THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Appeal No. 35 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Abdul Manan through Mr. Imtiaz Hussain Bhutto advocate

Respondent : The State through D.G, NAB Sindh through Mr. Muhammad Anwar Shaheen Special Prosecutor NAB

Date of Hearing : 10.04.2023

Date of decision : 10.04.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Abdul Manan appellant was convicted in his absentia in Reference No. 02 of 2018 in terms of Section 33-A of NAO 1999 by learned Judge, Accountability Court No.1, Sindh Karachi vide judgment dated 20.02.2021.

2. Brief facts leading to the filing of the instant appeal are that Nisar Ahmed Jan (Nisar Morai) and others were tried by learned Judge, Accountability Court No.1, Sindh Karachi. After regular trial vide judgment dated 20.02.2021, co-accused were convicted and sentenced as under:

“1) As to dual office allegedly held by accused Nisar Ahmed Morai it stands established that while serving as Medical Officer (BPS-18) in Health Deptt, Govt of Sindh, he was nominated as Director FCS in terms of Article 32(c) of the FCS Bye-laws and later elected its’ Chairman. For the reasons elaborated above, no exception could be taken against his nomination as Director or becoming Chairman of FCS where he did not receive any remuneration or honorarium. In any case, if it was against any service laws/rules it was for the Health Department to have initiated action against the accused but his nomination as Director or being Chairman in FCS in itself does not seem actionable by NAB in the present Reference.

2) That out of 343 illegal appointments alleged by the prosecution against accused Nisar Ahmed Morai, the misuse of authority defined in Section 9(a)(vi) of the NAO, 1999 in respect of only 143 direct appointments and 22 confirmation of them besides confirmation of 50 others in FCS is proved against him without following due procedure and in deviation of the Recruitment Rules while for the reasons stated above the allegation of illegal appointments against accused Abdul Saeed Khan and Sultan Qamar has not been legally proved. Consequently, only accused Nisar Ahmed Morai is hereby convicted on the said charge under Section 10 of the NAO. 1999 and sentenced to imprisonment for 4(four) years and to pay fine of Rs.5,00,000/-(five lacs) and in case of its’ default to undergo imprisonment for 5(five) months more while accused Abdul Saeed Khan and Sultan Qamar are acquitted from the said charge.

3) With regard to the allegation of embezzlement of funds of trash-fish through its’ auction/sale without gate-pass by accused i.e Nisar Ahmed Morai, Sultan Qamar, and Abdul Saeed Khan in connivance with and abetment of Riaz Ahmed, Gul Munir and Abu Bakar, the prosecution has failed to prove it satisfactorily and thus all the above named accused are acquitted of the said charge.

4) The allegation of misuse of authority by accused Nisar Ahmed Morai and Sultan Qamar by awarding fake contracts worth Rs.5,54,26,7000/- to bogus Companies without adopting the procedure and publishing tenders on the basis of fabricated documents in connivance with and abetment of accused Imran Afzal, Haji Wali Muhammad and Shaukat Hussain and in deviation of the financial rules conversion of the payees’ cheques to open/cash cheques defined under 9(a)(vi)&(xii) of NAO, 1999 is also proved against all of them. Resultantly all the said accused i.e Nisar Ahmed Morai, Sultan Qamar, Imran Afzal, Haji Wali Muhammad and Shaukat Hussain are hereby convicted under Section 10 of the NAO, 1999 and each of them is sentenced to imprisonment for period of 7(seven) years and to pay fine of Rs.10 million each and in case of non-payment of it to undergo further imprisonment for 2(two) years each while accused Abdul Manan who has absconded away and is declared proclaimed offender is convicted u/s 33-A of NAO, 1999 and sentenced to imprisonment for 3(three) years.”

3. Appellant Abdul Manan was declared as proclaimed offender during trial and was convicted under Section 33-A of NAO 1999 and sentenced to 03 years R.I. It is stated that appellant has been arrested and presently, he is facing trial before learned Accountability Court concerned.

4. Notice was issued to the Special Prosecutor NAB. As per endorsement of the office appeals in the same Reference bearing Accountability Appeals No. 3 to 8 of 2021 were filed by co-accused before this Court and the same were dismissed.

5. Learned advocate for the appellant mainly contended that conviction of the appellant in his absentia was violative of Article 10 of the Constitution; that no process was ever served upon him during trial; that there was no material against him for conviction in absentia. In support of his submissions, reliance is placed upon the case reported as Manzar Qayyum vs. The State and others (PLD 2006 S.C 343) and Mian Qurban Ali vs. The State through Director General NAB (2015 P.Cr.L.J 1787) .

6. Special Prosecutor NAB in view of settled position of law recorded no objection for setting aside the conviction awarded to the appellant under Section 31-A of Ordinance 1999 and prayed for remand of case to the trial Court for fresh trial.

7. Legality of the conviction under section 31-A of Ordinance of 1999 is now well settled proposition of law. There can be no cavil to the proposition that the provisions of Section 31-A of Ordinance of 1999 are against the mandate of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 and as such the fact by itself is sufficient to set at naught the order of conviction.

8. In view of above, we accept the appeal against the judgment of conviction of appellant in absentia under Section 33-A of NAO 1999 dated 20.02.2021 and set aside the same to the extent of appellant only. Trial Court is directed conduct fresh trial against the appellant in accordance with law.

9. Appeal is disposed of in above terms.

J U D G E

J U D G E