The Supreme Court has declared that by undergoing a sentence of imprisonment in default of payment of fine a convict is not absolved of his liability to pay fine and the amount of fine can still be recovered from him despite undergoing the sentence of imprisonment in default of payment of fine. A three-member bench, headed by Chief Justice Asif Saeed Khan Khosa, on 2ndJuly, 2019 after hearing the arguments on National Accountability Bureau's (NAB's) appeals against the Balochistan High Court (BHC), had reserved the judgement, which was announced on Friday.
The judgment authored by Justice Khosa noted that a sentence of imprisonment in default of payment of fine is only a punishment for non-payment of fine and is not a substitute for the sentence of fine. It clarified that in the matter of recovery of fine in cases under the National Accountability Ordinance, 1999 the relevant provisions are those of section 33-E of the National Accountability Ordinance, 1999 and not those of section 70, PPC. Criminal Petition No. 27-Q of 2011 is dismissed.
The bench had heard the appeals and a petition pertaining to different references filed by the NAB against different persons. The trial court had convicted and sentenced the accused persons and passed an order regarding a term of imprisonment to be served by the convicts and a fine was also imposed. It was also ordered by the trial court that "the assets/properties of accused are forfeited as set off against the amount of fine, however, in case of non-recovery/non-payment of the amount/fine accused shall undergo further term of two (2) years R.I." The said convictions and sentences of the convicts were subsequently upheld by the High Court and even by the Supreme Court with slight reduction in the sentence of imprisonment.
Subsequently an issue arose as to whether after the convicts had undergone the sentence of imprisonment in default of payment of fine the National Accountability Bureau could proceed with forfeiture of the relevant assets and properties as a set-off for fine or not and it was maintained by the convicts that after serving out the sentence of imprisonment in default of payment of fine neither the amount of fine could be recovered nor could be the assets or properties forfeited.
The BHC had held through the impugned judgments passed by it that the stand of the convicts was correct and after serving out the sentence of imprisonment in default of payment of fine the amount of fine could not be recovered nor could the assets and properties be forfeited.
The judgment maintained that in the Ahmad Ali Siddiqui vs Sargodha Central Cooperative Bank Limited (1989 SCMR 824) case the Supreme Court held that a sentence of imprisonment in default of payment of fine is not a substitute for payment of fine but as a matter of fact, the said sentence of imprisonment is a punishment for non-payment of fine.
It had also been made clear by this court in that case that even if such sentence of imprisonment in default of payment of fine is undergone by a convict the amount of fine is still to be recovered from him. The judgment said, "In view of that case we are not in doubt that the High Court had misdirected itself upon the law as declared by the Supreme Court in the Ahmad Ali Siddiqui case."
The court noted that in some of the present cases an issue had also arisen as to whether by virtue of the provisions of section 70, PPC the amount of fine imposed upon a convict can be recovered after a period of six years after passage of the sentence or fine or not. "We note that in section 33-E of the National Accountability Ordinance, 1999 it has categorically been provided that a fine imposed upon a convict is to be recovered by way of arrears of land revenue and the said provision is not controlled by or subject to the provisions of section 70, PPC."
It appears that in the relevant present cases, the High Court had again misdirected itself upon the law and had relied upon the provisions of section 70, PPC, without appreciating that the provisions of the National Accountability Ordinance, 1999 were to prevail in the matter as that was the special law catering for the situation at hand.
The court by allowing NAB's Criminal Appeals No. 160, 161, 162, 163 and 164 of 2010 and Criminal Appeal No. 38 of 2018 set aside the High Court judgment. The court said if the convicts pay the requisite fine then their assets and properties shall not be forfeited as a set off for fine.