' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal. Accountability Appeals Nos.
60, 61 & 62 of 2001; 2, 5, 6, 7, 24, 38, 42, 67, 68 of 2002; 17, 19 of 2003; and 4, 5, 6 of 2005, 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 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 wereshown 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 proclamation under section 87, Cr.P.C. And in some cases at the time of final judgments of the references, the trial Court convicted the appellants in absentia under section 31-A of the Ordinance and sentenced each of them to suffer R.I. For three years.
3. 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 for trial of offence.
Based on such statements, the trial Courts formed 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.
4. We have heard the Advocates for the appellants, Deputy Prosecutor General NAB, perused the record of these cases and the law involved in the matters very carefully.
5. It will be noted that in all the appeals the appellants have not surrendered before the Court either at the time of filing the appeals or at the later stage. In such a situation a preliminary point was raised about the maintainability of the appeals. The learned Advocates for the appellants have taken the stand that as the appellants have been convicted in absentia, therefore, the appeals are maintainable without surrendering the appellants because the appeals are in continuation of the proceedings of the trial Courts. They have relied upon a case of Muhammad Ashfaq v. The State (1998 PCr.LJ 1486). Conversely the learned DPGA has stated that the case of Muhammad Ashfaq Chief is no more a good law in view of decision given by this Court in the case of Muhammad Jamil Ahmed v. The State (SBLR 2005 Sindh 1146) which is based on the 'decisions of Supreme Court on the above point. He has further contended that as the appellants were not present before the Court at the time of filing the appeals or they surrendered before the Court thereafter till the hearing of appeals, therefore, they have lost the right of hearing and theAdvocates on behalf of persons who are fugitive from law and absconders have no right to file appeals on their behalf, hence the appeals are not maintainable. He has relied upon the case of Gul Hassan v. State (PLD 1965 SC 89).
6. The case of Muhammad Ashfaq (supra) decided by a Division Bench of this Court was considered by another Division Bench of this Court in the case of Muhammad Jamil Ahmed (supra). After considering the various judgments of Hon'ble Supreme Court delivered in the cases of Hayat Bakhsh v. State (PLD 1981 SC 265); Gul Hassan v. State (PLD 1965 SC 89); Gul Hassan v.
State (PLJ 1982 295) and Chan Shah v. Crown (PLD 1956 FC 43), it was found that the view taken in the case of Muhammad Ashfaq was not supported by the above decisions of Supreme Court and Federal Court, therefore, it was not followed. The view taken in the case of Muhammad Jamil Ahmed was that the appeal filed on behalf of convict/absconder without surrendering to the process of law after their conviction was not maintainable.
7. In the present appeals, the appellants were convicted in absentia. They did not surrender to the process of law. They were not present at the time of filing their appeals. Their appeals have been filed by their Advocates on their behalf. These facts and circumstances were fully discussed in the above mentioned authorities of Supreme Court and this Court in the case of Muhammad Jamil Ahmed held that appeals were not maintainable. The said rule is fully applicable to the facts and circumstances of the present appeals.
8. In view of above authorities of Hon'ble Supreme Court and reasons discussed in the case of Muhammad Jamil Ahmed, we are of the considered view that the appeals are incompetently filed and not maintainable.
8A. As the appellants have not surrendered to the due process of law, therefore, they have lost the right of hearing, hence they cannot be heard. However, on the last date of hearing it was brought to the notice of the Court that the judgments are void ab initio, therefore, all the learned Advocates who were appearing on behalf of the appellants and learned DPGA were asked tc assist the Court on the said point.
9. The learned Advocates have contended that the impugned judgments are void judgments; therefore, they are not in existence in the eye of law as held in the case of Noor Muhammad Khatti v. The State (2005 PCr.LJ 1889), therefore, they are liable to be set aside. They have further stated that the difference between the case of Noor Muhammad Khatti (supra) and the present appeals is that in the reported case the appellants after their conviction in absentia for offence punishable under section 31-A of the Ordinance had surrendered beforethe Appellate Court at the time of filing appeals whereas in the present appeals, the appellants after their conviction under section 31-A, of the Ordinance have not surrendered before the Court. They have further argued that as the Presiding Officers of the Accountability Courts have passed the judgments in abuse of the process of the Court, therefore, some authority is required to declare such judgments as void and that authority is this Court, therefore, it is one of the duties of this Court to exercise suo motu jurisdiction and give such declaration and by doing so, if any relief can be granted to the appellants then that can be given to them. They have further stated that as the judgments are void, therefore, if some actions are taken or some orders are passed on the basis of such judgments, then all the actions and orders will be illegal. They have relied upon Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104). The learned DPGA has stated that the judgments are void judgments as held in the case of Noor Muhammad Khatti, therefore, they are required to be set aside after the same are brought to the notice of superior Court, by exercising suo motu jurisdiction of the Court.
