MUHAMMAD IQBAL KALHORO, J.---Petitioner No.2, Iqbal Ahmed Turabi for having accumulated assets beyond his known source of income while working in Banking Section of Finance Division, Pakistan State Oil from March 1987 to July 1998 was booked along with his wife, petitioner No.1, and other dependents in NAB Reference No.39/2001. And after a full-fledged trial therein they were convicted vide judgment dated 31.05.2002 in the terms whereby petitioner No.2, lqbal Ahmed Turabi was sentenced to suffer R.I. for 10 years, whereas, his wife petitioner No.1, Najma Iqbal was sentenced to suffer R.I. for 5 years. They both were further sentenced to pay fine of Rs.95 million each and in default thereof to suffer R.I. for 3 years' more. Besides. their numerous movable and immovable properties (mentioned at page Nos.31 and 44 of the judgment) were ordered to be confiscated in favour of Government of Pakistan. Petitioners' Appeal No.46/2002 filed against the same was dismissed by this court vide judgment dated 29.08.2003 reducing however amount of fine payable by each petitioner to Rs.25 million. The honourable Supreme Court also did not find any merit in the case of petitioners and dismissed Criminal Petition No.379/2003 filed by them against aforesaid judgment of this court on 15.07.2004, however, reduced sentence of petitioner No.1 from 5 years to 3 years. Petitioners' review petition against the said judgment met the same fate on 03.05.2006. The petitioners in lieu of payment of fine opted to undergo imprisonment of 03 years as ordered. After which petitioner No.1, Najma Iqbal was released on 08.07.2009 and petitioner No.2 Iqbal Ahmed Turabi on 02.05.2008. Thereafter on 23.01.2013 respondent No.1/NAB served a notice upon the petitioners requiring them to pay fine and confiscated movable and immovable properties viz. Nisan Car, Flat No.M-4, Chapel Resort, Shop No.10, Chapel Resort, House No.34/II, Phase-IV, DHA, Officers Nos.2 and 3 on Plot No.10-C, 8th Commercial lane Zamzama DHA, and office No.M-4, Falaknaz Centre, Karachi, etc. Being aggrieved by such notices, the petitioners have filed this petition.
2. The case of petitioners is that since they have served the entire term of sentence plus additional sentence in lieu of payment of fine, they are not liable to pay any amount or be dispossessed from only house in their possession or other properties. The notices requiring them to pay fine and to hand over properties amount to double jeopardy which is against scheme of Article 13 of Constitution of Islamic Republic of Pakistan, section 403, Cr.P.C. and provisions of General Clauses Act. That there is no provision in N.A.O., 1999 empowering NAB officials to issue such notices to the petitioners. In the backdrop of above facts and grounds, the petitioners have sought following relief(s):- "a) To declare that the impugned Notices at annexures G-1 to G-4 are unlawful and void having been issued without any lawful authority. b) To declare that the Petitioners be treated in accordance with law and they may not be deprived of the only residential property/family house/shelter as guaranteed under Article 9 of the Constitution of Pakistan. c) To declare that since the Petitioners have already served the sentence of imprisonment of 10 years and three years and also the R.I for three years due to non-payment of fine hence, the residential house # 34/2, N Street, Phase IV, DHA, Karachi and Flat # M4, Mezzanine Floor, Chappel Resort, Clifton Block 1, Karachi and Shop No.10, Chappel resort, Clifton Block 1, Karachi cannot be confiscated to recover the fine for which the Petitioners have already undergone the imprisonment.
Hence the impugned notices are in violation of Article 12 therefore liable to be struck down. d) To direct the Respondents 1 and 2 not to harass the Respondents (sic), since Petitioners have served the sentence as upheld by the Hon'ble Supreme Court of Pakistan. e) In view of serving of sentence, direct the Respondent No.3 to release the confiscated properties. f) To grant costs of the Petition under section 35-A, C.P.C. g) To grant such or any other relief as deem proper or fit in or about the circumstances of the case."
