MUHAMMAD NAEEM KHAN vs THE STATE

' ALI NAWAZ CHOWHAN, J.--- This order shall dispose of Criminal Appeals Nos.1232 of 2003 and 1233 of 2003 being' nnected and having deep nexus inter se.

2. Both said appeals have arisen out of two separate judgments of Mr. Abdul Ghaffar Khan, Judge Accountability Court No,II, Lahore dated 28-6-2003, whereby Muhammad Naeem Khan, appellant was convicted under sections 409, 420, 468, 471, 109 and 411, P:P.C. Read with section 10 of NAB Ordinance, 1999 in both cases F.I.R. No,105 of 1995, ACE, Multan and F.I.R. No,106 of 1995 ACE, Multan.

In case F.I.R. No,105 of 1995 he was sentenced to undergo R.I. For 14 years with a fine of Rs,1,00,00,000 or in default to undergo R.I. For a period of another three years. The amount of fine was to be recovered as arrears of land revenue and in case F.I.R. No,106 of 1995 he was also sentenced to undergo R.I. For 14 years with a fine of Rs,20,00,000 or in default to undergo R.I. For a period of three years. This amount of fine was also ordered to be recovered as arrears of land revenue. The appellant was disqualified for seeking, or from being elected, chosen appointed or nominated as a Member or representative ofitny Public Office or any statutory or local authority of the Government of Pakistan under section 15 of the National Accountability Bureau Ordinance, 1999 in both these cases.

3. In the first case the allegation against the appellant was that he in collusion with other co- accused defrauded Government exchequer of an amount of Rs,4,00,95,000 through fictitious purchase of 1,00,000 bags of wheat, which in fact were never purchased. In the second case the allegation against the appellant is that he along with other accused defrauded Government of an amount of Rs,1,08,25,650 by showing' fictitious purchase of wheat worth this amount at Januwala, Purchase Centre, Bahawalpur, whereas the wheat was never actually purchased.

4. In this case the prosecution produced 16 witnesses in all. It may be mentioned that while the trial of his co-accused progressed, he absconded and his case was then separated from the case of his co-accused. However, when the appellant again faced trial five more witnesses about whom mention is made in paragraph 7 of the impugned judgments further appeared against him.

5. The learned counsel for the appellant in both the appeals has not argued the case on merits. At the very outset he stated that he is invoking the principle of equality with respect to the sentence awarded to his co-accused and in this connection has referred to the judgment given by A another learned Bench of this Court against co-accused of the appellant in Criminal Appeal No,1222 of 2001 dated 31-10-2002, wherein the co-accused of appellant namely Naseer-ud-Din and other faced trial and had been sentenced as follows:- ' Naseer-ud-Din Hamayun, Tariq, Abdullah and Mian Allah Bakhsh: ' Convicted under section 10 of National Accountability Bureau Ordinance, 1999 and sentenced to eight years' R.I. Each. Naseer-ud-Din Hamayoon was also sentenced to pay fine of Rs,20 million (two crore) and in default of payment of fine he was to undergo imprisonment for two years.

' Tariq Abdullah and Mian Allah Bakhsh ' Sentenced to pay a fine of Rs,50,00,000 (five millions) each and in default thereof to undergo one year's imprisonment each.

' Bashir Ahmad, Muhammad Laeeq-ul-Hassan, Mst. Robina Naseer and Mst. Aisha Javed: ' Convicted .Under section 10 of the National Accountability Bureau Ordinance, 1999 and sentenced to imprisonment for ,three years each and a fine of Rs,10,00,000 (one million) each. In case of default in payment of fine, the defaulting accused was to further undergo six months imprisonment.

' The case property recovered from Robina Naseer comprising golden ornaments. P.1 to P.28, currency, notes of Rs,1,94,000 P.29 to P.412 and 60 notes of US $ each valuing one hundred Dollar, P.413 to P.472 ordered to be confiscated in favor of the State subject to decision of appeal or revision, if any.

' The case property comprising the amounts deposited in the Banks belonging to the convicts- accused which had been seized was also ordered to be confiscated in favor of State and the remaining case property was ordered to be dealt with in accordance with law, subject to decision in appeal or revision, if any.

' However, in appeal, the sentences were reduced to three years each and fine was reduced to Rs,10,000 each and in default of payment of fine, they were to undergo six months imprisonment.

The benefit of section 382-B, Cr.P.C. Was also given to all of them.

6. When the proposal for the invocation of the principle of equality was put to the learned counsel appearing on behalf of NAB, the learned counsel referred to the provision of section 11 and submitted that the fine had to correspond to the ill-gotten gains made by the accused and cannot be reduced in a case of conviction. He, therefore, focused his objection only with respect to the extent of the quantum of fine.

7. We, therefore, asked the learned counsel for appellants whether he would like to argue the case on merits in view of the constraints of the provisions of section 11. His reply was that we may follow the provisions of section 11 on the aspect of fine.

8. We; therefore, in both the said cases reduce his sentence of imprisonment to three years' R.I.

While we are upholding the decision of the learned trial Court with regard to quantum of fine, we direct that in case of default he shall further undergo simple imprisonment for two years. The fine shall be recoverable as arrears of land revenue. The sentences awarded in both the cases shall run concurrently in view of section 397, Cr.P.C. The benefit of section 382-B, Cr.P.C. Shall also be extended to the appellant in both the cases. The appeals are disposed of accordingly.