2017 Y L R 1706
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ
WALI MUHAMMAD ---Petitioner
Versus
DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU and 2 others ---
Respondents
Constitution Petition No.272 of 2016, decided on 19th May, 2016.
Criminal Procedure Code (V of 1898) ---
----S. 497--- National Accountability Ordinance (XVIII of 1999), S. 31- A---Corruption and
corrupt practices ---Bail, grant of ---Rule of consistency ---Prosecution case was that principal
accused got regi stered five vehicles in favour of accused -petitioner and co- accused on the basis
of fake documents of purchase in auction and assessment sheets ---Said act of principal accused
was violation of codal formalities and Standing Orders of the Board of Revenue ---Investigation
was initiated against the accused -petitioner and co -accused but they absconded---Accused -
petitioner and co- accused were recommended to be tried for an offence defined as corruption and
corrupt practice ---Accused -petitioner and co -accused aft er being declared proclaimed offenders
had been convicted under S.31- A of the National Accountability Ordinance, 1999 and sentenced
to imprisonment for three years ---Record showed that co -accused was admitted to bail by High
Court and his conviction was se t aside with direction to the Trial Court to frame separate charge
under S. 31 -A National Accountability Ordinance, 1999---While passing conviction against the
accused -petitioner neither any separate charge was framed against him nor any evidence was led
by prosecution to establish that he was intentionally avoiding the service of process of the court
thereby committed offence under S. 31 -A National Accountability Ordinance, 1999 ---Accused -
petitioner was not convicted according to law because the pre -requis ites of fair trial were not
provided to him ---Admittedly, co -accused was admitted to bail by High Court after setting aside
his conviction in absentia, therefore, principle of equity demands that alike shall be treated alike -
--Regardless of the merits of t he case on basis of absconsion alone, accused- petitioner could not
be denied the concession of bail;, particularly when it was yet to be determined as to whether any
notice was ever served upon him or the accused -petitioner intentionally evaded justice and
avoided to appear before the Trial Court ---Accused -petitioner was admitted to bail in view of
principle of consistency.
Arbab Khan's case 2010 SCMR 755 rel.
Mujeeb Ahmed Hashmi, Khushal Khan Kasi and Saifullah Kakar for Petitioners.
Riaz Akhtar Tareen, Additional Deputy Prosecutor General National Accountability
Bureau (NAB) for NAB Balochistan.
Date of hearing: 19th May, 2016.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- Through the Constitutional
Petition No. 272 of 2016 the following relief has b een sought: --
"It is, therefore, respectfully prayed that the petitioner may kindly be admitted to bail in
such sum which this Hon'ble Court deems fit and proper in the circumstances of the case,
in the interest of justice."
Whereas the Criminal Ehtesab A ppeal No. 04 of 2016 has been filed against the order
dated 08.03.2007 passed by the Judge Accountability Court -I, Quetta ("trial court") whereby the
petitioner after being declared proclaimed offender has been convicted under Section 31- A of the
National Accountability Ordinance, 1999 ("NAO") and sentenced to suffer rigorous
imprisonment for a period of three years.
In both the above -mentioned cases common questions of fact and law are involved,
therefore same are being disposed of through this common judgment.
2. The facts of the case as narrated in the Reference No.14 of 2006 are that the principle
accused viz. Ulfat Naseem who at the relevant time was serving as the Excise and Taxation
Officer Hub registered five vehicles mentioned in the aforesaid reference in favour of the
petitioner and co- accused persons named in the reference on basis of fake documents of purchase
in auction and assessment sheets in violation of Codal formalities and standing orders of the
Board of Revenue Government of Balochistan Quetta; that thereafter investigation was initiated
against the petitioner and co- accused persons but they all absconded; that in view of the
investigation/inquiry conducted by the NAB authorities the Chairman NAB Islamabad was of the
opinion that the peti tioner as well as the co -accused persons be tried for an offence defined as
corruption and corrupt practice under Section 9(2)(vi) of the NAO punishable under Section
10(a) of the NAO.