3. Learned counsel for petitioners in his arguments reiterated above grounds that NAB has no authority under the law to issue impugned notices to the petitioners; that petitioners have already served entire sentence plus additional sentence in place of payment of fine as such they are not liable to pay fine; that requiring petitioners to pay fine amount or hand over the properties would amount to double jeopardy which is against Article 13 of the Constitution, Article 26 of the General Clauses Act, and section 403, Cr.P.C.; that NAB is trying to dispossess the petitioners from House No.34/I, Phase-IV, DHA, Karachi, which is only accommodation in possession of the petitioners for residence.
4. Messrs Aamir Raza Naqvi and. S.M. Iqbal advocate, who were appointed as amicus curiae vide order dated 14.12.2018, have referred to following case law to assist the court on the points involved. ? PLD 2013 Lahore 686, ? YLR 2015 Quetta 1596, ? PLD 2016 Peshawar 298, ? PLD 2016 Sindh 105, ? 2016 SCMR 1827, ? 2013 PCr.LJ 1089, ? 2009 PCr.LJ 341, ? 1976 PCr.LJ 116, ? 2015 MLD Balochistan 460; and, ? PLD 2012 Balochistan 164
5. On the other hand, learned Special Prosecutor, NAB has relied upon the case laws reported in PLD 2008 Karachi 38, PLD 2012 Balochistan 104 and 2011 PCr.LJ 79 in support of his arguments.
6. Heard and perused the record including the case law relied upon at bar by learned counsel. The first question which needs to be decided here is that whether a convict who undergoes a term of sentence in lieu of payment of fine would be absolved of his liability to pay fine on such a ground. It seems that this is not the first time such question has come before the court for a decision. In the earlier pronouncements, some of which were referred to by learned Amicus Curiae, different High Courts of this country have decided this issue and have held that having undergone a sentence in default of fine by a convict would not discharge him of liability to pay fine and under no circumstances such liability would vanish. Even on death of the convict, the payment of fine could be levied from his legal heirs. For ease of reference, we are quoting some of such pronouncements here. In the case of Faiz Muhammad Jaffer and others v. The State through NAB, Quetta and others (PLD 2012 Balochistan 164) learned Balochistan High Court in Para No.18 of the judgment has held as under:- "18. We are in agreement with Mr. Muhammad Aslam Chishti, learned counsel for appellant Sikandar that criminal liability ends with the death of convict, but the civil liability of the accused/offender is still there and the death of offender regarding the payment of fine, does not operate as a discharge or satisfaction of the order for payment of fine. In this behalf, we are fortified by the dictum laid down in a case of "Muhammad Yousaf v. Syed Ghayyur Hussain Shah"
1993 SCM R 1185."
In the case of Ali Muhammad Baloch and others v. The State through NAB Authorities and others (2013 PCr.LJ 1089) learned Balochistan High Court in has held as under:- "8(sic.) So far as the question, regarding undergoing the sentence of imprisonment in lieu of default in payment of fine amount is concerned, we are of the opinion that undergoing imprisonment, award in default of payment of fine, does not operate as a discharge or satisfaction of the order of 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."
In the case of Allah Dina and another v. The State and another (2015 M LD 460) and in the case of Abdul Hafeez Luni v. The State through NAB (2015 YLR 1596) learned Balochistan High Court has held as under:- "The referred pronouncement of the Hon'ble Apex Court was also relied by this court in Haji Ghousuddin's case supra. The bare perusal of section 386, Cr.P.C. and section 70, P.P.C. clearly manifests that the amount imposed in lieu of fine can be recovered as arrear of land revenue, while the provision of section 33-EE, N.A.O. is analogous to referred provisions of Cr.P.C. and P.P.C.
The law of recovery of fine not only in NAB cases but in any other law for the time being enforced, where the quantum of sentence also entails the levy of fine and the accused, who has been convicted for any term of imprisonment followed by payment of fine, though served out the imprisonment in default of payment of fine, all he/she cannot be absolved from payment of fine because the imprisonment undergone in default is to be treated as a reasonable punishment for non-payment of fine, therefore, the impugned order passed by the Accountability Court-I, Quetta is unexceptional and does not call for any interference by this Court."
