IN THE HIGH COURT OF SINDH AT KARACHI
MR. JUSTICE SALAHUDDIN PANHWAR
Criminal Accountability Appeal: No.14 of 2013.
CMA: No. 7672 of 2013.
Appellant : Shaikh Iqbal Azam Farooqui
Through: Mr.Amir Raza Naqvi, Advocate.
Respondent : The State, through: M/s. Noor Muhammad Dayo, DPG and Zamir Hussain, Sr. Prosecutor, NAB.
Date of hearing: 30th January 2014.
SALAHUDDIN PANHWAR, J:- Through instant application, under Section 561-A Cr.P.C, read with Article 199 of the Constitution of Islamic Republic of Pakistan, the appellant seeks suspension of sentence and enlargement on bail in above Criminal Accountability Appeal, which impugns the judgment dated 24th December 2013 passed by Accountability Court No.IV, Sindh at Karachi whereby the appellant was convicted and sentenced to undergo R.I. for seven years and fine of Rs.5.187 million.
2. Precisely, relevant facts for disposal of the this application are that the petitioner was tried in Reference No.42 of 2007 [Re-The State vs. Shaikh Iqbal Azam Farooqui and others on the charge that appellant being Managing Director of M/s. Eurasia Manufactures, Importers and Exporters (Pvt.) Limited availed the financial facility (loan) of Rs.2.500 million, the same was sanctioned against the personal guarantee of directors and pledge of goods in favour of bank, subsequently, the existing limit was enhanced from 2.500 million to Rs.3.650 million; appellant and others failed to fulfill their obligations towards the repayment , thus bank filed a suit for recovery of loan, being Suit No.136 of 1992 before the Banking Tribunal No.III, Karachi, which was decreed. Thereafter, the NBP preferred execution application No.56 of 1993 on 06.06.1993, at that time Rs.5.187 million was due and payable by the petitioner’s company. consequently after full dressed trial the appellant was convicted while remaining accused persons being absconders remained on dormant file.
4. Since the instant application was insisted on merits as well as medical ground, therefore, by order dated 05.12.2013, the Secretary Health, Government of Sindh was directed to constitute the Medical Board for examination of the appellant, such board was constituted, pursuant to that the appellant was examined.
5. Learned counsel for the appellant has, inter -alia, contended that the appellant was not solely liable to re-pay the amount which was availed by the company; it is a matter of fact that financial loan was sanctioned against the goods, which were pledged in favour of the bank, therefore, bank was having option to auction the same and recover such amount. Tthough, this is a case of willful default but such point has not been properly adjudicated by the learned trial judge therefore, this court can legally intervene and rescue the appellant by suspending the sentence. It is further urged that the NAB Court was not having jurisdiction to try this offence in view of Asfandar Yar Wali case as willful default is not falling within such jurisdiction. The instant matter relates to the banking thus such hierarchy provides complete mechanism to try the defaulters and recover the amount. It is matter of record that National Bank of Pakistan (NBP) has availed the remedy by filing Civil Suit thereafter execution application, therefore, reference filed by the NAB is completely against law, and it negates the basic spirit of fair trial as provided under Article 10-A of the constitution. In support of his contention he has relied upon an un-reported judgment passed by this Court in Criminal Accountability Appeal No.07 of 2012.
6. Conversely, the Special Prosecutor NAB, while refuting the above contentions has argued that the case of willful default can be competently referred by the NAB authorities through a reference, therefore, adjudication by the Accountability Court is not Coram non judice. The instant conviction awarded to the appellant is not falling within short sentence; whereas on merits this court has very limited jurisdiction and cannot enter into deeper appreciation of evidence at this stage.
7. Before addressing the contentions raised by learned counsel for the parties, it would be pertinent to refer the scope of Section 426 Cr.P.C. as defined by the Hon’ble Supreme Court in the case of Muhammad Saleem v. State [PLD2006 SC 483] wherein it is held that:
7. There is no cavil to the proposition that appellate court in exercise of its power under section 426, Cr.P.C. .may in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under sections 497 and 426, Cr.P.C. the consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power under the above provisions in proper manner. The power of appellate court under section 426(1), Cr.P.C. is not limited and A the court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under section 497, Cr.P.0 and unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under section 426(1), Cr.P.C. with the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as the bail either under section 497 or 426(1), Cr.P.C, could be allowed only on the basis of tentative assessment of evidence.
From the above case law, it is very much clear that the provision of Section 426(1) of the Code cannot be pressed in the manner as one can insist for bail within meaning of the section 497 of the Code because grounds for such exercise under said two provisions are entirely different from each other.
