:egal Advice on Writ Petitions for Suspension of NAB Sentences

NAB-Related Writ Petition for Suspension of Sentence: Section 426 Cr.P.C. Inapplicability in NAB Cases

At Josh and Mak International, we recently handled a critical case involving a Writ Petition challenging a High Court judgment from 2012 concerning the suspension of sentence. The crux of the argument was that the provisions of Section 426 of the Criminal Procedure Code (Cr.P.C.) are not applicable for seeking suspension of sentences in National Accountability Bureau (NAB) cases. This issue arose from a Criminal Appeal (Cr.A) of 2012, which was pending before the Hon’ble High Court.

Background of the Case

The petitioner was implicated in a NAB Reference from 2009, alleging that he, along with four other accused individuals, defrauded a bank of Rs. 71.938 million through fake Inland Letters of Credit (ILCs). Despite the severity of these allegations, the petitioner sought the suspension of his sentence on several substantive grounds.

Grounds for Suspension of Sentence

1. Unsustainable Conviction: The conviction of the petitioner, while acquitting the other four accused, was legally flawed.
2. Pending Banking Suit: The principal accused had opened bank accounts in 1998, and the bank’s suit for loan recovery remains pending. The mortgages securing the loans were not disclosed to the trial court.
3. Violation of NAB Ordinance: The reference by the NAB Chairman was illegal under Section 31-D of the NAB Ordinance due to the lack of permission from the Governor State Bank of Pakistan.
4. Unauthorized Complainant: The complainant was not authorized to file a complaint with NAB, lacking special permission from the Bank’s Board.
5. Faulty Inquiry Report: The trial court relied on an improperly introduced and non-credible inquiry report.
6. Irrelevant Blame on SWIFT: The petitioner was unjustly blamed for SWIFT transactions beyond his control.
7. Failure to Consider Contradictions: The trial court ignored material contradictions in the prosecution’s evidence, casting doubt on the case.
8. Unmentioned Loan Settlement: The judgment did not mention the settlement of pending loans between the complainant and the bank outside the court.
9. Petitioner’s Innocence: The petitioner was falsely implicated, while those responsible were acquitted.

Outcome

The Writ Petition was resolved in favor of the petitioner, highlighting the necessity for meticulous legal strategies and comprehensive representation.

Legal Services Offered by Josh and Mak International

Based on our experience and the specifics of the above case, Josh and Mak International is well-equipped to offer a broad spectrum of legal services to clients facing similar challenges:

1. Writ Petition Filing: We assist clients in filing Writ Petitions to challenge High Court judgments on relevant legal grounds. This includes preparing and drafting all necessary legal documents and representing the client in court.
2. Legal Research and Analysis: Our firm conducts thorough legal research and analysis to support our clients’ cases. This involves examining relevant statutes, case laws, and legal precedents to formulate robust arguments.
3. Criminal Defense: For clients facing charges in NAB cases, we provide comprehensive criminal defense services. This includes representation during trials, cross-examination of witnesses, presentation of evidence, and the development of strong defense strategies.
4. Appeals and Review Petitions: If a client’s Criminal Appeal (Cr.A) is unsuccessful, we assist in filing appeals or review petitions before the appropriate courts.
5. Expert Legal Advice: We provide expert legal advice on various aspects of NAB cases, including the validity of the NAB Reference, the legality of trial court proceedings, and potential grounds for challenging convictions.
6. Petition for Bail/Suspension of Sentence: We file petitions seeking bail or suspension of sentences, particularly when no alternate remedy is provided under the law.
7. Legal Representation: We represent clients throughout the legal process, including court hearings, presenting arguments, and advocating for their rights.
8. Strategic Planning: We help clients devise strategic plans to effectively present their cases, including identifying key evidence, preparing witnesses, and anticipating counterarguments.
9. Settlement Negotiations: When appropriate, we engage in settlement negotiations with opposing parties or the prosecution to seek favorable resolutions for our clients.

At Josh and Mak International, our goal is to offer comprehensive legal services that protect our clients’ rights, challenge unjust convictions, and seek favorable outcomes.