In the case of Abdul Jabbar v. The Chairman NAB through Director General National Accountability Bureau and 3 others (PLD 2016 Peshawar 298) learned Peshawar High Court in Para No.20 of the judgment has held as under:- "In view of the principle enunciated hereinabove, 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 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 petitioner is repelled."
7. We have noted that learned High Courts in support of formulating such view have taken guidance mainly from the case of Ahmad Ali Siddiqui v. Sargodha Central Cooperative Bank Limited and another (1989 SCM R 824), wherein the honourable Supreme Court while referring to the case of Siddappa v. State of Mysore (AIR 1957 Mysore 52) has held as under:- "It is settled that where an offender having the means of paying a fine chooses to undergo imprisonment rather than to pay the fine, it is a sufficient special reason which will enable the Court, in its discretion, to order that the fine may be levied, notwithstanding that the offender has served the full term of imprisonment ordered for default of payment of fine. (See statement of Objects and Reasons, 1921). It was observed in Siddappa v. State of Mysore AIR 1957 Mysore 52 that it is wrong to think that serving the full term of imprisonment fixed for default in payment of fine should not be taken as a discharge of liability but only as a reasonable punishment for non- payment of fine."
8. We for the sake of our guidance have perused the case law reported as AIR 1957 Mysore 52, his lordship Mr. Justice Padmanabhiah in paragraph 7 of his order has observed as follow.
"It appears to me that the policy underlying this section is that generally an offender ought not to be required both to pay the fine and serve the sentence in default. The requirement under the proviso that special reasons should be given in cases where a warrant is issued for recovery of fine when the full default sentence is undergone goes to indicate that the Legislature must have felt that it is undesirable and unfair to realize the fine and that the same should not be levied when once the imprisonment imposed in default of payment of fine has been served.
But the proviso enables a warrant to be issued for recovery of fine if the whole default sentence has been served and if the Court considers that there are special reasons for issuing the warrant. Thus it is seen that this proviso negatives the contentions that under no circumstance can a warrant for recovery of fine be issued when the default sentence is fully served. What is made obligatory when a Magistrate issues a warrant for the recovery of fine under these circumstances is that he should have special reasons for issuing the warrant and that he should record them."
The aforesaid pronouncements that are relevant to the point in hand leave no room for undertaking any further exercise to elucidate that a convict having served full term of sentence ordered for default of payment of fine would not be absolved of his liability to pay fine and his said imprisonment would be considered a reasonable punishment for non- payment of fine.
9. However, section 386, Cr.P.C., which is applicable in NAB cases in terms of section 17 of N.A.O., 1999 stipulates that the court could take any of following actions or both for recovery of fine amount from an offender, that is to say issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender: or issue a warrant to the District Office (Revenue) authorizing him to realize the amount by execution according to civil process against movable or immovable property, or both, of the defaulter. But if the sentence directs that in default of payment of fine the offender shall be imprisoned, and if such offender has undergone whole of such imprisonment in default, no court shall issue such warrant. Therefore, before proceeding to record any final conclusion on this issue against the petitioners, we in the light of dictum laid down by the Honourable Supreme Court in the case of Ahmad Ali Siddiqui (supra), which is to the effect 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 which will enable the Court, in its discretion, to order that the fine may be levied, notwithstanding that the offender has served the full term of imprisonment ordered for default of payment of fine" have examined the case of the petitioners from this angle and have tried to find out if there are reasons to justify levy of fine in spite of them having served entire default sentence. This has led us to discover that the petitioners had sufficient means in shape of movable and immovable properties, as is evident from Pages 31 and 44 of judgment of the trial court, to satisfy liability of fine by disposing them of rather than serving fixed sentence in lieu of it. They chose however, otherwise, and now through this petition have laid a claim that they are not liable to pay fine for having already undergone sentence for it.
