' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Criminal Accountability Appeals Nos.15 of 2000, 47 of 2001, 4 of 2002, 21 of 2002, 43 of 2002, 62 of 2002, 4 of 2003, 5 of 2003, 13 of 2003, 14 of 2003, 15 of 2003, 4 of 2004, 11 of 2004 and 12 of 2004, as common questions of facts and law are involved.
2. Common facts for the purpose of present accountability appeals are that the Chairman NAB filed the references under section 18(g) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as "the Ordinance") against the appellants and other persons for offence punishable under section 10 of the Ordinance, out of which the present appeals have arisen. The appellants in their respective references were shown as absconders, therefore, the Accountability Courts issued non-bailable warrants for their arrest, to procure their attendance for the trial. The non-bailable warrants were not being served on various grounds. Ultimately, the trial Courts recorded the statements of process-servers. Thereafter, proclamations under section 87, Cr.P.C.
Were issued against the appellants that were duly published, directing them to appear before the Courts within 30 days of the publication of the proclamations. The appellants did not appear before the trial Courts, therefore, the orders for attachment of their properties were passed and proceedings under section 88, Cr.P.C. Were initiated. In some cases after publication of proclamations under section 87, Cr.P.C. And in some cases at the time of final judgments of the references, the trial Courts convicted the appellants in absentia under section 31-A of the Ordinance and sentenced each of them to suffer R.I. For three years. The trial Courts for convicting the appellants simply took into consideration the statements of process-servers, which were recorded for issuance of proclamations under section 87, Cr.P.C. Without framing the charge or adopting any regular or summary procedure of trial of offence. Based on such statements the trial Courts formed the opinion that the appellants had evaded, avoided the service of warrants or concealed themselves in order to save themselves from the proceedings and punishment under the Ordinance. The appellants were dissatisfied with the said judgments; therefore, they have impugned the same through the above appeals.
3. We have heard the Advocates for the appellants, Deputy Prosecutor-General, NAB, perused the record of this case and the law involved in the matter very carefully.
4. 'The learned Advocates for the appellants have stated that the appellants were tried in absentia without giving them any opportunity to defend themselves properly which violates the Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"); that the trial in absentia has been declared illegal by the Honourable Supreme Court of Pakistan in Gul Zaman Kasi v. State Criminal Appeal No,269 of 2003, decided on 11-10-2004. They have further argued that the appellants were convicted on the statements of process-servers which were recorded during the proceedings under section 87, Cr.P.C. That cannot be termed as evidence, according to law for convicting the appellants; that no regular procedure has been adopted for trial and convicting the appellants therefore, the convictions and sentences may be set aside.
5. On the other hand learned Deputy Prosecutor-General NAB has submitted that the Honourable Supreme Court of Pakistan in the above-referred authority has declared the trial in absentia as illegal but the judgment is not clear as to whether it was given in an appeal filed against conviction under section 31-A of the Ordinance, therefore, the same is not applicable, in the case. The learned Deputy Prosecutor-General after going through the connected Appeal bearing No,68-Q of 2003 conceded that the above-referred judgment of the Honourable Supreme Court of Pakistan is in respect of conviction under section 31-A of the Ordinance. However, he has further stated that the trial in absentia is permissible under Anti-Terrorism Act, 1997. He has further stated that under section 17(c) of the Ordinance the trial Courts were competent to dispense with the provisions of Cr.P.C. For the trial of any offence and can adopt any procedure as deem fit, therefore, the trial Courts found it proper to prosecute the appellants for offence punishable under section 31-A of the Ordinance in the manner as taken by them in these proceedings and then convicted the appellants, therefore, the procedure adopted by the trial Court is protected under the above- referred provision of law. Nevertheless, he has argued that in view of the decision of the Honourable Supreme Court of Pakistan he is unable to controvert the said judgment.
6. We have given due consideration to the arguments, gone through the material available on the record` and find that the accused were convicted in absentia. In some of the earlier enactments, the Legislature have allowed the Courts to try the accused in absentia after fulfilling certain conditions. The said provisions are available in Suppression of Terrorist Activities Act, 1975 and Anti- Terrorism Act, 1997. In both the enactments, a detailed procedure has been provided for the trial of accused who absconds because he evaded and avoided the service of warrants or concealed himself to screen himself from the proceedings and punishment. The procedure starts from the issuance of warrants, publication of proclamation in the newspapers, engaging an Advocate on State expenses or by the accused, framing charge, recording evidence allowing the Advocate to conduct cross-examination to the witnesses, hearing arguments, pronouncing judgment in the absence of the accused, setting aside judgment if accused appears before the Court after fulfilling certain conditions.