10. In the present matters all the accused persons have been convicted in absentia, without any trial, relying upon the statements of process servers which statements were recorded for proceedings under sections 87 and 88, Cr.P.C. The Hon'ble Supreme Court in an unreported judgment delivered in Criminal Appeal No,269 of 2003, Gul Zaman Kasi v. State decided on 11-10- 2004 held that trial in absentia and conviction under section 31-A, of the Ordinance is violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. As such, on this ground alone the judgments are liable to be set aside.
11. The question involved in the present matters is whether or not the judgments are void; and, if so, whether the Court can set aside the same under Sou Motu jurisdiction by exercising inherent or Constitutional powers.
12. Void order has been defined by the Hon'ble Supreme Court in a case of Chairman, Distt.
Screening Committee v. Sharif Ahmed Hashmi (PLD 1976 SC 258) at page 263 as under:-- "The expression "void" in the strict and accurate sense means "absolutely null" that is to say, incapable of ratification or confirmation and of no effect whatsoever."
13. The Hon'ble Supreme Court has given the examples of void orders in a case of Ali Muhammad v.
Hussain Bakhsh (PLD 1976 SC 37) at page 39, it has been observed as under:- "On the question of limitation, the learned Judges referred to a number of decisions of this Court and held that if an order iswithout jurisdiction and void, then it need not be formally set aside. In Yousaf Ali v. Muhammad Aslam Zia and others (1) it was said by this Court, "where the legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the Authority making it, in the eye of the law such order being void and non-existent".
In Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (2), it was said that an order without jurisdiction is a nullity in law and it does not require to be set aside formally. Again in Sayed Ali Abbas and others v. Vishan Singh and others (3), it was observed that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused to relief and penalized for not throwing himself again by way of revision or review, on the mercy of authorities who were responsible for such excess."
14. In the case of Christian EDU-E. Trust v. Dy. Commissioner, 1987 SCM R 1189 it has been held that if an order is passed against the principles of natural justice then the order is nullity in law. In the case of Altaf Hussain v. Chief Settlement Commissioner (PLD 1965 SC 68), it has been held that if an order is passed without jurisdiction then it is nullity in law. In the case of Muhammad Ayub Khuhro v.
Pakistan (PLD 1960 SC 237), It has been observed that a void order is one, which is passed by an authority lacking jurisdiction. An order passed in complete disregard of mandatory provision of law is void order as held in Atta Muhammad Qureshi v. Settlement Commissioner (PLD 1971, SC 61) or was passed in violation of the rules of natural justice, Abul A'LA Maudoodi v. Government of West Pakistan, (PLD 1964 SC 673).
15. In the present matters, the judgments were passed without any trial as provided under the law and that, too, in absentia which is against the principle of natural justice and violative of the Article 9 of the Constitution under which the citizens have been guaranteed that they shall not be deprived of life and liberty save in accordance with law. Further, the trial Courts considered the statements of process servers whose statements were recorded for proceedings under sections 87 and 88, Cr.P.C. Their statements cannot be treated as evidence within the meaning of Qanun-e- Shahadat Order, 1984. The trial Courts had power to convict the accused in the manner provided by law and at the proper stage of the trial but the same has not been done, hence the judgments were passed in excess of the powers of the trial Courts, therefore, the same cannot be termed as final, neither anybody can plead the same to be final. Furthermore, the Court is required to pass a legal order only. The old rule that if any authority has jurisdiction to pass an order, then it can pass it rightly; and, wrongly has been modified to 'the extent that theauthority can pass an order, which is legal only. Reference is invited to Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others SCM R 1987 SC 447) and Rehmdil v. Province of Balochistan (1999 SCM R 1060). All the above points and other related points were considered in detail in the case of Noor Muhammad Khatti (supra) by this Court while setting aside the conviction under section 31-A of the Ordinance arising out of similar facts and circumstances of the present appeals. The said reasons are also adopted in these appeals. All the above facts clearly demonstrate that the judgments under discussion are void ab initio. Similar view was taken in the case of Noor Muhammad Khatti.
16. Now we will come to the next aspect of the case whether this Court, after holding that the appeals are not maintainable and the judgments are void ab initio, can interfere with the judgments.
