the referred judgments, have as "Obitar dictum", referred to the "proviso" to Section 386(1) of Cr.P.C. Vesting the trial Court to proceed with issuance of a warrant against an accused by rendering reasons, despite his undergoing the period sentence in default of payment of fine.
This authority of the trial Court to render reason for issuance of warrants under Section 386 of Cr.P.C. Has in fact been deleted vide Law Reforms Ordinance, 1972.
Issue No,II Hon'ble Justice Ms. Musarrat Hilali has clearly rendered her finding that neither NAB nor the Accountability Court had the jurisdiction to issue the impugned notices, in terms that: "The impugned notices do not show any special reasons for realization of fine amount as is required under the law. Even that apart, the learned trial Court cannot directly take cognizance of this case and execute its own judgment. The learned trial Court was required to adopt the procedure given in Section 33-E of the National Accountability Ordinance, however, without adopting the said procedure, the Senior Prosecutor/Head of Recovery Wing, NAB Khyber Pakhtunkhwa has haphazardly issued notices to the learned Accountability Court asking it to pay the fine amount ignoring the law on the subject".
' Hon'ble Mr. Justice Nisar Hussain Khan has not rendered any specific finding on this issue.
Opinion on Issue No,II ' As discussed in Opinion on Issue No,1, hereinabove, Section 33-E of the. Ordinance expressly provides a clear mode of recovery of sentenced fine as arrears of land revenue. Hence, the mode adopted by NAB and the jurisdiction assumed by the Accountability Court for the recovery of sentenced fine is without lawful authority. The recovery of the sentenced fine has to be applied for by the NAB through the respective Revenue Collectors under the enabling provisions of the Act.
Issues Nos. III and IV.
Mr. Justice Nisar Hussain Khan has also rendered his findings on Issues Nos. III and IV, which reads as under: Issue No,III ' The contention of the learned counsels for the petitioners that recovery proceedings by virtue of section 70 P.P.C. Are time barred having been filed after six years of the conviction, is also misconceived. The petitioners were tried and convicted under the provisions of the Special Law of NAO, 1999. The provision of P. P.C. Have got no nexus with it nor the principles of the P. P.C.
Have been given any room in the Ordinance. As such the limitation provided in section 70 is inapplicable to the instant proceedings. More so, this principle is further supplemented by the provision of section 17(d) of the Ordinance which stipulates that regardless of Section 234 of Cr.
P. C. a person accused of more offences than one of the same kind, committed during the span of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences. Whereas in general law Section 234 Cr. P. C.
Provides for joint trial of only three cases of same nature committed during the period of one year only. Even Cr.P.C. Is applicable in those matters which are not provided in the Ordinance.
Whereas provision of Pakistan Penal Code or application thereof has altogether been left out of the scope of the Ordinance. There is no such limitation provided in NAO for recovery of fine. As such this objection of the petitioners is also not tenable.
Issue No,IV ' The objection of the petitioners with regard to double jeopardy is primarily based on Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973.
' For what has been discussed above, the propositions formulated in earlier part of the judgment are answered accordingly and consequently these petitions being devoid of merits are dismissed".
' Justice Ms. Musarrat Hilali has not rendered any findings on the above two issues.
Opinion on Issues Nos. III and IV.
' I am in complete consonance with the findings of Justice Nisar Hussain Khan on the aforesaid two issues.
Summary of the Opinion.
' In view of my deliberations above, I summarize my opinion as under: I. After the insertion of Section 33-E in the Ordinance vide Ordinance No, CXXXIII of 2002, the worthy Accountability Court while convicting the petitioners could not sentence the petitioners to undergo period of imprisonment in default of payment of fine in addition to the substantive term which could only be up to 14 years of rigorous imprisonment. II The provisions of Section 386 of Cr.P.C. Do not apply to the petitioners in view of Section 33-E of the National Accountability Bureau Ordinance, 1999 and the recovery of fine from the petitioners could be realized as arrears of land revenue under West Pakistan Land Revenue Act, 1967.
III. The notices issued by the Accountability Court were beyond the mandate vested in the Accountability Court under the National Accountability Bureau Ordinance, 1999.
IV. The competent forum to proceed against the petitioners for recovery of fine was the relevant Collector under the enabling provisions of West Pakistan Land Revenue Act, 1967.
Conclusion ' With utmost respect and with all the humanity at my command, it is, thus my opinion that I am in consonance with the findings of my brother Judge Mr. Justice Nisar Hussain Khan on Issues Nos. I, III and IV. However, as far as Issue No, II is concerned, I have my sincerest reservation regarding the same, as the appropriate forum for recovery of fine, would not be the Accountability Court but the worthy Collector having jurisdiction to recover the fine from each of the petitioners under the enabling provisions of West Pakistan Land Revenue Act, 1967.
' My opinion as a Referee Judge in the three Writ Petitions be placed before the worthy Division Bench of Hon'ble Mr. Justice Nisar Hussain Khan and Hon'ble Justice Ms. Musarrat Hilali, to pass the final decision.
Sd.
Yahya Afridi, J ' Pursuant to the majority view, all the three petitions are dismissed.
Sd.
Nisar Hussain Khan, J Sd.
Mussarat Hilali, J THE END revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.