6-A. However, the Legislature while enacting the Ordinance, no such procedure has been provided for the trial and conviction of accused who absconds as he avoids service of warrants. Thus, the Legislature already knew that the accused can be tried and convicted in absentia, if so permitted and a detail procedure has been provided in the earlier enactments but the departure has been made in the Ordinance from the procedure mentioned in the said enactments. This clearly demonstrates the intention of the Legislature that the procedure for trial of accused or proceedings in absentia are not permissible under the Ordinance. It is the bounded duty of the Courts to carry out the intention of the Legislature while deciding the cases but it appears that the trial Courts did not pay any attention to this aspect of the case and tried the accused in absentia.
' The said trial violates the provisions of Article 9 of the Constitution that provides "No person shall be deprived of life and liberty save in accordance with law". Thus, the Constitution guarantees that no person would be deprived of liberty "save in accordance with law". The Honourable Supreme Court of Pakistan in the case of Gul Zaman Kasi A (supra) clearly held that trial in absentia is violative of Article 9 of the Constitution and as relied upon the case of Muharam Ali v. Federation of Pakistan PLD 1998 SC 1445. Thus, the convictions and sentences awarded to the appellants under the impugned judgments are liable to be set aside.
7. As regards the procedure, a perusal of various laws reveals that the laws can be categorized mainly in two categories (1) Substantive law (2) Adjective or procedural law. Under a substantive law acts and omissions have been made offences and punishable, such as Pakistan Penal Code.
Whereas the procedural law provides machinery for the punishment of offences against the substantive law, such as Code of Criminal Procedure, 1898. It is well-settled that a penal statute must be construed strictly; that is, nothing is to be regarded as within the meaning of the statute, which is not within the letters, which is hot clearly and intelligently described in the very word of the statute itself. Because the Courts are required to be more anxious to protect the liberty of the citizen and to see that, an innocent man does not suffer rather than consider questions of policy.
Where an act involves the freedom of the B citizen, the Court is unwilling to give a construction taking away such freedom. Whereas the procedural law or adjective laws are meant to be used in favor of the citizen and for furtherance of justice and not as a means of pressure. The Cr.P.C. Is a Code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Cr.P.C. Is to ensure that an accused person gets a full and fair trial along with certain well-established and well- understood lines that accord with our notions of natural justice. The Cr.P.C. Lays down the procedure to be followed in every investigation, inquiry into or trial for, every offence whether under the Penal Code or under any other law except in the cases where other laws provide any special procedure. Reference is invited to the cases of Ganash Narain 13 Bombay 590; Abdul Rahman 16 Bombay 580, Kola 18 Cal. 214; Lakshmi Chand 1901 PR 24; Bhupeiidra v. Secretary 51 Cr.L.J. 169; Javery v. Bhagwati 51 Crl.L.J.
736.
8. A perusal of the Ordinance shows that there are certain provisions that contain Substantive law, some provisions contain procedure law and some provisions contain substantive and adjective or procedural law. For example,. Section 30 contains both procedural and substantive laws. Sections 10, 31-A contain only substantive law. Section 17 contains only procedural law.
9. It is not out of place to mention here that when there is no provision to the contrary in the special or penal statute the procedure under the Cr.P.C. Will apply for trial of an offence under the said statute. The provision of Code of Criminal Procedure, which is self-contained Code for the holding of criminal trials, has been made applicable to the proceedings under the Ordinance as provided by section 17(a) of the Ordinance. However, where a special Act makes special offence and prescribes a special procedure for the prosecution of the offence prosecution not in accordance with that special procedure is barred. Nevertheless section 17(c) of the Ordinance authorises the Accountability Court to dispense with the procedure mentioned in the Cr.P.C. Including its procedure of Chapter XXII-A. It further authorises the Court to adopt any procedure as deems fit in the circumstances of the case on the condition that for dispensing with the said procedure the Accountability Court is required to record reasons for doing so. The section 17(c) reads as under:-- "(c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Accountability Court may, for reasons to be recorded, dispense with any provision of the Code and, follow such procedure as it may deem fit in the circumstances of the case."