3. Learned counsel for the petitioner/ appellant contended that petitioner/appellant is in
custody and all the necessary documents are in custody of the NAB authorities, whereas
reference has also been filed before the concerned court, therefore the question of tempering the
evidence absolutely does not arise and physical cus tody of the petitioner/appellant is no more
required for the purpose of investigation. He also referred to order dated 24.05.2012 passed by
this court in Criminal Ehtesab Appeal No. 05 of 2012 filed by the co- accused Abdul Aleem,
whereby the following orde r was passed: --
"Thus, in view of what has been stated above, the impugned order dated 20th June, 2007
passed by learned Accountability Court -I, Balochistan Quetta is set aside. The trial Court
is directed to frame charge under section 31 -A of the Ordinanc e against the petitioner and
thereafter to provide opportunity of proving and disproving the allegation to the parties
and thereafter to decide the matter strictly in accordance with law."
He added that nature of allegation and the set of evidence against all the accused persons
nominated in the reference is/was the same, therefore, involvement of the petitioner requires
further probe, which cannot be established without leading the evidence. He finally urged that
the alleged liability of the petitioner if any, is yet to be proved by the prosecution, which brings
the case against him calling for further inquiry within the ambit of section 497(2), Cr.P.C.,
therefore, under the circumstances the petitioner becomes entitled to be admitted to bail. The
learned counsel main -tained that the appellant neither avoided nor evaded service of any notice/
process or concealed himself from appearing before the court, therefore the impugned order does
not stand to any reason.
4. Mr. Riaz Akhtar Tareen, the learned Additio nal Deputy Prosecutor General NAB has
strongly opposed the bail and contended that sufficient incriminating evidence has been collected
against the petitioner, which prima -facie disentitles him for the relief claimed. He vehemently
urged that because of commission of the offence by the petitioner, a huge loss to the public
exchequer had been caused. It was also contended that since the petitioner has failed to make out
the case of further inquiry, therefore, the concession of bail cannot be extended to him. He
prayed that the petition may be dismissed. The learned ADPG further contended that the willful
absconsion of the appellant is proved on record, who in order to evade the process of the court
was intentionally concealing himself, therefore was rightly c onvicted and sentence under Section
31-A of the NAO; therefore he is not entitled for the relief claimed.
5. We have heard the learned counsel for the petitioner, the learned ADPG, NAB and have
also gone through the record.
6. The Section 31- A of the NAO deals with the trial of proclaimed offender in absentia,
therefore the provision being relevant is reproduced here under: --
"31- A. Absconding to avoid service of warrants . (a) Whoever absconds in order to
avoid being served with any process issued by any C ourt or 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 himself to screen himself from the proceedings or
punishment under this Ordinance shall be guilty of an offence under this Ordinance
punishable with imprisonment which may extent to three years notwithstanding the
provision of sections 87 and 88 of Code, or any other law for the time being in force.
(b) Notwithstanding the provisions of Section 18, it sha ll not be necessary to file a
reference under this section in cases where a reference is pending before the Court."
The perusal of record and order sheets maintained by the trial court shows that on receipt
of reference, initially notices were issued to t he appellant, due to his non- appearance his bailable
warrants of arrest were issued and on account of ineffective service his non- bailable warrants
were issued. The warrants could not be executed upon the appellant; therefore, the proceeding,
under section 87, Cr.P.C. was directed to be initiated against him.
That on ineffective service a proclamation was issued to be published in three daily
newspapers and same was also directed to be affixed at the residence of the petitioner/appellant.
7. The proclamati on was published on 04.02.2007 in three daily newspapers namely Daily
Mirror, Daily Jang and Daily Zamana Quetta but the petitioner/appellant did not turn up to face
the trial, therefore, having found him guilty for willful absconsion to avoid service of t he notice,
the court convicted and sentenced the petitioner/appellant under Section 31- A of the NAO to
suffer three years rigorous imprisonment. The sentence of imprison- ment was directed to
commence from the date of arrest of the petitioner/ appellant. Su ffice is to add here that in
reference No. 14 of 2006 the principle accused Ulfat Naseem was convicted vide judgment dated
19.10.2009 passed by the trial court under Section 9 of the NAO and sentenced to suffer five
years rigorous imprisonment with fine of Rs.30,000/ - and in default thereof he was further
directed to suffer simple imprisonment for one year. The principal accused was also directed to
pay Rs.20,22,646/ - in lieu of loss caused to the national ex -chequer, while to the extent of
absconding co- accused person; including the petitioner/appellant the case was directed to be kept
in dormant till their arrest.
