P L D 2019 Balochistan 63
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
RASOOL BAKHSH---Petitioner
Versus
The STATE---Respondent
Criminal Ehtesab Appeal No.17 of 2019, decided on 28th June, 2019.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 87 & 88---Issuance of process---Proclaimed offender, declaration of---Procedure---Accused as
aggrieved of order passed by Trial Court declaring him proclaimed offender---Plea raised by accused was
that he was not served process---Validity---Trial court was bound to repeat warrants of arrest for some
other date but needful was not done and only an attempt to serve notices upon accused was not enough---
Important ingredients of Ss. 87 & 88 Cr.P.C. were not fulfilled by Trial Court for serving warrants---
Warrants of accused were not affixed on some conspicuous place, i.e., house or home where accused
resided---Trial Court did not receive any report from concerned law enforcement agency to know
whether warrants were served upon accused or not---Such procedure was contrary to provisions of S.87
Cr.P.C. in circumstances.
(b) National Accountability Ordinance (XVIII of 1999)---
----S.31-A---Abscondance to avoid service of warrants---Prerequisites---Prosecution is required to prove
firstly, that accused is absconder; secondly, that court or any Authority or Officer has issued process
under National Accountability Ordinance, 1999; thirdly, that accused has absconded with intention to
avoid service of such process; and fourthly, manner in which he evaded or avoided service on himself or
concealed himself with intention to screen out from proceedings or punishment under National
Accountability Ordinance, 1999.
(c) National Accountability Ordinance (XVIII of 1999)---
----Ss. 31-A & 32---Appeal---Limitation---Conviction in absentia--- Accused was convicted under
S.31-A of National Accountability Ordinance, 1999 in his absence when he was declared proclaimed
offender---Plea raised by authorities was that appeal was time barred---Validity---No opportunity was
afforded to accused even otherwise, no evidence was called for by Trial Court and he was convicted only
on basis of unserved process which was in sheer violation of S.31-A of National Accountability
Ordinance, 1999---Judgment convicting accused was passed in absentia and he had no knowledge of
passing of conviction against him therefore, limitation would run from date of gaining knowledge by
accused---Moment the accused was arrested and he came to know about his conviction in absentia, he
challenged his conviction---High Court set aside conviction and sentence awarded by Trial Court as
prosecution had failed to prove that accused deliberately or intentionally evaded or avoided to appear
before Trial Court to face trial---Appeal was allowed in circumstances.
Iqbal Ahmed Turabi v. State PLD 2004 SC 830 rel.
Syed Ayaz Zahoor for Petitioner.
Jaffar Raza, Special Prosecutor NAB for the State.
Date of hearing: 12th June, 2019.
JUDGMENT
ROZI KHAN BARRECH, J.-- The appellant Rasool Bakhsh son of Safar Khan has filed the instant
appeal under Section 32 of the National Accountability Bureau Ordinance, 1999 (the "NAB Ordinance")
whereby he has called in question the legality and validity of his conviction and sentence awarded by theP L D 2019 Balochistan 63 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2019Q11
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Accountability Court-1, Balochistan Quetta, under Section 31-A of the NAB Ordinance in NAB
Reference No. 10/2008 vide order dated 10.03.2010.
2. Briefly stated the facts, relevant for disposal of this appeal are that the Chairman, NAB filed NAB
Reference No.10/2008 under Section 10-A of the NAB Ordinance before the Accountability Court-1
Quetta, alleging therein that the accused/appellant Rasool Bakhsh son of Safar Khan while serving as
Post Master (BPS-7) at Post Office Gandawa from 23.06.2000 to 17.04.2000(sic) had
misappropriated/embezzled the cash/stamps of the Post Office Gandawa amounting to Rs.394,843/-, as
such, he has committed the act of corruption and corrupt practices as defined in Clauses (iii)(iv) and (vi)
of Section 9(a) of the NAB Ordinance.
3. After submission of the afore-referred NAB Reference; the learned trial court proceeded against the
accused/appellant under Sections 87 and 88, Cr.P.C for procuring his attendance and after the issuance of
the warrants of his arrest which were received un-served convicted him under Section 31-A of the NAB
Ordinance vide order dated 10.03.2010 in absentia and simultaneously, proceedings under Sections 87
and 88 Cr.P.C were also initiated against the appellant, hence the present appeal.
4. Syed Ayaz Zahoor, learned counsel for the appellant, stated that the appellant was tried in absentia
without affording him any opportunity to defend himself properly which is in violation of Article 9 of the
Constitution of the Islamic Republic of Pakistan, 1973 (herein- after referred to as the "Constitution").
He further argued that no warrants of arrest were served upon the appellant. He emphatically added that
the procedure provided in Section 87 Cr.P.C has not been followed by the trial court properly, as such,
the order passed by the Trial Court is itself nullity in the eyes of law.
Mr. Jaffar Raza, Special Prosecutor, NAB has vehemently opposed the contentions put-forth by the
learned counsel. He argued that the appellant has intentionally evaded his appearance before the trial
court to face the trial, therefore, proceedings under Sections 87 and 88 Cr.P.C were rightly initiated
against him and subsequently, warrants of arrest were issued through publication in daily newspapers. He
further added that the appeal filed by the appellant is hopelessly barred by time.