10. Dispensation of provisions of Cr.P.C. And following any procedure does not mean that the arbitrary and capricious or the procedure against the natural justice should be adopted. The Judges should keep in the mind that the procedural law is not merely formalities because it affects the liberty of citizen. The Honourable Federal Court in the case of Abdul Sattar Molla v. Crown PLD 1953 FC 145, has held that the procedural requirements of Criminal Law are not mere formalities.
Underlying the rules of procedure is an all pervading care to ensure the liberty of the subject and due dispensation of justice.
11. The basic principle for trial of any offence is that the procedure of the trial should be in consonance with the natural justice, which is part and parcel of every statute if it is not excluded, expressly. In the cases of Province of East Pakistan v. Nur Khan PLD 1964 SC 451; Maker Wal Callierus Ltd. v. Government of N.-W.F.P. 1993 SCM R 1140; Superintendent of Police v. Abubakar 1972 SCM R 154 and Muhammad v. State PLD 1961 Kar. 709, it has been held that the principle: audi alteram partem (no person should be condemned unheard) is presumed to be included in every statute in the absence of any provision of contrary or if the action is going to affect any vested right of a person or opportunity of hearing cannot be taken away arbitrary without following the principles of natural justice.
11-A. The natural justice requires that the accused person should be tried by a competent Court. He should be told and clearly understands the nature of offence for which he is being tried. The case against him should be fully and fairly explained to him. He should be afforded a full and fair opportunity of defending himself. If substantial compliance with the outward forms of the law is made then, mere mistakes in procedure, mere inconsequential errors and omissions in the trial would be regarded as the venial by the Procedural Code and the trial would not be vitiated unless the accused could show substantial prejudice. It is pointed out that the intention of the Procedure Code is that they should not encourage the hindering of justice but all procedure is intended to help justice. Basic rule is that Criminal Courts exist for the administration of justice and the Courts have inherent powers to mould the procedure, subject to the statutory provisions applicable to the matter in hand, to enable them to discharge their functions as Courts of justice. The said power is not capriciously or arbitrarily exercised. It is exercised as debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. However, the Courts in the exercise of such inherent power must be careful to see that their decisions are based on sound general principles and are not in conflict with them or with the intentions of the Legislature as indicated in statutory provisions. Nevertheless, inherent powers cannot be exercised in matters for which the statute has made express provision and in a manner calculated to defeat the statutory provision. Because if the Criminal Procedure Code deals with any point specifically then the Code must he deemed to be exhaustive and the law must be ascertained with reference to its provisions.
However, when a case arises which obviously demands interference, and it is not within those for which the Criminal Procedure Code specifically provides, it would not be reasonable to say that the Courts had no power to make such order, as the ends of justice require. In the absence of any provision on a particular matter, the correct principle is that in matters of procedure, a particular procedure should be considered to be permissible if it is not prohibited. Thus, it is not open to the Court to travel outside the Criminal Procedure Code for finding a way to interfere with the liberty of the subject. Reliance has been placed on the cases of Zamir Qasim v. Emperor AIR 1944 All. 137; Imam 10 All. 150; Raghubhai v. Bai Arbinda AIR 1937 Cal. 334; Pulim Bhari Das 16 CWN 1105; Bhudhu Lal v. Chutta Gope 44 Cal. 816; Pigol v. Ali Muhammad AIR 1921 Cal. 30; Rahim Shaikh 52 Cal. 872 and Md. Majulal Haque v. Bisseswa r AIR 1940 3 Cal.
36.
12. In the present cases, the trial Courts have adopted a completely different procedure for the trial of offence under section 31-A of the Ordinance from the procedure provided under Chapter XXII-A or Chapter XXIT (summary trial) of the Cr.P.C. Thus, the trial Courts have deviated from the well- recognized procedure of the trial of the offences as mandated by section 17(b) of the Ordinance.
As such by virtue of the section 17(c) of the Ordinance the Courts were required to record reasons for dispensing with the procedure as provided in the Cr.P.C. Or section 17(b) of the Ordinance.