Since such 'contention is manifestly against the pronouncement made by the Honorable Supreme Court in the case of Ahmad Ali Siddiqui (supra), we find it legally unsustainable.
10. Further, it is worth noting that imposition of fine as a punishment to an offender in addition to punishments through imprisonment and confiscation of assets disproportionate to his known means of income is provided under section 10, N.A.O., 1999. And under section 11, N.A.O., 1999, it is required that the amount of fine shall in no case be less than the gain derived by the accused or any relative or associate by commission of the offence. In neither of above two provisions of law an additional term of sentence beyond substantial is provided in lieu of fine. Which would essentially mean there is no legal base for punishing an offender for an extra term of sentence for fine firstly and secondly under no circumstances that would mainly include undergoing sentence for default of fine by an offender or his death would discharge his liability for fine. The legislature by not providing any additional term of sentence for fine in clear terms has conveyed its patent interest in recovery of looted amount than consigning the offender to a particular jail term, which for obvious reason is not likely to bring any fruit to society other than creating some form of deterrence for potential offenders. Such interest translating into object and necessity has been adequately manifested in first 3 paragraph of preamble of N.A.O., 1999 that for a ready reference are reproduced in extenso herein below.
"WHEREAS it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, [misuse or abuse] of power [or authority], misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto; AND WHEREAS there is an emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks, Financial Institutions, [Governmental agencies] and other agencies; AND WHEREAS there is a 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, corrupt practices and misuse of power or authority; ............. ............. ............. ............. ............. .............
After a reading of these relevant clauses of preamble in conjunction with sections 10 and 11 of N.A.O., 1999 coupled with dictum laid down in the case of Ahmad Ali Siddiqui (supra), which stands fortified by the fact that petitioners had several properties to pay fine rather than opting to undergo sentence for it, we are left with no doubt that the fine imposed on the petitioners cannot be discharged and they are liable to pay the same despite having served imprisonment for it.
11. Another point which learned defense counsel raised in his arguments was that NAB is not competent to issue impugned notices and since procedure for realizing amount of fine and to confiscate/forfeit, etc. a property is vaguely provided in N.A.O., 1999, the same is un implementable and cannot be enforced. We however do not feel persuaded by such argument, section 33-E of N.A.O., 1999 in specific terms lays down that "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". The procedure for recovering arrears of land revenue is provided in section 80 of the Land Revenue Act, 1967 which we would like to reproduce herein under for convenience.
Process for recovery of arrears:---Subject to the other provisions of this Act, an arrear of land- revenue may be recovered by any one or more of the following processes, namely:-
(a) by service of a notice of demand on the defaulter under section 81;
(b) by arrest and detention of his person under section 82;
(c) by distress and sale of his movable property and uncut or Ungathered crops under section 83;
(d) by transfer, under section 84, of the holding in respect of which the arrear is due;
(e) by attachment, under section 85, of the holding in respect of which the arrear is due:
(f) by annulment, under section 86, of the assessment of that holding;
(g) by sale of that holding under section 88;
(h) by proceeding against other immovable property of the defaulter under section 90.
The above procedure which is extensive in nature would be applicable for recovery of fine from an offender imposed by Accountability Court. It is to be noted however that this process in terms of section 81 of ibid Act has to be initiated by a Revenue Officer by issuing a notice of demand after a day on which an arrear of land revenue accrues. Thereafter, the whole mechanism starting from arrest and dentation of defaulter under section 82, if arrears are unpaid, to proceedings against his movable and immovable properties under section 90 of the said Act for recovery of arrears would follow.
12. Further, in this context section 12 of N.A.O., 1999 appears to be relevant which provides for an exhaustive procedure for freezing of property of an accused facing trial under the said Ordinance.