5. We have heard the learned counsel for the parties at length and with their valuable assistance,
perused the available record of the case. A perusal of record reflects that the Process Server did not come
in the witness box for the testimony. According to the record, notices as well as warrants of arrest against
the appellant issued from 20.8.2008 till 10.3.2010 were received back un-served, which has been clearly
mentioned by the learned Judge, Accountability-I Quetta in the order sheet dated 26.01.2010. It would be
appropriate to reproduce the same herein under:
6. It transpires from the above order sheet that neither process of service was properly effected upon
the accused/appellant nor the statement of Process Server was recorded. In this regard, Chapter VI of the
Cr.P.C. deals with the process to compel appearance of an accused. 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, Cr.P.C. authorizing attachment of the property of the
accused. The learned trial court was bound to repeat the warrants of arrest for some other date but the
needful was not done and only an attempt to serve the notices upon the appellant is not enough. A
perusal of the record revealed that important ingredients of Sections 87 and 88, Cr.P.C were not fulfilled
by the trial court for serving the warrants. Even, the warrants of the appellant were not affixed on some
conspicuous place i.e. house or home where the appellant resides. Even otherwise, the trial court did not
receive any report from the concerned Law Enforcement Agency, to know whether the warrants were
served upon the appellant or not, which all is contrary to the provisions of Section 87, Cr.P.C. It may be
seen that the proceedings were in respect of trial pertaining to the Offence under Section 31-A of the
NAB Ordinance as herein the prosecution was required to prove the essential ingredients of Section 31-A
of the NAB Ordinance, which reads as follow:
"Absconding to avoid service of warrants.---Whoever absconds in order to avoid being served withP L D 2019 Balochistan 63 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2019Q11
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any process issued by any Court of any other authority or officer under this ordinance or in any
manner prevents, avoids or evades the service on himself of such process or conceals him to
screen himself from the proceedings or punishment under this ordinance shall be guilty of an
offence publishable with imprisonment which may extend to three years notwithstanding the
provisions of sections 87 and 88 of Code of Criminal Procedure, 1898 or any other law for the
time being in force."
7. A bare reading of the aforesaid section reveals that the prosecution is required to prove firstly that
the accused is absconder, secondly that the Court or any authority or officer has issued process under the
Ordinance, thirdly, that the accused has absconded with intention to avoid service of such process,
fourthly, the manner in which he evaded or avoided the service on himself or concealed himself with
intention to screen out from the proceedings or punishment under the Ordinance.
8. The afore-narrated ingredients being essential are required to be proved by leading evidence in
accordance with the provisions of Qunun-e-Shahadat Order, 1984, which specifies that evidence means
examination-in-chief, cross-examination and re-examination if any. Under Section 353, Cr.P.C. evidence
is to be recorded in presence of accused otherwise it cannot be regarded as evidence to be relied upon or
used against the accused except in the proceedings under section 512, Cr.P.C. which is an exception to
the general rule of section 353, Cr.P.C. In this case the trial court issued warrants of arrest to procure the
attendance of the appellant for the purpose of his trial in impugned NAB Reference which were received
un-served and this alone cannot be equated with the evidence without fulfilling the conditions of Qanun-
e--Shahadat Order and Section 353, Cr.P.C and thus cannot be used for convicting the accused. Further,
no opportunity was afforded to the appellant, even otherwise no evidence was called for by the trial court
and he was convicted only on the basis of un-served process which is in sheer violation of Section 31-A
of the NAB Ordinance. Reliance is placed on the case law titled as Iqbal Ahmed Turabi v. State reported
in PLD 2004 SC 830.
9. As regards the submissions of learned Senior Special Prosecutor NAB that the instant appeal is not
maintainable as being barred by time, the same has no force at all, for the reason that since the judgment
convicting the appellant was passed in absentia and he had no knowledge of passing of the conviction
against him, therefore, the limitation would run from the date of gaining the knowledge by the appellant.
It is crystal clear that the moment the accused/appellant was arrested and he came to know about his
conviction in absentia, he challenged his conviction by filing the instant appeal.
10. In view of the facts and circumstances of the case, the prosecution has badly failed to prove that
the appellant had deliberately or intentionally evaded or avoided to appear before the trial court to face
the trial, as has been held by the Hon'ble apex Court time and again that the trial in absentia offends the
accused. Above all the provisions of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973
provides that "no person shall be deprived of life and liberty save in accordance with law", therefore, the
conviction and sentence awarded by the learned trial court to the appellant is not at all sustainable in the
eyes of law.
In the light of above discussion, we are inclined to accept this appeal, set a side the impugned order
dated 10th March, 2010 passed by the Accountability Court-I, Balochistan Quetta in Reference
No.10/2008 whereby the appellant Rasool Bakhsh son of Safar Khan was convicted under Section 31-A
of the NAB Ordinance.
MH/50/Bal. Appeal allowed.
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