13. A perusal of the record reveals that the trial Courts did not pass any order dispensing with the procedure provided under the Cr.P.C. Or the procedure provided under section 17(b) for the trial of offence nor recorded any reason to dispense with the said procedure which is the most essential and precondition for dispensing with the procedure mentioned in the Cr.P.C. In the absence of any order or reason for dispensing with the provisions of Cr.P.C. The trial Courts were duty bound to adopt the procedure as provided under section 17(b) of the Ordinance. The said procedure is applicable to all offences under the Ordinance except the offences for which separate procedure is provided there under.
14. For trial of offence punishable under section 31-A no separate procedure has been provided under section 17(b) is required to be followed unless for reasons to be recorded, the said procedure is dispensing with. However, the trial Courts neither passed any order within the meaning of section 17(c) nor followed the procedure as provided under second 17(b) thereby committed gross illegality in trial of the cases. The said illegality cannot be cured under section 537, Cr.P.C.Because it has materially caused prejudice to the appellants and occasioned a failure of justice. Thus, on this account the procedure adopted by the trial Courts for the trial of offence punishable under section 31-A of the Ordinance, in violation of the procedure mentioned in the Cr.P.C. And section 17(b) of the Ordinance is liable to be set aside.
15. We are astonished to see that the trial Courts did not follow the procedure as provided under section 17(b) of the Ordinance in adopting the procedure of the trial of the cases. They have travelled beyond the scope of natural justice. They have violated the settled principles of law and justice, because justice requires that it should not only be done but it should manifestly be seen to be done. The procedure adopted by the trial Courts have infringed the Constitutional rights of the citizens particularly Article 9 that has adversely affected the liberty of citizens which is required to be guarded on all costs within the parameters of the Constitution and law.
16. As regards the reliance on the statements of process-servers, a perusal of Criminal Procedure Code reveals that the Code is divided into parts, chapters, some of them contain sub-chapters and the chapters and sub-chapters contain various sections. The chapter contains heading which gives the intention of the Legislature about the scheme of that chapter. The basic rule for interpretation of the statute is that the sections falling within the chapter should be interpreted with reference to the matters dealt with by the Chapter. In 33 Cal. (D.B.) and 5 Bombay H.C.R. (Cr) 69
(FB) (Criminal Procedure Code by Shoukat Mehmood Edition 2003, page 3) it has been observed that the division into chapters is an organic feature of the Criminal Procedure Code and all the sections falling under one chapter must be interpreted as having reference exclusively to matters within the purview of that chapter.
17. Keeping in view the scheme of the Code, it will be noticed that the Chapter-VI, of Part-III, Cr.P.C.
Deals with the process to compel the appearance of any person. This chapter is divided into five sub-chapters i,e, A to E, having sections from 68 to 93-C, sub-chapter "A" deals with summons; sub-chapter "B" deals with warrant of arrest; sub-chapter "C" deals with proclamation and attachment; sub-chapter "D" deals with other rules regarding process; and sub-chapter "E" deals with special rules regarding the process issued for service or execution outside Pakistan and process received from outside Pakistan for service or execution within Pakistan. Thus, all the provisions contained in subchapters "A" to "E" should be interpreted having reference exclusively to the matters of process to compel the appearance of any person which is the heading of chapter- VI, Cr.P.C.
18. Sub-chapter "C" deals with proclamation and attachment, having only three sections from sections 87 to 89. Section 87 deals with issuance of proclamation for a absconding person. The main condition, for issuing proclamation under the said section, is the satisfaction of the Court after recording the evidence that any person against whom a warrant was issued, has absconded or concealed himself so that such warrant could not be executed. After such satisfaction the Court publishes a written proclamation requiring the said person to appear at a specified date, place and time not less than 30 days from the date of the publishing of such proclamation. As such for issuing proclamation the Court is required to issue a warrant of arrest for the accused. Thus, for procuring the attendance of an accused person warrant of arrest is required to be issued.
19. In the present cases the trial Court issued warrants for the arrest of the appellants to procure their attendance so that the trial concerning main offence in the reference may commence against them. As the warrants were not being served, therefore, the statements of the process- servers were recorded to issue proclamations as required under section 87, Cr.P.C. And thereafter the attachment of property of the accused persons. Thus, the proceedings were initiated to compel the appellants to appear before the Court. In order to achieve that object, the warrants were issued to procure their attendance. The statements of the process-servers were recorded to issue proclamations under section 87, Cr.P.C. Enabling the Courts to attach the property of the accused so as to compel the accused to appear before the Court. These proceedings were initiated for the above-referred purpose and not for convicting the accused persons. Therefore, both the proceedings should not be mixed up together.
