JUNAID ASAD KHAN Versus State
ORDER
SALAHUDDIN PANHWAR, J.--- Heard and perused the record.
2. At the outset learned counsel for appellants contends that appellants Junaid Asad Khan and Asad Abbas Khan were awarded R.I. for ten years' and R.I. for eight years respectively and to pay fine of Rs.54.306 million and in case of default thereof to undergo R.I. for a further period of two years each; such conviction was awarded on account that appellants failed to repay the financial facility advanced by Bank Islami Pakistan Limited; a suit bearing No.85/2012 was filed by the Bank and same was decreed on 28.10.2014 for Rs.39,996,649/- along with cost from the date of default. It is further contended that honourable apex Court in various decisions has decided the scope of wilful default. They have relied upon case of Syed Mushahid Shah (2017 SCMR 1218), Alamdar Hussain (PLD 2017 Lahore 479) and State v. Muhammad Asif Saigol (PLD 2016 SC 620) and further it is contended that execution application filed by the Bank is pending and property was mortgaged with the Bank, the appellants have not raised any objection with regard to auction of the mortgaged property that is more than the value of decretal amount however if Executing Court continues to proceed as per procedure provided under Order XXI, rule 66, C.P.C. they will not raise any objection nor will hamper those proceedings in any manner except by availing the remedy if any, in accordance with law; it is contended that hearing of appeal would take time therefore it would be in the interest of justice to suspend the operation of the impugned judgment and releasing the appellants on bail pending appeal.
3. Learned counsel for the Bank contends that the Bank would pursue the execution proceedings; their object is to recover the amount and not to cause any loss to the appellants hence they would be competent to match the price; that the value of the property is assessed that is Rs.55 million and they will submit such report before the Court.
4. Learned Special Prosecutor, NAB contends that this is a clear cut case of wilful default therefore conviction was rightly awarded by the trial Court; further, section 426, Cr.P.C. is not applicable to present case. He has relied upon case of Bank of Punjab v. M/s. AMZ Ventures Ltd. (2013 CLD 2033).
5. We have given careful consideration to the contentions raised by learned counsel for respective parties and the judgment referred to above as well case of Khan Asfandyar Wali reported in PLD 2001 SC 607. Admittedly appellant Junaid Asad Khan and Asad Abbas Khan were awarded R.I. for ten years' and R.I. for eight years respectively with regard to wilful default in respect of payment of loan. Such determination and consequent conviction have seriously been challenged in the pending appeal while insisting the same to be not in accordance with settled definition and criterion, as held by Apex Court. Without prejudice to legality of such contention since prima facie, the counsel for the bank has been fair enough that their main grievance was that of recovery of amount for which the Execution Application is pending. Further, the appellants have not challenged the judgment and decree passed by trial Court in Suit and it is also contended that they will not object with regard to execution application except to participate in auction proceedings as well shall follow the procedure in accordance with law. Accordingly, executing Court shall proceed and ensure that outstanding amount is recovered.
The position, being so, prima facie goes to suggest recovery of amount by the Bank. The consequence of willful default in existing position leave a room open to examine the plea raised by the counsel for the appellants which may bring its consequences upon legality of awarded conviction therefore, it would meet the ends of justice to suspend the conviction (release the appellants) pending determination of such question because it is by now settled that there is no compensation for a conviction which later is set aside. Needless to add that if at the end of the day the plea, raised tilts in favour of the prosecution, the appellants' conviction shall stand resumed from where it is parted. Keeping in view the principle of Criminal Administration of justice which always tilts in favour of accused even if there are two probabilities, one favouring to accused and one to prosecution. According, impugned judgment is suspended and appellants are admitted to bail subject to furnishing solvent surety in the sum of Rupees one million each with P.R. bonds in the like amount to the satisfaction of Nazir of this Court. This bail is conditional i.e., commitment of appellants not to delay or raise unnecessary objections in recovery process of decretal amount by Bank hence if appellants react otherwise i.e., raise unnecessary objections or delay the proceedings of execution, bail would be recalled on the application of the Bank, after hearing.
WA/J-13/Sindh Order accordingly.