This provision of law basically spells out power of the Court to freeze property and states inter alia that the Chairman NAB or the Court trying a person for any offence under this Ordinance, may, at any time, if there appear reasonable grounds for believing that the accused has committed such an offence, order freezing of his property, movable or immovable, or part thereof, whether in his possession or in the possession of any relative, associate or person on his behalf. If the property ordered to be frozen is a debt or other movable property, the freezing may be made (i) by seizure; or (ii) by appointment of receiver; or (iii) by prohibiting the delivery of such property to the accused or to anyone on his behalf; or (iv) by all or any of such or other methods as the Court or the Chairman NAB as the case may be, deem fit. If the property ordered to be frozen is immovable, the freezing shall, in the case of land paying revenue, be made through the Collector of the district in which the land is situated, and in all other cases (i) by taking possession; or (ii) by appointment of receiver; or (iii) by prohibiting the payment of rent or delivery of property to the accused or to any other person on his behalf; or (iv) by all or any of such methods as the Chairman NAB or the Court may deem fit. In our humble view aforesaid mechanism prescribing an unambiguous procedure to freeze property of an offender during the trial is relevant and would be followed as well in the event of NAB Court ordering forfeiture of assets of an offender through a final judgment.
13.There is another aspect of the case, which also needs to be urged here. The conviction and sentence of the petitioners coupled with fine and forfeiture of their properties has been maintained up to the Honorable Supreme Court. By means of this petition they are essentially seeking reopening of chapter of their confiscated properties and fine on the grounds which as discussed above we have found unsustainable legally and for forming such a view have been taken guidance from the case of Muhammad Hashim Babar v. The State and another (2016 SCM R 1827) wherein the Honorable Supreme Court in almost similar facts and circumstances has held as under:- "2. On 17.02.2011 the petitioner moved an application in Accountability Reference No.9/1999 before the Accountability Court by taking the plea that as he has served out his sentence of imprisonment and also paid the fine, the property that was ordered to be confiscated may be ordered to be released and his title to the house be restored. Such a relief was sought inspite of the fact that the matter with regard to punishment had already attained finality in the earlier round of litigation. This application was dismissed by the Accountability court vide order dated 18.05.2011 on the ground that there is nothing in the decision in the earlier round to suggest that upon payment of fine, the order of confiscation of his share in the house would stand withdrawn. Aggrieved by such decision, the petitioner filed Criminal Revision No.644/2011 in the High Court, which too met the same fate vide order dated 15.12.2015. Hence this petition.
Learned counsel for the petitioner contended that once the petitioner served out his sentence and paid the fine, the property that was confiscated ought to have been released by the Accountability Court as confiscation would have been only justified had the petitioner failed to pay the fine.
When this Court put a question to the learned counsel for the petitioner that apart from the sentence of three years' RI, and the payment of fine, the petitioner was also visited with confiscation of his half share in a house then how can he seek release of the confiscated property to which he replied that in law an accused can be visited with fine or confiscation of his property but not with both. It is too late in the day to seek reversal of any punishment that was awarded to the petitioner in the earlier proceedings and maintained upto this Court. If at all there was any legal basis for such an argument, the same ought to have been agitated by the petitioner in the first round of litigation. Once the matter had attained finality and having failed to obtain decision for recall of the order of confiscation of the house in the proceedings that reached upto this Court, the matter came to rest forever. The petitioner thereafter cannot initiate another round of litigation to avoid a penalty which was awarded to hint in the earlier round. This would amount to seeking nullification of the decision of this Court. This Court in the case of Abdul Majid v. Abbas Hussain Shah (1995 SCM R 429) went to the extent in holding that where an attempt is made in another round of litigation to nullify the decision that had already attained finality then it amounts to committing contempt of the Court. It was held that not only the litigant is to be held in contempt but his counsel as well who represented him in such proceedings. Even the judge of the Civil Court who entertained such proceedings in the second round was held in contempt along with the litigant and his counsel. However, in this case we have chosen to exercise restraint."
14. We for what has been discussed above find this petition devoid of merits and dismiss it accordingly. National Accountability Bureau, however, is directed to follow procedure as discussed above for realizing fine from the petitioners and for taking possession of their confiscated properties strictly in accordance with law.