20. The trial Courts while convicting the appellants have relied upon the statements of process- servers, which were recorded for issuance of proclamations under section 87, Cr.P.C. And in some of the cases the proceedings under section 512, Cr.P.C. Were ordered. As already observed that these proceedings were initiated in respect of procuring the attendance of the accused persons.
These proceedings were not in respect of trial of offence under section 31-A of the Ordinance. For proving the offence under section 31-A, the prosecution is required to prove essential ingredients of the said section. Section 31-A reads as under:-- "Absconding to avoid service of warrants.--- Whoever absconds in order to avoid being served with 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 himself to screen himself from the proceedings or punishment under this Ordinance shall be guilty of an offence punishable 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."
21. Section 31-A makes absconding, seeking to avoid service of a process, an offence. The object of the section is to punish the offender for his disobedience in seeking to avoid the service of process issued under the Ordinake by the (1) Court, (2) any other authority (3) or officer. The main ingredients are that the process has actually been issued and the accused knew or had reason to believe that this was the case. Thus, the essence of the offence is the intentional evasion of service of process and there must, therefore, be knowledge of the issuance of the process and absconding, seeking to avoid receipt of the process. It will be further noticed that at two stages, this offence can be committed; (1) before the filing of reference, (2) after filing the reference. If the process issued by any other authority or officer (which is always issued before the filing of the reference) is disobeyed in the manner mentioned in the section then the said offence can be included in the main reference along with other offence. If the process issued by the Court after filing the reference and during pendency of reference, is disobeyed in the manner mentioned in the section, then the Court can try the accused because the offence was committed in the reference on which the Court had already taken cognizance. The Court is always competent to include an offence in charge which is made out from the facts and circumstances of the case. If it is made out after recording some evidence, then by amending the charge. For that no separate police report is required. Further the abscondence in seeking to avoid the service of process is an obstruction to the due process of the Court, that is a contempt of Court as defined under section 16-B of the Ordinance, for that no separate reference is required.
22. A bare reading of the 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 being served with such process, fourthly, the manner in which he evaded or avoided the service on himself or concealed himself with intention to screen himself from the proceedings or punishment under the Ordinance.
23. The above mentioned ingredients are issues of facts that can be proved by leading evidence in accordance with the provisions of Qanune-Shahadat Order. Under which 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. Thus, the trial Courts recorded the statements of process-servers to procure the attendance of the appellants for the purpose of their trial in the main reference that cannot be equated with the evidence without fulfilling the conditions of Qunan-e-Shahadat Order and section 353, Cr.P.C. Therefore, the same cannot be used for convicting the accused.
24. Recently the Honourable Supreme Court of Pakistan in the case of Iqbal Ahmed Turabi v. State PLD 2004 SC 830 maintained the conviction awarded under section 31-A of the Ordinance in respect of two accused persons who were convicted for the said offence by the Administrative Judge, Accountability Courts, Karachi. The facts of the case are that the Chairman, NAB filed a Reference before the Administrative Judge, Accountability Courts, Karachi against five accused persons for, offence punishable under section 10 of the Ordinance. Two of the accused persons namely Hassan Raza and Asif Hussain were absconders. The Administrative Judge issued non- bailable warrants for their arrest but they could not be served therefore, after recording the statement of process-server, he issued proclamation under section 87 and attachment of property under section 88, Cr.P.C. And also ordered for proceedings under section 512, Cr.P.C. Against them.
In the meantime, both the accused persons surrendered themselves before this Court and obtained a bail before arrest. Thereafter they appeared before the trial Court where they were tried for offence punishable under section 10 of the Ordinance by framing the charge against them. In the said charge both the accused persons were also charged for an offence punishable under section 31-A of the Ordinance. The prosecution led evidence in support of the main charge and on the charge under section 31-A. After concluding the evidence of the prosecution, the statements of both the accused persons were recorded under section 342, Cr.P.C. They were given opportunity to lead defence and to record their statements on oath. After complying the said provisions, arguments were heard and thereafter, the accused Hassan Raza was convicted for offences punishable under section 10 and under section 31-A of the Ordinance and sentenced to suffer R.I.