17. It is pointed out that Acts or transactions of private and public can be found to be void. Secondly an order passed by executive, quasi-judicial or judicial functionary can be found to be void in appropriate judicial proceedings. Thirdly an order or judgment passed by a Court of law can be found to be void by superior Court in any judicial proceedings or under supervisory jurisdiction after the same is brought to the notice of such Court through any source. Normally the superior Courts have been extremely slow in determining purely judicial orders or judgments passed by subordinate Courts to be void ab intio. Nevertheless, it does not mean that the superior Courts have no jurisdiction or powers to remedy the situation after it has encountered with it. The superior Courts have various powers such as Revisional, inherent and Constitutional powers. These powers can be exercised in A appropriate proceedings, either on the. Application of any party or under its Suo Motu jurisdiction. Dealing with a somewhat similar situation, the Hon'ble Supreme Court in the case of Rehmdil v. Province of Balochistan, (1999 SCM R 1060) at page 1071 has observed as under:- - "It seems to us that in cases, involving patent abuse of jurisdiction and justice, the Court, exercising powers under section 115, C.P.C. Even where the revision petition, brought by an aggrieved party, is barred by time, still has a discretion to invoke its own suo motu revisional authority to advance justice and to suppress mischief, albeit only when a jurisdictional error, in contemplation of the section is encountered. It needs hardly be reiterated that technicalities, unless resorted to in aid of justice and fairplay, have little room in the wide field occupied by judicial dispensations."
18. In the present matters, it is noticed and as already observed thatall the accused were booked in Reference sent to Accountability Courts for their trial for offence punishable under section 10 of the Ordinance. They were shown absconders. The trial Courts in order to procure their attendance issued Non-Bailable Warrants for their arrest, which could not be served upon them. The trial Courts recorded the statements of Process Servers to initiate proceedings under section 87 and 88, Cr.P.C. Relying upon the said statements, convicted the said accused persons under section 31-A, of the Ordinance. Thus the trial Courts pending adjudication of the main Reference, without holding any legal procedural law of trial convicted the accused persons. Hence, the trial Courts took upon themselves to take action against the accused persons under suo motu jurisdiction and passed judgments, which are under discussion. The said judgments have been found to be void ab initio.
As the said judgments were passed without adopting legal procedure, at unwarranted stage, considering material which cannot be termed as legal evidence, without hearing the accused persons, therefore, it is apparent on the face of record that the Presiding Officers of the trial Courts passed the judgments by abusing the process of Court. Once it has been found that the Presiding Officers of the Courts have abused the process of the Court, then it is incumbent upon the superior Courts and it is one of the duties of the superior Courts to correct such wrongs of the subordinate Courts by exercising whichever powers are available with them either supervisory, revisional, inherent or constitutional powers, for the simple reason that it was the act of the Court done in the abuse of process of Court, that is to be corrected by the Court itself or by superior Court as soon as it is brought to its notice through any source. There is no other authority which can correct such act of the subordinate Courts. A distinction has to be made between the order passed by officials or authorities except the Court and the Court itself. Therefore, the learned DPGA was right in saying that void judgment of Court can be corrected by exercising Suo Motu jurisdiction of the Court.
19. Under section 17 of the Ordinance, the provisions of the Code of Criminal Procedure are applicable if they are not inconsistent with any provision of the Ordinance. When some of the appeals were filed at the time this Court had revisional powers. Presently under section 32(c) revision cannot lie against any interlocutory order of the Accountability Court. There is no specific provision curtailing the supervisory or inherent jurisdiction of this Court. The bar of section 32 of the Ordinance is against interlocutory order only. Further this Court under Article 203 of the Constitution has power to supervise and control all subordinate Courts. The Accountability Courts are subordinate to this Court in view of decision given by the Supreme Court in the case of Mehran Ali v. State (PLD 1998 SC 1445). The fundamental object of the supervision is to keep the administration of justice pure and for thatpurpose this Court exercises powers to correct the failure, faults, or dereliction of duty, latches, defects of jurisdiction, denial of justice, bias or disability of the Court, abuse of process of Court or law, which instances are by no means exhaustive, but not by way of any relief and irrespective of whether it causes any benefit or harm to a party either Suo Motu or when the defect is brought to the notice of the Court. Reference is invited to Zahid Ali v. Mubarak Bano (PLD 1976 Kar 68). It will be further noted that in exercise of such powers there are no limits, fetters or restrictions placed on this Court because the purpose of Art. 203 appears to be to make the High Court the custodian of justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is met out fairly and properly by the Courts subordinate to it.