Contact Us

If you are facing similar legal challenges or need expert advice on NAB-related matters, please get in touch with us via email at aemen@joshandmak.com. We are here to help you navigate the complexities of your case with professionalism and dedic

The following cases provide insightful perspectives on the suspension of sentences in NAB cases and illustrate how different judicial interpretations address this issue within various contexts:

Arif Pervaiz v. Director General, National Accountability Bureau (2023 MLD 28, Lahore High Court) In this case, the accused was convicted by the Accountability Court for offences involving assets beyond known sources of income, misuse of authority, and cheating the public. The accused sought suspension of his sentence on the grounds that he had filed an application to enter into a plea bargain. The Lahore High Court held that since the accused had submitted a bank pay order to the Chairman NAB for the amount determined by the Accountability Court, and the finalization of plea bargain proceedings would take time, the suspension of the sentence was warranted. The High Court granted bail, suspending the sentence until the completion of plea bargain proceedings.

Muhammad Arshad v. State (2022 PLD 437, Lahore High Court) This case involved the jurisdiction of the High Court in suspending sentences pending appeal. It emphasised that, except where provided by law or rules, the Chief Justice’s prerogative is that all cases must be heard by a single judge unless the Division Bench of the High Court orders otherwise. The case highlighted that the mere filing of an appeal against acquittal does not affect the maintainability of an application for the suspension of a sentence before a Single Bench unless a specific order is passed by the Division Bench.

Israr alias Qari v. State (2022 MLD 1812, High Court Azad Kashmir) The court held that the suspension of a sentence pending appeal can only be granted after concluding that the conviction is unlikely to be sustained without a deeper appreciation of evidence. The case highlighted that while tentative assessments of evidence might be made in certain circumstances, this exception should not be used to defeat the general principle that suspensions should be based on substantial grounds.

Maqbool Ahmad v. State (2021 MLD 1038, Lahore High Court) The court discussed the principles for granting bail and the conditions of bail bonds. The High Court reduced the bail bond amount for an accused who could not furnish the required security, noting that the financial capacity of the accused must be considered, and the amount should not be excessive or unreasonable. The court directed that the accused be released on bail with a reduced bond amount, emphasising the importance of ensuring the presence of the accused without imposing undue financial hardship.

Sheikh Muhammad Asghar v. Chairman, National Accountability Bureau, Islamabad (2021 YLR 188, Karachi High Court Sindh) The High Court declined to suspend the sentences of accused persons convicted of misappropriating government funds, holding that bail could be granted only on a tentative assessment of evidence. Since prima facie evidence was against the accused, and they had not completed a substantial period of their sentence, the petition for suspension was dismissed.

Masood Alam Niazi v. State (2021 PCrLJ 99, Karachi High Court Sindh) In this case, the accused were convicted of misusing authority and misappropriating government funds. The High Court set aside the conviction and sentence due to procedural irregularities and lack of substantive evidence. The court emphasized the necessity of substantial evidence to support claims of misappropriation and misuse of authority, illustrating that procedural irregularities alone do not constitute corruption or corrupt practices.

Muhammad Iqbal v. State (2020 PLD 183, Lahore High Court) The court addressed the issue of court fees in petitions for the suspension of sentences filed by prisoners. It held that prisoners are exempt from affixing court fees on such petitions, as provided by the Court Fees Act, 1870. The court overruled the office objection regarding insufficient court fees, noting that unnecessary objections could curtail the liberty of prisoners entitled to apply for suspension of sentences.

Mian Muhammad Shahbaz Sharif v. State (2020 PCrLJ 213, Islamabad) This case distinguished between the judicial power to suspend sentences under S. 426, Cr.P.C., and the executive power under S. 401, Cr.P.C. The court held that both powers coexist and that executive authority does not deprive the court of its jurisdiction to suspend sentences. The rationale behind S. 401, Cr.P.C., allows the Provincial Government to suspend sentences independently of the court’s judicial review.

Mian Muhammad Nawaz Sharif v. State (2019 SCMR 734, Supreme Court) The Supreme Court granted temporary bail to the petitioner for medical treatment, emphasizing that the court could suspend the sentence for a limited period based on medical grounds. The court noted that such decisions should consider the medical opinion and circumstances of the case, ensuring that the bail conditions are reasonable and designed to ensure the presence of the accused.

