ANWAR-UL-HAQ vs NATIONAL ACCOUNTABILITY BUREAU

' ABDUL HAMEED DOGAR, C.J.---This petition for leave to appeal is directed against judgment dated 3-6-2008 passed by the learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby, Writ Petition No,892 of 2007 filed by petitioner for suspension of sentence awarded in Reference No,2 of 2005 by the Accountability Court No,1 of Rawalpindi was dismissed.

2. Brief facts of the case are that the petitioners formed a partnership to develop a Hosing Scheme in the year 2002 and finally established a registered company under the name and style of East West Developers (Pvt.) Limited, hereinafter referred to as "the company". The company launched a Housing Scheme with the name of "Askaria Town", in Zone V of Islamabad and applied for obtaining NOC from Capital Development Authority, hereinafter referred to as "CDA" and also applied for NOC from Securities and Exchange Commission of Pakistan. The company also applied for registration of Trade Mark, prior to formal launching of the Housing Scheme, namely, Askaria Town. The Housing Society was launched on April, 18, 2004 and had to be completed by December, 2005. The company received huge amount from the members toward the allotment of plots. On 10th October, 2004, the petitioners were arrested, the office of the company was raided, entire record was taken into possession and interim reference was filed before the Accountability Court No,1, Rawalpindi on January, 7, 2005. Thereafter, two supplementary references were filed on 8th July, and 24th October, 2005. The Accountability Court framed .Charge on 23rd November, 2005, to which the petitioner pleaded not guilty and claimed trial. The petitioner's statement was recorded under section 342, Cr.P.C. Wherein he denied all the allegations. After examining 21 witnesses, the Accountability Court convicted all the accused under section 10(a) of the National Accountability Ordinance, 1999 and sentenced the petitioner to undergo 10 years' R.I. However, the benefit of section 382-B, Cr.,P.C. Was extended to him. The assets of the petitioner in the name of the company were ordered to stand forfeited in favour of the government and also to suffer the consequence of section 15 of the Ordinance ibid.

3. Against which petitioner filed appeal before the learned Lahore High Court, Rawalpindi Bench.

During the pendency of appeal, petitioner filed writ petition before the Lahore High Court, Rawalpindi Bench for the suspension of sentence under section 426, Cr.e.C. And for status-quo order regarding the assets of the petitioner. The Division Bench of the Lahore High Court, Rawalpindi Bench dismissed the same vide impugned order dated 3-6-2008, hence this petition.

4. Learned counsel for the petitioner argued that the Askaria Town is not a prohibited name and there is no prohibition in law or in any rule of any concerned department that such a name could not be used for a Housing Scheme. He further argued that the learned High Court has failed to appreciate the pleas raised by the petitioner. According to him, one of the co-accused had been released on bail, therefore, the petitioner is entitled for bail on the principle of consistency. He further states that the petitioner was arrested on 10th October, 2004 and since then he is behind the bars and if the remissions awarded from time to time were calculated he had already undergone major portion of his sentence. He further stated that if the sentence of the petitioner is suspended, it will have no effect on the case, as if the appeal of the petitioner will be dismissed by the High Court, then in view of the provisions of section 426(3), Cr.P.C. The period for which his sentence remained suspended, would stand excluded from his sentence.

5. On the other hand, learned counsel DPG, NAB stated that petitioner has been convicted by the Accountability Court on cogent, overwhelming and incriminating evidence as such cannot be presumed as innocent and he is not entitled for extraordinary relief of suspension of sentence.

6. We have heard the learned counsel for the parties and have perused the record minutely.

Admittedly, the petitioner was arrested on 10th October, 2004 and since then he is in jail. He has been awarded the benefit of section 382-B, Cr.P.C. And after counting the remissions towards his sentence, he has already undergone major portion of his sentence. It is well-settled principle that when the appeal against the conviction is pending for a long period without any fault of the convict, thus his sentence has to be suspended. In this regard reference can be made to the cases of (i) Adnan A. Khawaja v. State 2008 SCM R 1439, (ii) Makhdoom Javed Hashmi v. State 2008 SCM R 165 and Muhammad Khan v. State 2008 SCM R 1331. In the case of Adnan A. Khawaja (supra), it has been held by this court that where a convict had served out almost half of the sentence, his remaining sentence could be suspended depending on the particular facts and circumstances of the case. In the case of Makhdoom Javed Hashmi (supra), it has been held that a convict who had already undergone almost half of his sentence may seek suspension of sentence in the interest of justice keeping in view the facts and circumstances of a particular case and if ultimately the appeal of the petitioner is dismissed by the Appellate Court the provisions of subsection (3) of section 426, Cr.P.C. Would come in operation and the period of suspension of sentence shall stand excluded and he would have to undergo the sentence awarded to him by the Court.

7. For the foregoing reasons, we are of the opinion, that a case for review of judgment has been made out, thus the petition is converted into appeal and allowed. The order, dated 3-6-2008 passed by the Division Bench of Lahore High Court, Rawalpindi Bench in Writ Petition No,892 of 2007 is set aside. The sentence of the petitioner awarded in Reference No,2 of 2005, is suspended. He shall be released forthwith, if not required in any other case.

' These are the reasons of our short order of even date.