8. The record shows that the principal accused Ulfat Naseem after dismissal of his appeal
from this court, assailed his conviction and sentence recorded by the trial court before the
Hon'ble Supreme Court; that due to pendency of his appeal, the original record of the case was
also summoned by the Hon'ble Supreme Court, therefore, due to non- availability of the judicial
file record no proceedings could have been initiated against the absconding accused Abdul
Aleem was arrested in the meanwhile. However, this court vide order dated 24.05.2012 passed in
Constitutional Petition No. 361 of 2012 admitted the co- accused Abdul Aleem to bail subject to
furnishing surety to the tune of Rs. 500,000/ -.
The co -accused Abdul Aleem had also assailed his conviction and sentence recorded
against him by the trial court under Section 31- A NAO in Criminal Ehtesab Appeal No. 05 of
2012, wherein vide order dated 24.05.2012 passed by this court after setting aside the judgment
of the trial court the accused was admitted to bail subject to furnishing surety in the sum of Rs.
100,000/ - with direction to the trial court to frame a separate charge under Section 31 -A NAO
and to decide the matter afresh strictly in accordance with law after providing a fair opportunity
to the parties. The copies of order sheets submitted by the learned ADPG NAB show that due to
non-availability of judicial file/record the trial court vide orde r dated 10.08.2012 adjourned the
case sine die till receipt of the file from the Hon'ble Supreme Court.
9. The learned ADPG NAB has also filed a copy of charge dated 18.05.2016 framed by the
trial court against the petitioner/appellant, while the process w as also issued against the co -
accused Abdul Aleem. It is observed with grave concern that co- accused Abdul Aleem was
admitted to bail vide this court order dated 24.05.2012 but instead of initiating the proceedings
against him, the case was adjourned sin die and the prosecuting agency did not bother to request
the court for reinitiating the trial. However after the arrest of petitioner/appellant in this case and
after framing the charge, the process has been issued against the co -accused Abdul Aleem. The
manner and procedure adopted by the prosecuting agency is highly disapproved. Even till date
the agency is not in a position to make a clear statement in respect of the status of the appeal
filed by the principle accused Ulfat Naseem before the Hon'ble Supreme Court.
In Criminal Ehtesab Appeal No. 04 of 2016 the petitioner/appellant has assailed the
conviction and sentenced recorded against him under Section 31 -A of the NAO vide order dated
08.03.2007 while in C.P. No. 272 of 2016 bail has been sought by the petitioner appellant in
NAB Reference No. 14 of 2006.
10. The trial and conviction in absentia was initially introduced by the promulgation of Anti -
Terrorism Act, 1997 on 20th August 1997 and its Section 19 (10) provides that "any person may
be tried in his absence, if the Anti -Terrorism Court after such inquiry as it deems fit, is satisfied
that such absence is deliberate and brought about with a view to impeding the course of justice:",
whereas the willful absconsion is punishable under Section 21- L of the Anti -Terrorism Act, 1997
("ATA, 1997"), while the NAO was promulgated on 16th October 1999, which also contains the
provision of Section 31- A, whereby the willful abscondence was included as a distinct offence.
The proposition regarding the trial in a bsentia under the Anti -Terrorism Act, 1997 came
for hearing before the Hon'ble Supreme Court of Pakistan in Arbab Khan's case reported in 2010
SCMR 755 whereby it is held as follows: --
"Having heard the learned counsel for the parties and perusing the reco rd. We find that
the proceedings under Sections 87 and 88 of Cr.P.C. were initiated for the purpose of
proceeding with the case in absentia, thereafter the charge was framed for other offences
except Section 21 -L of the Act. The record further reveals that no evidence was recorded
to prove the ingredients of Section 21- L of the Act. No point for determination
concerning the offence under Section 21- L of the Act was framed in the judgment by the
trial Court. There is no discussion in the impugned order and i n the judgment of the trial
Court with regard to any evidence available on record. In cursory manner, the learned
trial Court convicted and sentenced the appellant for the said offence. Thus, the
procedure adopted by the trial Court in convicting and sente ncing the appellant is not
warranted by law and illegal."