Muhammad Irfan v. State (2019 YLR 1606, Karachi High Court Sindh) The court reiterated that the provisions of S. 426, Cr.P.C., apply to NAB cases, notwithstanding S. 9(b) of the National Accountability Ordinance, 1999. The High Court held that its discretionary jurisdiction under Article 199 of the Constitution, read with S. 426, Cr.P.C. and S. 561-A, Cr.P.C., allows for the suspension of sentences in NAB cases, ensuring that such decisions are based on a tentative assessment of evidence and substantial grounds.

Mian Muhammad Nawaz Sharif v. State (2019 PLD 38, Islamabad) The court emphasized that a deeper appreciation of evidence is not permissible when considering the suspension of a sentence under Section 426 of the Criminal Procedure Code (Cr.P.C.). The appellate court can suspend the sentence if a preliminary review of the trial court’s judgment reveals apparent infirmities that suggest the conviction and sentence may ultimately not be sustainable. The court must focus on obvious flaws in the judgment that indicate a miscarriage of justice without delving into a detailed re-evaluation of the evidence.

Ghulam Qadir Khan v. National Accountability Bureau (2018 MLD 1, Lahore High Court) This case highlighted the court’s reluctance to grant bail or suspend a sentence for an accused with a history of absconding and entering into a plea bargain. The accused’s unexplained long abscondence was considered a corroboratory factor indicating guilt. The court held that the accused’s conduct did not warrant leniency, and the plea bargain agreement with NAB authorities implied an admission of guilt. The accused failed to establish any malice or ill-will by the complainant, and there was sufficient incriminating material to connect the accused with the alleged offences.

Anjum Ghaffar v. State (2017 MLD 2038, Lahore High Court) In this case, the Lahore High Court granted bail and suspended the sentence, noting that the evidence needed a detailed reappraisal. The court found inconsistencies in the prosecution’s case, such as changes in the injury’s location and improvements in witness statements. The trial court’s observations about the unestablished motive and the failure to recover any incriminating material despite extended physical remand also contributed to the decision to suspend the sentence and grant bail.

Juman v. State (2017 PCrLJN 242, Karachi High Court Sindh) The court denied the application for the suspension of the sentence, emphasizing that merely not falling within the prohibitory clause of Section 497 Cr.P.C. does not entitle an accused to release. The accused was convicted of a morally turpitudinous offence, and the court held that the conviction was not based on no evidence or inadmissible evidence. The seriousness of the offence and the failure to show that the conviction was unsustainable led to the dismissal of the application.

Nazir Ahmed Soomro v. State (2017 PCrLJN 220, Karachi High Court Sindh) The court considered statutory delay and the substantial part of the sentence already served by the accused. Although the accused’s own counsel contributed to delays, the court noted that one of the accused had served over eight years of a twelve-year sentence and had significant health issues. The substantial portion of the sentence served and the poor health condition justified suspending the sentences and granting bail.

Muhammad Adnan alias Dana v. State (2015 SCMR 1570, Supreme Court) The Supreme Court dismissed a petition for leave to appeal due to the petitioner’s failure to surrender to imprisonment as required by Supreme Court Rules. The petitioner had absconded after conviction, and the court held that surrender to imprisonment is a condition precedent for entertaining a petition for leave to appeal in cases involving an order of imprisonment. The court emphasised the necessity of compliance with judicial orders before seeking relief.

Naseer Shah v. State (2015 PCrLJ 758, Karachi High Court Sindh) The court highlighted the similarity between the provisions of Section 426(1) Cr.P.C. and Section 497 Cr.P.C., both concerning the suspension of sentences and the release of convicts on bail. The court reiterated that deeper appreciation of evidence is not permissible, and the decision should be based on a tentative assessment of the available evidence.

Muhammad Azram v. National Institute of Health (2015 PLC(CS) 537, Islamabad) The court dealt with procedural fairness and the principles of natural justice in the context of disciplinary proceedings. The decision emphasized that any disciplinary action against an employee must follow due process, including the right to a fair hearing and an opportunity to defend oneself against allegations. The court held that any deviation from these principles renders the disciplinary action void and unsustainable.