8. Since learned counsel has taken plea that NAB Court had no jurisdiction to try the appellant as willful default is not falling within the ambit of NAB Ordinance 1999; and such moot question was also not decided by the NAB Court; in support of such proposition he referred the case of Khan Asfandyar Wali and others vs. Federation of Pakistan [PLD 2001 Supreme Court 607].
9. We have examined carefully the case of Khan Asfandar Yar Wali (supra) and it would be relevant to refer the relevant portion of the said judgment on this issue:-
211. In view of persistence of corruption and genuine emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to banks, financial institutions, government and other agencies and all measures having failed to recover the same through ordinary Courts of law, it became necessary to promulgate this extraordinary legislation in the extraordinary circumstances prevalent in the country. Had the Government agencies and the Revenue authorities performed their duties and legal obligations justly, fairly and in accordance with law and had there been proper investigation into alleged offences committed by important politicians, bureaucrats and the persons who were recipient of money from any unlawful sources given for unlawful considerations, there would have been no need to promulgate the impugned Ordinance. But when the matter discloses a clear nexus between crime/ corruption and powerful persons holding public offices which poses a serious threat to the economy as well as the very existence of the country, then to prevent erosion of the rule of law and to take steps for restoration of democracy in the country within the time frame laid down by this Court, it will have to be examined whether the mechanism involved for recovery of amounts from the wilful defaulters for reviving the economy is in conformity with the declared objectives of the Chief Executive. Applying the above principles, we are led to irresistible conclusion, after hearing the learned counsel for the petitioners at length, that there was a need for creation of an offence of ‘wilful default’ and mechanism for recovery of the same as is purported to have been done under Section 5(r) of the impugned Ordinance.
10. Plain reading of the above it appears that contention of the learned counsel are without force and the Hon’ble apex Court has categorically defined the criteria and principles thereby mechanism provided under Section 5(r) is validated.
11. Besides, it is not disputed that NBP filed suit against the appellant and other directors, such suit was decreed thereafter execution was preferred, hence plea regarding willful default, not decided by the trial Court, cannot be considered at this stage.It would be pertinent to mention that , in case of Sunrise Textile Mills, reported in 2007 SCMR 1569, it is observed that in first instance liability of a defaulter is to be determined by a civil or Banking Court; but in instant case it is patent that petitioner is judgment debtor. Moreover, we have examined the impugned judgment whereby detailed reasons have been assigned while awarding the conviction, hence we have not found any material illegality or irregularity, which can be considered for suspension of sentence in view of guidelines provided by Hon’ble apex Court as stated above.
12. Regarding plea of ailment, medical board was constituted wherein the appellant was examined and such report is placed on record. The relevant portion is as under:
Mr. Shaikh Iqbal Azam Farooqui, is a known diabetic, hypertension, peripheral vascular disease, Ischemic Heart Disease + L5 S1 Radiculopathy. His disturbing complaints are pain in leg radiating upwards more at night. He is on regular ant diabetic, Anti hypertension drugs. He has these complaints and been worked up for diabetes complication since 2011. He needs regular checkup and compliance to medication. All these symptoms and complication have to be managed via OPD and medical facilities at jail ward can take care for these complaints with proper drug therapy.
Bare perusal of above, it is manifest that though the appellant has ailment and claiming pain in leg but merely ailment is not sufficient to suspend a conviction and it is to be seen whether further detention of the accused in jail will be harmfull and hazardous to his health and he cannot be taken care of in jail premises through doctors available there but the medical report is not suggesting so therefore, this ground is not sustainable. Further, in case of Ghulam Raza v. khuda bux reported in 2005 SCMR 1904, it is held that:
“it is well settled principle of law that for releasing an accused on bail on medical ground, there must exists strong reasons to believe that despite advance medical technology and availability of medicine treatment was not possible at all having regard to the nature of illness. ,
14. With regard to the case of Agha Ishrat Ali [Criminal Accountability Appeal No.07/2012], relied by learned counsel for the appellant whereby the appellant was released on bail during pendency of the appeal; suffice to say that same pertains to the conviction of five years, therefore, bail was granted on the ground of short sentence but here this is a fresh case whereby the appellant has been awarded seven years, hence statutory provision to this regard is not available to the appellant at this stage, thus, the instant case is on entirely different footings.
In view of above, instant criminal miscellaneous application is devoid of merits; consequently same is dismissed.
JUDGE
JUDGE
Karachi
Dated:____________
Sajid