THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Appeal No. 28 of 2022

 

               Present:                 Mr. Justice Naimatullah Phulpoto

                                                                                                    Mr. Justice Shamsuddin Abbasi

 

Appellant                          :               Afzal-ul-Haq through Mr. Muhammad Ali Akbar advocate

 

Respondent                       :               NAB through its Chairman through                        Mr. Muhammad Anwar Shaheen Special Prosecutor NAB

 

Date of Hearing                :               03.05.2023

Date of decision                :              03.05.2023

 

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- Learned Accountability Court No. IV Sindh at Karachi conducted trial in Reference No. 36 of 2000 against accused Muhammad Munawwar and Abdul Mateen. After regular trial, vide judgment dated 07.12.2001, convicted accused Muhammad Munawwar and Abdul Mateen for offence of corruption and corrupt practices as defined under sub-clauses (iii), (vi) & (ix) of sub section (a) of Section 9 of NAB Ordinance 1999 and sentenced to suffer R.I for 03 years each and to pay fine of Rs.10.00 Million. In default of payment of fine, they were ordered to suffer S.I for 06 months. Both accused were disqualified for a period of 10 years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body and also they shall not be allowed to obtain any financial facility in the form of loan or advances from any financial institutions controlled by Government for a period of 10 years. Absconding accused including appellant were convicted under section 31-A of NAB ordinance 1999 for concealing themselves to avoid being served with the process of the court to screen from the proceedings of the case and they were sentenced to undergo 03 years R.I and main case was kept on dormant file.

2.         Learned advocate for the appellant contended that during pendency of Reference No. 36 of 2000, appellant was at USA and he was not in knowledge of filing of reference against him. It is further submitted that appellant was surprised to know that he has been convicted in his absentia by trial court on 07.12.2001. It is argued that conviction of the appellant in his absentia was against the principles of natural justice and violative of the Constitution of Islamic Republic of Pakistan, 1973 and prayed for setting aside conviction awarded to the appellant in absentia. In support of his contentions he relied upon the cases reported as Dr. Mobashir Hassan and others vs. Federation of Pakistan and others (PLD 2010 S.C 265) and Mst. Mubarak Salman and others vs. The State (PLD 2006 Karachi 678).

3.         Learned Special Prosecutor NAB argued that the appellant deliberately avoided to face Reference filed against him and opposed the appeal. However. He prayed for remand of the case to the trial court for conducting proceeding against the appellant in accordance with law.

4.         After hearing learned counsel for the parties, we have perused the R&Ps and impugned judgment. It appears that NAB filed Reference No. 36 of 2000 before trial Court against Muhammad Munawwar, Abdul Mateen and others showing appellant and six others as absconders. During trial, appellant was declared as proclaimed offender. Special prosecutor NAB was asked by this Court to satisfy the Court that absconsion of the appellant was deliberate and intentional and he was in Pakistan during trial, but he failed to satisfy the Court. On the other hand plea raised by the appellant that during trial he was at USA after his conviction in absentia, he voluntarily surrendered before this Court.

5.         From perusal of record, we have come to the conclusion that NBW issued against appellant was never executed upon him. No doubt trial court had initiated proceedings against the appellant under sections 87 & 88 Cr.P.C, but it appears that learned trial Court failed to satisfy that appellant avoided to face trial deliberately. In the present case judgment was passed by trial court against the appellant without any trial as provided under the law and that, too, in absentia, which is against the principle of natural justice and violative of Articles 9 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973, under which citizens have been guaranteed that they shall not be deprived of life and liberty save in accordance with law. In the case of Mst. Mubarak Salman and others (supra) conviction in absentia has been declared as violative of the Constitution of Islamic Republic of Pakistan 1973 and contrary to the principles of natural justice. Relevant portion is produced as under:

“15. In the present matters, the judgments were passed without any trial as provided under the law and that, too, in absentia which is against the principle of natural justice and violative of the Article 9 of the Constitution under which the citizens have been guaranteed that they shall not be deprived of life and liberty save in accordance with law. Further, the trial Courts considered the statements of process servers whose statements were recorded for proceedings under sections 87 and 88, Cr.P.C. Their statements cannot be treated as evidence within the meaning of Qanun-e-Shahadat, 1984. The trial Court, had power to convict the accused in the manner provided by law and at the proper stage of the trial but the same has not been done, hence the judgments were passed in excess of the powers of the trial Courts, therefore, the same cannot be termed as final, neither anybody can plead the same to be final. Furthermore, the Court is required to pass a legal order only. The old rule that if any authority has jurisdiction to pass an order, then it can pass it rightly, and, wrongly has been modified to the extent that the authority can pass an order, which is legal only. Reference is invited to Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Rehmdil v. Province of Balochistan 1999 SCMR 1060. All the above points and other related points, were considered in detail in the case of Noor Muhammad Khatti (supra) by this Court while setting aside the conviction under section 31-A of the Ordinance arising out of similar facts and circumstances of the present appeals. The said reasons are also adopted in these appeals. All the above facts clearly demonstrate that the judgments under discussion are void ab initio. Similar view was taken in the case of Noor Muhammad Khatti.”

 

6.         It is observed here that offence under section 31-A of NAB Ordinance 1999 is distinct and separate offence. Conviction and sentence recorded against appellant by trial court vide judgment dated 07.12.2001 are set aside. Appeal is allowed to the above extent. Case is remanded to the trial court for conducting afresh trial against the appellant in Reference No. 36 of 2000 with regard to main allegations strictly in accordance with law. At this stage, learned advocate for the appellant pointed out that case of co-accused who are facing trial before Accountability Court has been returned by the trial Court for want of jurisdiction. National Accountability (Amendment) Act, 2022 has been promulgated on 22nd June, 2022, trial Court is directed to decide in the first instance point of jurisdiction to hear the above mentioned Reference in accordance with law. Appellant is directed to appear before trial Court on 5th June 2023. Office is directed to return R&Ps to the trial Court forthwith.

7.         The instant Accountability Appeal is disposed of in the above terms.    

 

 

                                                                                                                              J U D G E

J U D G E