For five years and three months respectively. The accused Asif Hussain was acquitted from the main charge but he was convicted under section 31-A of the Ordinance only and sentenced to suffer R.I. For three months. Both the accused persons challenged their convictions before this Court but their appeals were dismissed by maintaining the conviction and sentence awarded to them by the trial Court. They preferred appeal before the Honourable Supreme Court of Pakistan that met with the same result. Thus, the procedure adopted by the Administrative Judge, Accountability Courts, Karachi for the trial of offence punishable under section 31-A of the Ordinance was found to be in accordance with law, therefore, this Court and the Honourable Supreme Court of Pakistan maintained the said conviction and sentence. The procedure adopted by the Administrative Judge was in consonance with the Chapter XXII-A of Cr.P.C. That was permissible under section 17(b) of the Ordinance for trial of all offences except the offences for which separate procedure is provided for trial of such offence.
25. As regards the time-barred appeals, we have noted that Appeals Nos.4 of 2002, 43 of 2002, 5 of 2003, 14 of 2003, 15 of 2003 and 4 of 2004 are time-barred because under section 32 of the Ordinance an appeal is to be filed within 10 days of the final judgment but the above appeals have been filed beyond that period. The appellants have filed applications under section 5 of Limitation Act to condone the delay. The learned Advocates for the appellants appearing in the above mentioned appeals have admitted that the appeals are time-barred but argued that as the judgments are void, therefore, no time limit will run against 'the appellants for filing the appeals, as such, the delay may be condoned.
26. As regards the applications under section 5 of Limitation Act filed in the above appeals, they are not maintainable as the time prescribed under section 32 of the Ordinance is 10 days which is different from the time prescribed under the Limitation Act for filing such appeals. Section 29 of Limitation Act provides that where any special Act prescribes a different time for filing an appeal from the time prescribed under Limitation Act then section 5 of Limitation Act will not be applicable unless it is specifically made applicable. Under the Ordinance, there is no provision by which section 5 of Limitation Act has been made applicable in the proceeding under the Ordinance. As such in the present circumstances of the case the section 5 of Limitation Act is not applicable in the present appeals. Reliance is placed on the case of Abdul Qadir v. Atiq Ahmed PLD 2004 Kar.
555.
27. In the light of our discussion on various aspects of the case we agree with the submissions made by the learned Advocates for the appellants that the judgments passed by the trial Courts in the above mentioned appeals are void ab initio, particularly a trial in absentia is not a-trial within the meaning of law. Similar point was considered by the Honourable Supreme Court of Pakistan in the case of Muhammad Shafi v. Mushtaq Ahmed 1996 SCM R 856 and it was observed that if the order or judgment is void then bar of limitation can be ignored. At page 860 it has been observed as under:-- "Learned Judge in High Court appears to have overlooked the difference between void orders and erroneous orders. Bar of limitation may be ignored in respect of void orders but not in respect of erroneous orders. The question of limitation may not arise in respect of judgments which are nullity in law, void or ultra vires. As a matter of fact if A order is without jurisdiction and void, it need not be formally set aside as held in cases of Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37 and Ch. Altaf Hussain and others v. The Chief Settlement Commissioner PLD 1965 SC 68 and Sayed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294. In Malik Khawaja Muhammad and others v. Marduman Baber Kahol and others 1987 SCM R 1543 a learned Bench of this Court observed below:- ' As respects the question of limitation, the learned High Court found that the decree in the suit having been passed in utter contravention of the mandatory provisions of law such order was nullity against which no limitation could run. In support of said observation reliance was placed on Mst. Rehmat Bibi and others v. Punun Khan and others 1986 SCM R 962. It was held by a learned Bench of this Court in the case of Allah Dino v. Faqir Muhammad PLD 1969 SC 582 that if an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eye of law and no question of limitation would arise. The case of Allah Dino was followed in the case of Mst. Rahmat Bibi 1986 SCM R 962."
28. Following the above dictum, the point of limitation is ignored.
29. In Criminal Appeal No,4 of 2004 Mr. A.Q. Halepota, Advocate for the appellant has argued that at the time of filing the reference the appellant was out of country but the trial Court has declared him absconder on the statement of process-server who also reported to the trial Court that the appellant had already left the country; that the appellant cannot be said to have violated the orders of the trial Court as such he has committed no offence. He has relied upon a case of N.M.V.