20. Further, under section 561-A, Cr.P.C. This Court possesses inherent powers. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. The above provision of law envisages three circumstances under which the inherent jurisdiction can be exercised, namely, (a) to give effect to any Order under the Code (b) to prevent abuse of the process of any Court and (c) or otherwise secure the ends of justice. It is not possible or desirable to laid down any inflexible rule which is governed to exercise of inherent jurisdiction as no legislative enactment dealing with the procedure can provide for all cases that may possibly arise. It is pointed out that while exercise of powers under the section, the Court does not function as a Court of Appeal or Revision. Inherent jurisdiction under the section though vide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Court exists. The authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of Court to allow any action, which would result injustice and prevent promotion of justice. In exercise of powers Court would be justified to quash any proceedings if it finds that initiation/continuation of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Judicial process no doubt should not be an instrument of operation or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, least it would be an instrument in the hands of a private complaint to unleash vendetta to harass any person needlessly. It should also be ensured that section is not an instrument handed over to accusedto shortcut a prosecution and bring about its sudden death. Thus the scope of exercise of powers under section 561-A, Cr.P.C. Is to prevent the abuse of process of any Court or ,otherwise to secure the ends of justice, hence the powers under section 561-A, Cr.P.C. Are wide and the plentitude powers requires more cautious in its exercise, therefore, the Court must be careful to sec that its decision in exercise of this power is based on sound principles. Reference is invited to Bashir Ahmed v. Zafar-ul-Islam (PLD 2004 SC 298) and State of Madhya Pradesh v. Awadh Kishore Gupta (AIR 2004 SC 517).
21. We have already observed that the Presiding Officers of the Accountability Courts have passed the judgments by abusing the process of the Court whereas the jurisdiction vested in the Court is to dispense justice and not to perpetuate injustice. Reference is invited to Qureshi Salt and Spices Indus v. Muslim Commercial Bank Ltd. (1999 SCM R 2353). The passing of the said judgments is purely an act of the Court and that too has been done under suo motu jurisdiction. It is well-settled that for any act of the Court no one be made to suffer. Reliance is placed on Muhammad Iqbal v.
Khan Muhammad (PLD 1999 SC 35). It has been held in the case of Shaheen Akhtar v. Muhammad Alam (1999 YLR 2325 SC AJ&K) "However general principle of law is that nobody should suffer for the mistake of the Court or its officer." It has further been held in the case of Amanatullah Begum v.
Munawar Akhtar (1999 SCM R 1100) "it was a case of an act of Court which should not be allowed to prejudice the rights of the respondent. Yet in another case of Muhammad Munsha v. Sabir Ali (1999 SCM R 1782) the Hon'ble Supreme Court of Pakistan held that no party can be made to suffer on account of error of the Court.
22. It is well-settled that the void judgments neither can be ratified nor confirmed, therefore, if they are allowed to remain operative then it will perpetuate injustice and will cause miscarriage of justice instead of advancing the cause of justice, hence the learned Advocates are right in saying that some authority is required to declare such judgments to be void and that authority is this Court, so that the judgments are made inoperative after making such declaration because they are of no effect whatsoever and even they are not required to be formally set aside. Further, if the void ab initio judgments are allowed to remain in the field and some actions or orders are passed by any authority then such orders or actions will be illegal for,the simple reason that when foundation, on which such orders or actions are taken by any authority, is illegal then superstructure i,e, orders and actions based on such foundation will be illegal and of no consequence as held in the case Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104). Thus the position as stood on the date of passing of the judgments is required to be restored.
23. In the light of what has been discussed above we, under Suo Motu jurisdiction, in exercise of Constitutional, inherent and revisional powers, set aside the judgments passed in Criminal Accountability Appeals Nos. 24 of 2002 and 19 of 2003. Nevertheless, this judgment shall not be construed to preclude the trial Court from taking any proceedings in accordance with law and adopt legal procedure for trial of offence punishable under section 31-A of the Ordinance, 1999.
24. Above are the reasons of our short order, dated 15-12-2005 by which we had set aside the judgments in the Appeal Nos. 60, 61, 62 of 2001; 2, 5, 6, 7, 38, 42, 67, 68 of 2002; 17 of 2003 and 4, 5 and 6 of 2005 by passing the following short order:-- ' For reasons to be recorded separately and in view of the reasons recorded in the case of Noor Muhammad Khatti (supra), which was authored by one of us namely Rahmat Hussain Jafferi, J., we are of the considered view that the judgments, under which the appellants have been convicted under section 31-A of the National Accountability Bureau Ordinance, 1999 ("Ordinance, 1999"), are void judgments, being based on the trial in absentia, without jurisdiction, against principle of natural justice and in violation of Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, the conviction and sentence awarded to the appellants under the impugned judgments are set aside. Nevertheless this order shall not be construed to preclude the trial Court from taking any proceedings in accordance with law and adopt legal procedure for trial of offence punishable under section 31-A of .The Ordinance, 1999.
' The matters are disposed of in the above terms."