Abdul Jabbar etc question of double jeopardy sentence in default .2 embezzlement of money amounting

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Text of Abdul Jabbar etc question of double jeopardy sentence in default .2 embezzlement of money amounting

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT

W.P No. 1292-P .of 2013

JUDGMENT

Date of hearing: 06.02.2014

Petitioner: Abdul Jabbar

Respondent : Chairman NAB

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NISAR HUSSAIN KHAN, J:- By this single

judgment, we propose to decide these three petitions

bearing No. 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

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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

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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 Section 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

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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-

III, 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

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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.

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6. Learned counsels 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 PPC. 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

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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

pettioners 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 PPC? And

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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 there-from 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

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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. Vs 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 co