Since both the provisions of section 19(10), punishable under section 21- L of ATA 1997
and section 31 -A of the NAO are homologous in nature, therefore, the principle settled by the
Hon'ble Supreme Court can also be followed, while dealing with the conviction recorded under
Section 31- A of the NAO.
11. The perusal of impugned order reveals that, while passing conviction against the
appellant the trial court did not record any evidence in respect of his willful absconsion and even
no charge was framed against him. Even, no evidence was recorded produced to establish his
willful absconsion.
Perusal of record further reveals that initially warrants of arrest of the petitioner along
with absconding accus ed persons were issued and forwarded to the officer Incharge of the Police
Station Chaman but same could not be executed therefore, the statement of process server
namely Umer Hayat SI was recorded, which indicated that the petitioner/appellant has abscond ed
to unknown place and was not traceable. After statement of the process server proclamation
under Section 87, Cr.P.C. was issued which was also affixed at the residence of the
petitioner/appellant as well as on the notice board of the concerned police st ation.
As discussed herein above that neither any separate charge was framed against the
appellant nor any evidence was led by the prosecution to establish that the appellant was
intentionally avoiding the service of process of the court and he, thereby c ommitted an offence
under section 31- A of the NAO. It is entirely possible that the accused did not present himself
before the court due to lack of information but not to deliberately evade justice, as according to
him he was not aware of the fact that a R eference had been filed against him. The question
whether appellant was aware about the case or he was unaware cannot be resolved without
leading the evidence on that particular point.
12. The Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitu -tion") is a
living document, wherein the right of fair trial is guaranteed under Article 10- A, which stipulates
as under: --
"10- A. Right to fair trial .---For the determination of his civil rights and obligations or in
any criminal charge against him a person shall be entitled to a fair trial and due process."
The petitioner/appellant was not convicted according to law because the pre- requisites of
fair trial were not provided to him, thus the procedure adopted by the trial court was not in
accordanc e with law and Articles 9, 10 and 10- A of the Constitution have also been violated.
Therefore, conviction recorded against the appellant would not be sustainable in view of dictum
laid down by the Hon'ble Apex Court.
13. While considering the plea of bail sought by the petitioner/appellant in the main case, it is
imperative to observe that the appeal filed by the principle accused Ulfat Naseam is pending
before the Hon'ble Supreme Court, while co- accused Abdul Aleem was admitted to bail by this
court after setting aside his conviction in absentia, therefore, principle of equity demands that
'alike shall be treated alike' and in view of the fact that the original file/record has been
forwarded to the Hon'ble Supreme Court, the petitioner appellant cannot be kept behind the bars
for indefinite time. Regardless of the merits of the case on basis of absconsion alone the
petitioner/appellant cannot be denied the concession of bail, particularly when it is yet to be
determined as to whether any notice was ever serv ed upon him or the petitioner/appellant
intentionally evaded justice and avoided to appear before the concerned court.
14. In view of above reasons the Criminal Ehtesab Appeal is accepted. Consequently the
conviction and sentenced recorded against the peti tioner/appellant under Section 31- A of the
NAO is set aside. The case is remanded to the trial court. Since the offence under section 9(a)
(iv) punishable under Section 10(a) of the NAO and, the offence under Section 31- A NAO are
distinct in nature therefo re, the trial court is directed to decide the matter afresh after framing
charge in respect of both the offence and affording fair opportunity to the parties to lead the
evidence strictly in accordance with law.
15. As regards Constitutional Petition No.272 of 2016 wherein the petitioner/ appellant has
sought bail in NAB Reference No. 14 of 2006 in view of principle of consistency the
petitioner/appellant is admitted to bail in NAB Reference No. 14 of 2006 in respect of offence
under Section 9(a)(iv) punishable under Section 10(a) of the National Accountability Ordinance,
1999 subject to furnishing surety in sum of Rs. 500,000/ - (rupees fives hundred thousand only)
with PR bond of like amount to the satisfaction of the Additional Registrar of this Court.
JK/51/Bal Appeal accepted.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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