IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acctt. Appeal No. D-130 of 2019

Criminal Acctt. Appeal No. D-133 of 2019

Criminal Acctt. Jail Appeal No. D-140 of 2019

Constitution Petition No. D- 1037 of 2019

Constitution Petition No. D- 1392 of 2021

Date Order with Signature of Hon’ble Judge

For orders on office objection at Flag ‘A’.

For Hearing of CMA 2924/2020 (151 CPC)

For hearing of main case.

Date of Hearing & Order : 15.03.2022.

Mr. Qurban Ali Malano, Advocate for Appellant in Crl. Accountability Appeal No.D-133 of 2019 and for petitioner in C.P No.D-1037 of 2019.

Mr. Sarfraz Ahmed Akhund, Advocate for Appellant in Crl. Acctt.Jail Appeal No. D-140 of 2019 and for petitioner in C.P No.D-1392 of 2021.

Mr. Mujeeb-ur-Rehman Soomro, Special Prosecutor NAB.

Mr. Mumtaz Ali Gopang, Assistant Attorney General.

AMJAD ALI SAHITO, J- Through Constitution Petitions No. D-1037 of 2019 and D-1392 of 2021 the petitioners namely Imtiaz Ahmed and Muhammad Muqeem seeks suspension of their sentence pending final disposal of their Criminal Accountability Appeal No.D-133 of 2019 and Criminal Jail Accountability Appeal No.D-140 of 2019, whereby they were convicted for the offences under section 9 (a) (iii), (iv), (vi), (xi) and (xii) of National Accountability Ordinance (XVIII of 1999), (the “Ordinance”)by the Accountability Court, Sukkur in Reference No.03/2017 (Re: Muhammad Kaleem and others) and sentenced under section 10 of the Ordinance to suffer R.I for 07 years and to pay fine of Rs. 1,64,00,000/- (one Crore Sixty Four Lac rupees only)each with directions that if he fails to pay the fine, the same shall be recoverable as arrears of Land Revenue in terms of section 33-E of the Ordinance. Benefit of section 382-B Cr.P.C was however extended to them.

2. M/s Qurban Ali Malano and Sarfraz Ahmed Akhund learned counsel for petitioners Imtiaz Ahmed and Muhammad Muqeem mainly contended that petitioners/accused are innocent and they have falsely been implicatedin this case. They further contended that co-accused Nasrullah Chandio District Food Controller and Qaisar Khan Unar Deputy Director Food were acquitted by the learned trial Court while the operation of the sentence awarded to co-accused Muhammad Kaleem has already been suspended by this Court vide order dated 31.08.2021 in C.P No.D-1030 of 2019. Learned counsel for the petitioners/accused contended that the petitioners have already served out up till now 02 years 08 months and 09 days as substantive sentence and they have earned remissions about one year and four months, as such their unexpired portion of sentence remains only about three years. It is further contended that the petitioners/accused are not at fault for the delay in disposal of their appeal pending adjudication before this Court, though the same is required to be decided within 30 days as provided under section 32(b) of the Ordinance but there is no possibility of disposal of the same in near future due to heavy backlog of the cases, as such both petitioners/accused are entitled for the same relief as already granted to co-accused Muhammad Kaleem.

3. On the other hand, learned Special Prosecutor for NAB has vehemently opposed for suspension of the sentence during the pendency of their appeals as there is sufficient evidence on record to justice the conviction and sentence of the petitioners.

4. Heard learned counsel for the petitioners/accused, learned Special Prosecutor NAB and perused the material available on record.

5. The role attributed against the petitioner Imtiaz Ahmed Mahar that he being incharge of WPC Garhi Chakar and WPC Jarwar, District Ghotki during his posting as Food Incharge he allowed dispatch to accused petitioner/accused Muhammad Muqeem of wheat crop season 2012-2013 on 73 bilties/receipts of accused No.1 without his nomination and in contravention of agreement between food department and contractor as well as directives of food department whereas the allegation against petitioner/accused Muhammad Muqeem was that he was surety of accused No.1 Muhammad Kaleem to whom the food department has made contract for lifting of wheat from different centres. From the perusal of Reference as well as evidence it appears that the allegation against co-accused Qaisar Khan Unar, Deputy Director Food Sukkur and Nasrullah Chandio District Food Controller were acquitted by the learned trial Court whereas petitioner/accused Imtiaz Ahmed Mahar only dispatched the wheat bags from his centre to PRCs of Sukkur.

6. Learned counsel for petitioner/accused Imtiaz Ahmed Mahar invited the attention of this Court to page No. 271 of paper book and submits that the bags were dispatched in presence of District Food Controller Sukkur and District Food Controller Ghotki at Mirpur Mathelo and same were received at D.F.C Sukkur.

7. Learned Special Prosecutor NAB submits that they failed to obtain CNIC or any receipt to believe that the petitioner/accused Imtiaz Ahmed Mahar has handed over the wheat bags to proper person, however, he admits that there is no allegation of corruption or corrupt practices against both the petitioners/accused.

8. It is an admitted position that both petitioners have served out the substantive sentence of about 04 years (including remissions) and there remains about three years as unexpired portion of their sentence as per their Jail Roll dated 05.03.2022. the decision of appeals filed by the petitioners against their conviction and sentence in wake of huge backlog of cases is likely to take place in nature future. Moreover, the sentence of co-accused Muhammad Kaleem has already been suspended by this Court in C.P No.D-1030 of 2019 and thus the present petitioners are also entitled for the same relief. Resultantly, we allow both constitution Petitions Nos.D-1037 of 2019 and 1392 of 2021. The operation of the sentence awarded to the petitioners Imtiaz Ahmed Mahar and Muhammad Muqeem is suspended subject to their furnishing solvent surety in the sum of Rs. 5,00,000/- (Rupees Five lacs only) each and PR bond in the like amount to the satisfaction of Additional Registrar of this Court.

9. The Constitution Petition Nos. D-1037 of 2019 and D-1392 of 2021 are disposed of in the above terms. It is further clarified that the aforesaid Accountability appeals, if any, are not to be treated as Part-Heard and to be fixed as per roster after two weeks.

Judge

Judge

Irfan/Pa