Vellayappa Chettiar v. Alagappa Chettiar reported in AIR 1942 Mad.
289. The learned D.P.G. Could not controvert the above position.
30. It is an admitted fact that when the reference was filed at the time the appellant was out of country. At that time there was no order of the Court for the arrest of the appellant as such the question of disobedience of order, which was not in existence, does not arise. The section 31-A also speaks of a situation after the process is issued by the Court and not before that. The wording of section 31-A are to the effect: "Whoever absconds in order to avoid being served with any process issued by any Court of any other authority or officer under the 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 the Ordinance shall be guilty of an offence". The provision is penal in nature; therefore, it is to be construed strictly. As the appellant was out of country, first point for consideration would be to see as to whether he can be served there or not.
The validity of non-bailable warrants issued by Pakistani Courts is throughout Pakistan; therefore, it can be executed only within the territory of Pakistan. Section 82 of Criminal Procedure Code deals with this subject which also provides that the warrant can be executed at any place in Pakistan.
The said section reads as under:-- "Where warrant may be executed.--- A-warrant of arrest may be executed at any place in Pakistan."
31. When the appellant was out of Pakistan then the warrant issued by the trial Court cannot be executed outside the territory of Pakistan except in the manner provided under section 93-B, Cr.P.C.
Had the appellant been in Pakistan and had he left the country after getting knowledge of issuance of warrants by the trial Court or had he evaded the service of such warrant within the territory of Pakistan then he could have been declared absconder within the meaning of section 87, Cr.P.C. The position is different in this case as the applicant was out of Pakistan at the time of issuance of warrants. However, such warrants can be executed outside Pakistan as provided under section 93- B, Cr.P.C. The said section reads as under:- "(93-B. Sending of warrants for execution outside. Pakistan.- Notwithstanding anything contained in section 82, where a Court in (Pakistan) desires that a warrant issued by it for the arrest of an accused persons shall be executed at any place outside (Pakistan) within the local limits of the jurisdiction of a Court established or continued by the authority of the (Federal .Government). (in exercise of its foreign jurisdiction), it may send such warrant, by post or otherwise, to the Presiding Officer of that Court to be executed."
32. From the above provision it is clear that the warrants of Pakistani Courts can be executed outside the territory of Pakistan by a Court established or constituted by the authority of the Central Government in exercise of its foreign jurisdiction. Thus, a warrant issued by a Court in Pakistan can be executed by such Court if established. There is nothing on the record to suggest that such Court was created or warrants were sent to such Court for execution. Similar point was discussed in the authority referred to by the learned Advocate for the appellant and another authority of Muhammad Ramzan v. State 1991 PCr.LJ 2059 in which it has been clearly observed that if alierson is outside the country before the occurrence then he cannot be declared as absconder and proclamation under section 87, Cr.P.C. Was held to be without jurisdiction. As such the appellant cannot be declared absconder even for the purpose of proclamation and attachment of property under sections 87 and 88, Cr.P.C.
33. Thus, a person cannot be declared absconder even for the purpose of issuing proclamation wider section 87, Cr.P.C. If he had already left the country or had no knowledge of issuance of NBWs against him by the Court. However, the proclamation under section 87 and attachment of property under section 88, Cr.P.C. Are not the subject-matter of the appeals, therefore, no further discussion is required to be made.
34. In the light of what has been discussed above, the appellants are directed to appear before their trial Courts as and when required by the said Courts for further proceedings in accordance with law.
35. Above are the reasons of our short order, dated 25-11-2004 byiM which we had allowed the appeals in the following manner:- ".... For the reasons to be recorded separately-the conviction for offence under section 31-A of the National Accountability Ordinance being based on trial in absentia are set aside. In Appeal No,21 of 2002 the appellant is in custody. He may be set at liberty if not required in any other case. In all other appeals in which the appellants are on bail and have furnished surety, their bail bonds are cancelled and sureties are discharged. The appeals stand disposed of in the above manner but this order shall not be construed to preclude the trial Court from taking any proceedings in accordance with law and adopting a legal procedure of trial for the purpose of any offence which is punishable under section 31-A of the NAB Ordinance. The Constitutional Petition No,1023 of 2004 may now be fixed before the relevant Bench on 2-12-2004."