2012 P Cr. L J 1647
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
ABDUL MAJE ED---Petitioner
Versus
THE ACCOUNTABILITY JUDGE -I, QUETTA and others ---Respondents
C.P. No.369 and Criminal Ehtesab Appeal No.6 of 2012, decided on 19th June, 2012.
National Accountability Ordinance (XVIII of 1999) ---
----S. 31 -A--- Criminal Proc edure Code (V of 1898), S. 87 ---Constitution of Pakistan, Arts.
9 & 10 ---Abscondence to avoid service ---Appreciation of evidence ---Incorrect address ---
Trial in absentia ---Accused was convicted and sentenced under S.31 -A of National
Accountability Ordina nce, 1999, for abscondence to avoid service ---Validity ---Warrants of
arrest of accused and co -accused were issued and forwarded to police and Investigating
Officer of the case but could not be executed ---Proclamation under S.87, Cr.P.C. was issued
and noti ce was affixed on notice board of the court ---When reference was filed and
proceedings under S.31 -A of National Accountability Ordinance, 1999, were initiated against
accused, he was present in another city and was unaware of the proceedings ---Nothing was
available on record which could prove that Trial Court issued any notice against accused at
his address given in appeal ---Prosecution failed to prove that accused had deliberately or
wilfully absconded himself --- Trial in absentia was against the pro visions of Arts. 9 and
10 of the Constitution, therefore, conviction and sentence awarded by Trial Court was
not sustainable in the eyes of law ---High Court set aside conviction and sentence
awarded to accused under S.31 -A of National Accountability Ordinance, 1999, and remanded
that case to Trial Court for fresh trial.
Manzar Siddique for Petitioner.
Syed Abuzar Haider Rizvi, Special Prosecutor, NAB for the State.
Date of hearing: 5th June, 2012
JUDGMENT
GHULAM MUSTAFA MENGA L, J. ---This judgment shall dispose of Criminal Ehtesab
Appeal No.6 of 2012, whereby appellant has prayed that the impugned order dated 30th May,
2011, passed by the learned Accountability Judge -I, Balochistan, Quetta, whereby he
convicted the appellant un der section 31 -A of the National Accountability Ordinance, 1999 in
Reference No.7 of 2009 and sentenced him to suffer imprisonment for three (3) years and the
Writ Petition No.369 of 2012, whereby petitioner has prayed that pending disposal of the
referenc e before the trial Court, the petitioner may be enlarged on bail in accordance with
law.
2. Briefly the facts, relevant for the disposal of the case are that the Chairman, National
Accountability Bureau filed Reference No.7 of 2009 against the appellant/ petitioner and
others under section 18(g) read with section 24(b) of National Accountability Ordinance,
1999, alleging therein that the co -accused Azmatullah, being Excise and Taxation Officer,
Hub, Quetta and Dera Allah Yar with the connivance of other pe rsons had registered various
vehicles on fake and forged documents. It is further mentioned in the reference that the co -
accused including the petitioner are beneficiaries, who had presented fake/forged
documents to accused Azmatullah, who intentiona lly registered the vehicles of accused
persons as genuine and caused loss of Rs.19,47,441 to the Government exchequer. As per
allegations the petitioner had caused loss of Rs.4,93,352 for presenting forged/fake
documents of vehicle No.JA -3452, Toyota Hiace Commuter Van STD. During course of the
investigation co -accused Azmatullah filed an application for plea bargain, which was
accepted against an amount of Rs.2.470934 million, which was confirmed by the trial Court
vide order dated 26th December, 2008.
3. After submission of the Reference the learned trial Court proceeded against the
petitioner/appellant and other co -accused persons under section 87/88, Cr.P.C. for procuring
their attendance and also issued proclamation in the newspapers. The learned Acc ountability
Court -1, Baluchistan, Quetta after conclusion of the trial, convicted the appellant/petitioner
and others under section 31 -A of, the National Accountability Ordinance, 1999 for three
years vide order dated 30th May, 2011 and he was arrested on 7th May, 2012. Hence the
present appeal/petition.
4. Mr. Manzar Siddique, learned counsel for the appellant/petitioner contends that the
petitioner had never absconded rather he is permanent resident of Rawalpindi and not
avoided any service of warrants and no notice was served upon him. He further contended
that the petitioner was available at his residence and was arrested from the same. He further
contended that the petitioner/appellant has been convicted and sentenced by the learned trial
Court in abs entia, which is in violation of Articles 9 and 10 of the Constitution of Islamic
Republic of Pakistan, 1973. He further contended that the appellant/petitioner was arrested on
7th May, 2012 and since then he is behind the bars, and there is no chance of co nclusion of
the trial in the near future, therefore, the petitioner is entitled to be released on bail till the
final decision of the reference in question by the learned trial Court.
5. On the other hand Syed Abuzar Haider Rizvi, learned Special Prosecu tor, NAB
strongly opposed the bail application, contended that the appellant/petitioner had
intentionally and deliberately avoided his appearance to face the reference, as such, the
learned trial Court has rightly convicted and sentenced him.
6. We have heard the learned Counsel for the parties and have gone through the
reference filed against the petitioner and the impugned order. We find from the facts reflected
in the impugned order that the process server did not come in the witness box for the
testim ony. Chapter VI of the Cr.P.C. deals with the process to compel appearance. This
Chapter provides an exhaustive procedure. The procedure prescribed under section 87,
Cr.P.C. is to be adopted only after recording of evidence and this is followed by section 88 of
the Cr.P.C., authorizing attachment of the property of the accused. In the instant case warrant
of arrest of appellant/petitioner and other co -accused persons were issued and forwarded to
the D.P.Os and Investigating Officer of the case but could not be executed. The proclamation
under section 87, Cr.P.C. was issued and notice was affixed on the notice board of the Court.
Prima facie it appears from the record that when the reference was filed and proceedings
under section 31 -A of the National Account ability Ordinance, 1999 were initiated against the
appellant/petitioner he was present in Rawalpindi and he was unaware of the said
proceedings. There is nothing on record which could be proved that the trial Court issued any
notice against the appellant/p etitioner at his address given in the appeal/petition, as such, the
prosecution has failed to prove that the appellant/petitioner had deliberately or wilfully
absconded himself. It has been held by the apex Court that the trial in absentia is against the
provisions of Articles 9 and 10 of the Islamic Republic of Pakistan, 1973, therefore, the
conviction and sentence awarded by the learned trial Court is not sustainable in the eyes of
law.
7. For what has been discussed above, we allow Appeal No.6 of 2012 and set aside the
impugned order dated 30th May, 2011, passed by learned Judge, Accountability Court -I,
Balochistan, Quetta and remand the case back to the trial Court for holding fresh trial in
accordance with law by affording him opportunity to defend hi mself. Consequently, we also
allow the Petition No.369 of 2012 and admit the petitioner on bail subject to furnishing surety
in the sum of Rs.5,00,000 (Rupees, five lacs only) and P.R. of the like amount to the
satisfaction of the Registrar/Additional Regi strar of this Court or the trial Court.
MH/52/Q Case remanded.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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