' SARMAD JALAL OSMANY, J.-All the above listed applications seek suspension of the sentences awarded to the appellants pending final decision of the appeals. As common questions of fact and law are involved. We intend to dispose them of through this order.
1. In support of these applications Mr. Muhammad Ashraf Kazi and Mr. M.L. Shahani have only agitated that since the major portion of the sentences awarded to the appellants have been served out by all of them, therefore, on this ground alone they are entitled to suspension of the balance portion. Mr. Kazi has further submitted that the appellant Ch. Muhammad Sharif is a chronic heart patient in support of which he has placed on record his medical history. Hence as the main appeal would take a long time to decide, therefore, the sentence be suspended on this ground also and the said appellant be released. On bail. In support of these submissions learned counsel have relied upon an unreported judgment of the Honourable Supreme Court in Criminal Petition No,281 of 2001 entitled Adnan A. Khawaja v. The State wherein it has been held that as the appellant had undergone the major portion of his sentence he would be entitled to the concession of bail. Learned counsels have also relied upon the case of Zulfiqar All v. The State (1994 SCM R 548) which was cited with approval by their Lordships in Adnan Khawaja's case. They have cited decisions of the learned Lahore High Court wherein in similar circumstances the sentences of the appellants were suspended viz. Cr. Accountability Appeal No,1784 of 2001 entitled M. Riaz Fatiana v.
The State and Criminal Accountability Appeal No,1136 of 2001 entitled M. Riaz Fatiana v. The State as well as Criminal Accountability Appeal No,752 of 2001 entitled Sher All v. The State.
2. In the case of Criminal Accourtability Appeal No,3 of 2001 Mr. Muhammad Ashraf Kazi has submitted that the appellant, Khan Muhammad Mahar was convicted to suffer R.I. For ten years and to pay fine of Rs, 140,000,000. In default of which he was to undergo R.I. For a further period of two years and six months in which event his total sentence comes to twelve years and six months.
Per the Jail Roll of the appellant which has been placed on record by the Superintendent, Central Prison, Karachi, dated 16-7-2002 the actual sentence served out by the appellant is 2 years, 5 months and 3 days whereas he has received remissions totaling 7 years, 3 months and 12 days. Per learned counsel this means that todate he has served out 9 years, 8 months and 15 days. Hence per the Jail Roll balances of 2 years, 6 months and 0 days are left including the sentence of two years and six months in lieu of fine. Consequently oer learned counsel as the total sentence served out is more than 50% of the sentence imposed upon the appellant, therefore, he is entitled to grant of bail as per the dictum laid down by the Honourable Supreme Court in the case of Adnan A.
Khawaja v. The State (supra).
3. As regards Criminal Accountability Appeal No,20 of 2000 Mr. Muhammad Ashraf Kazi has submitted that the appellant Ch. Muhammad Sharif was arrested on 26-11-2000 and convicted on 12-12-2000 and sentenced to fourteen years' R.I. Plus a fine of Rs,100,000,000. In default thereof additional seven years' R.I. Was imposed thus making a total of 21 years. Learned counsel has submitted that the sentence imposed in lieu of fine can only be one-fourth of the main sentence per section 65 of the Pakistan Penal Code and hence in the present case this could only be three years and six months. Accordingly the sentence imposed upon the appellant can only be 14 years plus three years and six months (in lieu of fine) thus making a total of seventeen years and six months. Per the Jail Roll placed on record by the Superintendent, Central Prison, Karachi, dated 14- 5-2002 the appellant had served out two years six months and twenty days and earned remissions of seven years four months and sixteen days. In this event the unexpired portion of his sentence was eleven years and sixteen days. Per learned counsel this is incorrect since the sentence served plus remissions earned is more than ten years hence only a balance of seven years remains if the total sentence of seventeen years and six months is taken into account. Consequently as the appellant had served the major portion of his sentence learned counsel prayed that the balance be remitted in accordance with the dictum laid down by the Honourable Supreme Court in Adnan A. Khawaja v. The State (supra). Moreso, for the reason as the appellant is a very sick person per his medical history which has been placed on record.
4. In Criminal Accountability Appeal No,19 of 2000 Mr. M.L. Shahani has similarly submitted that the appellants Muhammad Hanif and Mukhtar Ahmed were sentenced to undergo R.I. For fourteen years and to pay a fine of Rs,10,000,000 each in default whereof they were to suffer R.I. For five more years being a total of nineteen years. As per his Jail Roll appellant Muhammad Hanif had served out two years, two months and six days and concurrently earned remissions of five years, eleven months and nineteen days thus totaling eight years one month and twenty days in which event a balance of ten years, ten months and five days remained. In the case of appellant Mukhtar Ahmad his Jail Roll shows that he had served out two years, two months and three days earning remissions of four years seven months and twelve days which in sum comes to six years nine months and fifteen days leaving a balance of twelve years two months and fifteen days. Learned counsel has further submitted that the charge against both the appellants is only that of abatement but conviction is based on acquisition of property beyond known sources of income under section 10 of the NAB Ordinance. Per learned counsel this is incorrect because the punishment as regards appellants per the charge can only be covered under Entry No,2 to the Schedule of the Ordinance viz. Criminal conspiracy for which the punishment is only ten years and not fourteen years. Hence per the learned counsel as both the appellants have served out a period of more than seven years which is more than half of their sentence viz. If these are calculated at fifteen years each they are entitled to bail based upon the rule laid down in Adnan Khawaja's case (supra).