Nazir Ahmed v. State (2014 PLD 241, Supreme Court) The Supreme Court addressed the issue of filing subsequent applications for the suspension of sentences on the same grounds. The court observed that the petitioner-Judge’s inconsistent approach in granting bail based on the same facts and grounds raised doubts about the exercise of discretion. The court stressed the importance of consistency and propriety in judicial decisions and the need for substantial and valid grounds for granting the desired relief.

Nazir Ahmed v. State (2014 PLD 241, Supreme Court) In a related decision, the Supreme Court reiterated that subsequent applications for the suspension of sentences must be based on fresh grounds. If the grounds were available at the time of previous applications and were not successful, the same grounds cannot be used again for seeking the same relief. The court emphasized the need for consistency in judicial decisions and avoiding any impression of extraneous considerations influencing the outcome.

Jabbar v. State (2014 YLR 135, Karachi High Court Sindh) This case elucidates the distinction between the suspension of sentence under Section 426 Cr.P.C. and the grant of bail under Section 497 Cr.P.C. The appellate court has the discretion to suspend a convict’s sentence pending appeal, provided there are sufficient reasons. However, the power to suspend the sentence is not broader than the power to grant bail under Section 497 Cr.P.C. The court must be convinced that the conviction is based on no evidence, legal flaws, or inadmissible evidence. Only a tentative assessment of the evidence is permissible, and deeper appreciation is not allowed.

Irshad v. State (2014 PCrLJ 736, Karachi High Court Sindh) This case emphasizes that the suspension of a sentence under Section 426 Cr.P.C. cannot be granted merely based on affidavits or lack of motive, which need deeper examination during the main appeal hearing. The court reiterated that suspension of a sentence requires strong grounds and cannot be based on superficial assessments. The statutory intent differentiates the “suspension of sentence” under Section 426 Cr.P.C. from the “grant of bail” under Section 497 Cr.P.C., focusing on the sufficiency of evidence and the presence of reasonable grounds for believing the accused is not guilty.

Ghulam Murtaza v. Ghulam Shabir (2014 PLD 126, Karachi High Court Sindh) In this case, the court clarified that the provisions of Section 426 and Section 497 Cr.P.C. are analogous but cater to different criteria. The court must exercise its power to suspend a sentence with caution, requiring cogent reasons, especially for severe sentences like life imprisonment. The court should ensure that such decisions do not undermine the final outcome of the appeal and must be based on substantial grounds.

Abdul Manan v. State (2013 YLR 1175, Lahore High Court) The court highlighted that granting bail under Section 426(2-A) Cr.P.C. is a matter of right for bailable offenses once the trial court is assured of the convict’s intention to file an appeal. The heinousness of the offense does not eclipse this right, emphasizing that the trial court must grant bail once the requisite intention is established.

Ghulam Rasool v. State (2013 YLR 1779, Karachi High Court Sindh) This case reinforces the principle that only a tentative assessment of evidence is permissible while considering an application for suspension of a sentence. The court must avoid detailed appraisal and instead focus on whether there are sufficient grounds to believe that the appeal might succeed based on a preliminary review of the case.

Rizwan v. Federation of Pakistan (2013 YLR 520, Karachi High Court Sindh) The court in this case allowed the suspension of a sentence and granted bail due to the prolonged delay in hearing the appeal. The accused had already served a significant portion of the sentence, and the delay in the appeal process warranted the suspension of the sentence to prevent the accused from serving the entire sentence before the appeal could be heard.

Mazhar Ahmed v. State (2012 SCMR 997, Supreme Court) The Supreme Court in this case underscored the distinction between appearing before the court and surrendering to police custody. It held that appearance before the court suffices for the consideration of an application under Section 426 Cr.P.C., and the court must assess the application on merits rather than dismissing it solely on procedural grounds. The court emphasized the need for a tentative assessment of evidence while considering the suspension of a sentence and the analogy between Section 426 and Section 497 Cr.P.C. in terms of criteria for granting bail.

These cases collectively underscore the judiciary’s cautious approach in handling applications for suspension of sentences in NAB cases. The emphasis remains on ensuring substantial and reasonable grounds for such suspensions, maintaining procedural fairness, and balancing the rights of the accused with the principles of justice. The appellate courts exercise their discretion judiciously, focusing on tentative assessments of evidence and the presence of legal flaws or inadmissible evidence in the original conviction.