2015 M L D 1572
[Balochistan]
Before Jamal Khan Mandokhail and Muhammad Ejaz Swati, JJ
ABDUL RASHEED ---Appellant
versus
The STATE through Deputy Prosecutor -General NAB, Balochistan ---Respondent
Criminal Ehtesab Appeal No.14 of 2014, decided on 14th May, 2015.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 18(g), 24(b) & 31 -A---Criminal Procedure Code (V of 1898), Ss.87 & 88 ---Corruption
and corrupt practices ---Abscondance to avoid service of warrant ---Warrant of arrest issue d
against accused at his official address as well as on his residential address, having remained
unserved, Trial Court, after publication in the newspaper, ordered initiation of proceedings under
Ss.87 & 88, Cr.P.C. ---Trial Court, after such publication or dered to proceed against accused
under S.88, Cr.P.C., and on the next day of hearing passed order under S.31 -A of National
Accountability Ordinance, 1999, whereby accused was convicted and sentenced to suffer
imprisonment for three years' R.I. ---Validity ---If, it was established on the day of execution of
warrants of arrest, that accused was not present at his office, the proper course for the
prosecution was to repeat the warrants of arrest for some other date, or to confirm from the Head
of Department of accused whether accused was on his duty at the relevant time, or he was
absent ---Statement of accused that he was never absent from his duty at the relevant time, had
not been rebutted by the prosecution through any source of evidence ---Warrant of arrest h aving
not been repeated, no proper opportunity had been provided to accused, enabling him to appear
before the court ---Court was duty bound to strictly follow the procedure provided under S.87,
Cr.P.C., while proceeding against accused and declaring him ab sconder ---By not doing so,
declaring accused as absconder by the Trial Court was absolutely illegal ---Impugned orders
passed by the Trial Court, being not sustainable, were set aside ---Accused who was already
facing trial, was directed to regularly appear before the Trial Court on given dates, in
circumstances.
Hadi Shakil Ahmed and Muheebullah for Appellant.
Riaz Akhtar Tareen ADPG and Muhammad Afzal Harifal, Special Prosecutor, NAB.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---Facts of the case are that t he reference No.1 of
2014 under section 18(g) read with 24(b) of the NAB Ordinance, 1999 was filed by the NAB
authorities against the petitioner, wherein it is alleged that at the time of submission of the
reference, the petitioner was serving as Assistant Director, Food Department, at Kalat. The trial
Court issued warrants of arrest against the petitioner at his official address at Kalat as well as on
his residential address at Karachi through the concerned police. The warrants could not be served
upon the petitioner as such, the concerned ASI namely Muhammad Yousaf appeared before the
Court and recorded his statement as Court witness being CW -1. The said witness produced
before the Court the copy of warrants and report of the SHO Darkhshan police station K arachi.
On 14 -5-2014, the trial Court ordered that the proceedings under sections 87/88, Cr.P.C. be
initiated against the petitioner. According to the order sheet dated 27 -5-2014, the publication had
been made in the daily Jung Quetta and Daily Maizan Quet ta on 17 -5-2014. Consequently on 30 -
5-2014, the Court ordered to proceed against the petitioner under section 88, Cr.P.C. On the next
date of hearing, i.e. 20 -8-2014, the trial Court passed the order impugned under section 31 -A of
the NAB Ordinance, whereb y the petitioner was convicted and sentenced to suffer an
imprisonment for three years RI, hence this petition.
2. Learned counsel for the petitioner stated that the petitioner remained on his duty on the
date of issuance of the warrants of the arrest, but no effort was made by the respondent to serve
him. According to him, admittedly the petitioner is a Government Off icer in Balochistan,
therefore, there was no occasion to issue warrants of his arrest at Karachi. The learned counsel
added that apparently, the procedure provided by section 87 of Cr.P.C. has not been followed by
the trial Court, as such, the order impugn ed is a nullity in the eyes of law.
3. Learned ADPG and Special Prosecutor NAB opposed the contention and stated that the
petitioner has avoided to appear before the Court to face the trial, therefore, proceedings under
sections 87/88 were initiated and warrants were published in the newspapers. They stated that
warrants of arrest of the petitioner were issued against the petitioner at his both given addresses,
i.e. District Food Officer Kalat and at Karachi. but he avoided service, as such, he was rightl y
declared absconder, on the basis of which, the trial Court was right in convicting him.
4. We have heard the learned counsel for the parties and have gone through the record. It is
an undisputed fact that the petitioner was posted as Assistant Director Food Department at Kalat
and on 14 -5-2014. The CW -1 (ASI, Muhammad Yousaf), while appearing before the Court,
submitted a report that the office of the Food Department at Kalat. One of the officials informed
him that the petitioner has not come to the off ice for the last 20 to 25 days. Be that as it may,
from the statement of the CW -1, it is established that on the day of the execution of warrants of
arrest, the petitioner was not present in his office. The proper course for the prosecution was to
repeat t he warrants of arrest for some other date or to have inquired from the Director, Food
Department or the Secretary Food regarding whereabouts of the petitioner, but the needful was
not done. Only one attempt to serve the warrants of arrest upon the petition er was not enough.
The record reflects that the respondent made no effort to ask from the petitioner's Head of the
Department to confirm whether the petitioner was on his duty at the relevant time or was he
absent? On the other hand, the petitioner stated that he was never absent from his duty, which
statement has not been rebutted by the respondent through any source of evidence. There is
nothing on the record to prove that the warrants of arrest were repeated, as such, it seems that no
proper opportunity has been provided to the petitioner, enabling him to appear before the Court.
Besides, it was the duty of the Court to strictly follow the procedure provided under
section 87, Cr.P.C. while proceeding against a person and declaring him as absconder. Per usal of
the record reveals that the important ingredients of section 87, Cr.P.C. have not been fulfilled for
serving the warrants of arrest, which says "87(2)(a) it shall be publicly read in some conspicuous
place of the town or village in which such perso n ordinarily resides; (b) it shall be affixed to
some conspicuous part of the house or home stead in which such person ordinarily resides or to
some conspicuous place of such town or village; and (c) a copy thereof shall be affixed to some
conspicuous part of the court -house. (3) A statement in writing by the Court issuing the
proclamation to the effect that the proclamation was duly published on a specified day shall be
conclusive evidence that requirements of this section have been complied with, and that the
proclamation was published on such day".
Admittedly, nothing in this behalf has been done, nor the trial Court has discussed about
completion of the necessary formalities, which is contrary to the provision of section 87, Cr.P.C.
By not doing so, d eclaring the petitioner as absconder by the trial Court is absolutely illegal,
therefore, the impugned orders dated 14 -5-2014, 27 -5-2014 and 20 -8-2014 passed by the trial
Court are illegal, hence are not sustainable.
Thus, in view of above, the appeal i s allowed and all the aforesaid impugned orders are
set aside. The appellant is already facing trial, he is directed to regularly appear before the trial
Court on the given dates.
HBT/75/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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