5. On the other hand Mr. Abdul Ghafoor Khan, Special Prosecutor for NAB appearing in Criminal Accountability Appeal No,20 of 2000 has submitted that the appellant Ch. Muhammad Sharif has been convicted under section 10 of the NAB Ordinance which relates to the offences of corruption and corrupt practices and he has amassed huge untold wealth as a result thereof. This per 'learned counsel is a crime against society and hence merely on the basis that the major portion of his sentence has been served out by the appellant, he is not entitled to suspension of the remaining portion. Learned counsel further submitted that per section 426(1-a) (c) of the Criminal Procedure Code which would be applicable to the facts of the case a period of 2 years has not elapsed from the date of the appellant's conviction, therefore, he would not be entitled to suspension of his sentence at all. For this proposition learned counsel relied upon Yousuf v. The State 1991 SCM R 958 and Muhammad Akram v. The State 1994 SCM R 277.
6. Mr. S.M. Zaki, learned Dy. A.-G. Appearing for NAB in Criminal Accountability Appeals Nos.19 of 2000 and 3 of 2001 has also opposed the applications for suspension of sentence on the ground that the appellants had acquired untold wealth in their capacity as public servants. He has further submitted that if the appellants are released on bail merely on the ground that they had served out the major portion of their sentence this would be against public policy as they had been convicted for the crimes of corruption and corrupt practices as defined in section 10 of the NAB Ordinance. This would defeat the very purpose of the Ordinance which was designed to prevent corruption in Pakistan. Learned counsel has distinguished the case of Adnan A. Khawaja (supra) on the basis that therein the sentence imposed was a short viz. Only two years.
7. We have heard all the learned counsel as. Well as the learned Dy.A.-G. It would be seen that both the learned counsel for the appellants have only urged these applications on the ground that as the appellants had served out the major portion of their sentences, hence per the dictum laid down in Adnan A. Khawaja v. The State (supra) they should be released on bail upon suspension of the balance portion. In the instant case the facts were that the petitioner was convicted on 31-7-2001 and sentenced to two years' R.I. Alongwith a fine of Rs,2 lacs. It being further directed that if the fine were not paid within one month the same should be recovered from him in accordance with law.
The benefit of section 382-B was also awarded to him. The Honourable Supreme Court while relying upon the case of Zulfiqar Ali v. The State (supra) came to the conclusion that as, prima facie. The petitioner had served out the major portion of his sentence, he was entitled to the suspension of the same and consequently be released on bail. Similarly the facts in the case of Zulfiqar Ali v. The State (supra) were that the petitioner was sentenced on 20-9-1993 to two years' R.I. Alongwith fine of Rs,10,000 in default whereof he was to suffer further R.I. For a period of six months more. The Honourable Supreme Court came to the conclusion that considering the period of sentence awarded to the petitioner he deserved suspension of the same and consequently bail was granted.
8. In our opinion, the facts of the cases at hand are quite different from the facts of the foregoing cases decided by the Honourable Supreme Court. The distinction being in the period of sentence.
In the case of appellant Ghulam Muhammad Maher the period of sentence is twelve years and six months including period of default. In the case of Ch. Muhammad Sharif it is twenty-one years including period of default. Even if section 65 of the Pakistan Penal Code be taken into consideration the total period comes to seventeen years and six months. In the case of appellants Muhammad Hanif and Mukhtar Ahmed they were sentenced to twenty-one years including period of default. As regards Mr. M.L. Shahani's contention that their substantive sentence could only be ten years each as they were only charged with abetment vide Entry No,2 to the Schedule of the NAB Ordinance, we are afraid that this appears to be misconceived. We have gone through the charge which in no uncertain terms also mentions the offence of corruption etc. Which is covered under section 10 of the Ordinance. It is quite well-settled that the purpose of framing a charge is to inform the accused of the offence for which he faces trial. If this is achieved, it is futile to indulge in an exercise for picking out technical flaws in order to defeat this objective. In any event, as far as the present case is concerned, the charge is very much clear and conveys in no uncertain terms that these appellants were being tried for the offences of corruption and corrupt practices per section 10 of the NAB Ordinance. As observed above the Honourable Supreme Court's decision in both the Adnan A. Khawaja as well as Zulfiqar Ali cases was based on the well-established principle that where the sentence is a short one and there are no immediate hopes for the main appeal to be decided these are usually suspended. So also in appropriate cases where the balance period remaining to be served out by the appellant is a short one suspension can be considered on the ground that the main appeal would take some time to be, decided. In fact this was the reasoning behind which subsection (1)(a) of section 426 of Criminal Procedure Code was inserted vide Ordinance XII of 1972 which is no more on the Statute Book. As discussed above these are not the facts in the foregoing cases as the sentences are lengthy ones, even taking into consideration the periods already served out by the appellants plus the remissions earned. In this regard, with the utmost respect to the learned Judges of the Lahore High Court, we are unable to concur with their opinion in similar circumstances. Accordingly in our view no case has been made out for suspension of sentences based solely on the ground that the major portion thereof have been served out by the appellants. Consequently these applications are dismissed. Moreso, as we have already directed that the main appeals be listed immediately after summer vacations.