2020 P Cr. L J 486
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
ZAFAR IQBAL ---Appellant
Versus
The JUDGE ACCOUNTABILITY COURT -I, BALOCHISTAN, QUETTA and another -
--Respondents
Criminal Ehtesab Appeal No. 21 of 2019, decided on 12th September, 2019.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 31- A---Abscondance to avoid service of warrants ---Failure to frame the charge for
such absconsion---Effect ---Appellant assailed his conviction which was recorded in his
absence--- Publication was made in newspaper of the Province other than the one wherein the
appellant resided---Record was silent in respect of the circulation of newspaper in other
Province or on national level ---No report was available on record to establi sh the execution
of warrants upon the appellant ---No conviction could be recorded without framing a charge
and no charge could bring the guilt at home against the accused without leading the evidence with opportunity of cross -examination to the defence---I mpugned order of conviction was
silent about framing the charge under S. 31- A, National Accountability Ordinance, 1999 and
recording of any evidence in respect of wilful absconsion of the appellant ---Appeal was
accepted and the conviction and sentence awar ded to the appellant was set aside, in
circumstances.
(b) National Accountability Ordinance (XVIII of 1999) ---
----S. 31- A---Constitution of Pakistan, Arts. 9, 10 & 10- A---Abscondance to avoid service of
warrants ---Security of person, safeguards as to arr est and detention, right to fair trial---
Offence under S. 31 -A, National Accountability Ordinance, 1997 is a distinct offence, which
provides for punishment of willful absconsion to an accused who is/was going to be charged for offending any of the provisi ons of the Ordinance ---Where neither any charge is framed
nor any evidence is produced by the prosecution to substantiate the charge of wilful absconsion, the conviction recorded by the court may accumulate into the success of the prosecution, but will cer tainly amount to offend the principles of natural justice relating to
fair trial of an accused and will also accumulate to a complete failure of due process of law for dispensation of justice.
Abdul Majeed v. The Accountability Judge -I, Quetta 2012 PCr.L J 1647 and Arbab
Khan's case 2010 SCMR 755 rel.
Tariq Mehmood Butt and Sohail Ahmed Rajput for Appellant.
Mumtaz Yousaf, DPO NAB and Jaffar Raza, Special Prosecutor NAB for the State.
Date of hearing: 4th September, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This Criminal Ehtesab Appeal is directed against
the order dated 07.01.2015 (impugned order) passed by the Judge, Accountability Court -I,
Balochistan Quetta (trial court), whereby the appellant along with co- accused persons were
convicted unde r section 31- A of the National Accountability Ordinance 1999 (the Ordinance)
and sentenced to suffer imprisonment for three (3) years' R.I.
2. Brief facts leading to file the instant appeal are that the NAB authorities filed a
Reference No.09/2014, under s ection 18(g) read with section 24(b) of the Ordinance against
the appellant and other absconding accused persons with the allegation that the accused
persons remained the benamidars of main accused namely Ghulam Fareed Patwari.
3. After submission of refer ence since the appellants and other accused persons were
shown absconders therefore after fulfilling the requisite formalities, the notices and non-bailable warrants of arrest of the appellant and others were issued and due to ineffective service the CWs w ere recorded. On 3rd January 2015 proclamation was published in news
paper i.e "Daily Mashriq Quetta". On 07.001.2015 due to non- appearance of the appellant
and others absconding accused persons the learned trial court vide impugned order passed the convic tion under section 31- A of the Ordinance and sentenced the appellant and other
absconding accused persons in the aforesaid terms. Hence this appeal.
4. We have heard the learned counsel for the appellant, the learned Special Prosecutor,
NAB and have also g one through the record.
5. Perusal of record reveals that the publication was made in one news -paper of
Balochistan and admittedly the appellant is resident of DG Khan Punjab. The record is silent in respect of publication published in the newspaper of Punjab province or on national level. No report is available on record to establish the execution of warrant upon the appellant. The Hon'ble apex Court has declared the conviction in absentia against the Articles 9 and 10 of the Constitution of Islamic Republ ic of Pakistan (the Constitution). In this regard reliance is
also placed on the case of Abdul Majeed v. The Accountability Judge -I, Quetta 2012 PCr.LJ
1647, wherein it has been held as under: -
"Prima facie it appears from the record that when the referen ce was filed and
proceedings under section 31- A of the National Accountability 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/petitioner at his address given in the appeal/petition, as such, the prosecution has failed to prove that the appellant/petitioner had deliberately or willfully 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 Constitution of Islamic Republic of Pakistan, 1973, therefore, the conviction and sentence awarded by the learned trial Court is not sustainable i n the eyes of law."
6. To adhere the principle of natural justice and keeping in view the provision of Article
10-A of Constitution of Islamic Republic of Pakistan 1973, every citizen of Pakistan in the
criminal trial against him is entitled to have a fair trial, therefore, Hon'ble Supreme Court in
Arbab Khan's case reported in 2010 SCMR 755 has declared the trial in absentia as unconstitutional.
6.(sic.) In view of above observation and following the principles of natural justice, no
conviction can be recorded without framing a charge, and no charge brings the guilt at home against the accused without leading the evidence with opportunity of cross -examination to
the defence. The impugned order of conviction was passed on 07.01.2015, which is silent about fr aming the charge under section 31 -A of the Ordinance and recording any evidence in
respect of wilful absconsion of the appellant.
7. Section 31 -A of the Ordinance is a distinct offence, which provides punishment for
willful abscondence to an accused who is /was going to be charged for offending any of the
provision of the Ordinance. But when neither any charge was framed nor an evidence produced by the prosecution to substantiate the charge of willful abscondence, the conviction recorded by the Court might a ccumulate into the success of the prosecution, but will
certainly amount to offend the principles of natural justice relating to the fair trial of an accused, and, will also accumulate to a complete failure of due process of law for (in) dispensation of justice.
Therefore, in view of the above amended part of section 31- A of the Ordinance and
the observation hereinabove followed by the dictum laid down by the apex Court, this appeal is accepted and the conviction and sentence recorded vide order dated 07.0 1.2015, under
section 31- A of the Ordinance, passed in Reference No.09 of 2013 by the Judge.
Accountability Court -I, Balochistan Quetta is set aside and case is remanded to the trial court
with direction to frame separate charge under section 31 -A of the N ational Accountability
Ordinance, 1999, to record prosecution and defence evidence and thereafter to decide the matter strictly in accordance with law.
SA/110/Bal. 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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