' CH. EJAZ YOUSAF, J.-This petition for leave to appeal is directed against the order dated 20.11.2003 passed by learned Division Bench of the High Court of Balochistan, Quetta whereby Special Cr. A.
No, 04/2001 filed by the petitioners against their convictions and sentences recorded by the Special Judge (Offence in Respect of Banks), Balochistan, Quetta, vide judgment dated 14.5.2001, was dismissed.
2. Facts of the case, in brief, are that the petitioner No, 1 M.B. Abbasi, was the President of Nationalized Banks and Financial. Institutions including the National Bench of Pakistan, whereas, respondent No, 2 Nabi Bakhsh Soomro, was serving Regional Chief Executive of the National Bank of Pakistari, Quetta. On 27,5.1997, one Syed Akhlaq Ahmed Zaidi, the then Vice President & Zonal Chief of NBP, Quetta, lodged a complaint with Deputy Director, FIA, Quetta, against the petitioners on the allegations that on the direction of petitioner No, I a guarantee for Rs, 60.00 million was issued by NBP, Quetta, favouring PSO, Karachi, through M/s Taftan Oil Company (Private) Limited (hereinafter referred to as "M/s. TOC") with the intention to favour one of the politician of the area on the basis of mortgaged land highly over-valued, in defiance of the conditions stipulated in the memorandum of Credit Division, without approval of the Executive Committee of the Bank, and also without CIB report and NOC from NCBs, which put the Bank to a great amount of risk. On the basis of said complaint, formal FIR bearing No, 04/1997. Dated 27.5.1997 was registered under sections 409, 420, 467, 468, 471, PPC read with section 5(2) of the Act-II of 1947 against the petitioners and four Directors of M/s TOC. Petitioner No, I was arrested on 15.11.1996, under Maintenance of Public Peace Order, and remained in custody for 18 months, whereafter, he was released on payroll in April, 1998.
He left the country in August, 1999 with permission of the Government. Petitioner No, 2 also left the county and remained in exile for about ten years. After investigation of the case interim challan/charge-sheet bearing No, 6/97, dated 5.12.1997 was filed showing names of the petitioners in column-2 as absconders.
3. During pendency of the case M/s. TOC immediately deposited the entire outstanding dues amounting to Rs, 45.00 million alongwith misc. Charges (as Rs, 15 million had already paid being part payment of loan) in the High Court of Balochistan but the 'Government refused to receive the payment, therefore, they approached this Court through Cr.A. No, 146 of 1998. This Court vide order dated 1.7.1999 accepted the compromise/settlement between M/s. TOC and PSO and directed the NBP to transfer the amount of Rs, 45.00 million lying with them in the account of the Registrar of the High Court of Balochistan, Quetta, to, the account of PSC towards their claim against M/s. TOC. In pursuance of the said order, the NBP, Quetta, informed the FIA Quetta, vide letter dated 27.7.2000 that the amount due had been paid to PSO, Bank Guarantee had been duly discharged on the settlement of Claim and that nothing was outstanding against M/s. TOC.
4. Despite settlement, the Special Judge Banking Court, Balochistan, Quetta, continue proceedings and default petitioners, in absentia, . And sentences as under, vide his judgment dated 14.5.2001:-- U/s. 409, PPC U/s. 420, 3 years' R.I., fine of Rs, 50,000/- each and in default to further suffer R.I. For one year.
U/s. 5(2) Act-II, 1947 3 years' R.I., fine of Rs, 50,000/- each and in default to further suffer R.I. For one year.
' Against their convictions and sentences, the petitioners filed special Criminal Appeals Nos. 4 & 5 of 2001 before the High Court of Balochistan, Quetta, which were dismissed, vide impugned judgment dated 20.11.2003, primarily on the ground that the appeals were filed by the proclaimed offenders (petitioners), through their appointed counsel, without surrendering to the process of law. The petitioners on their return to Pakistan, statedly, in April, 2008 moved an application. before the Federal Review Board, constituted under the National Reconciliation Ordinance, 2007. The Board, vide its order dated 26.7.2008 recommended withdrawal of the above case (FIR No, 4/1997) on the ground that the case was initiated against the petitioners for political reasons and they were implicated because of political victimization. The recommendations of the Review Board, however, could not bear fruit as the appeal filed by the petitioner against the judgment of the Special Judge, Banking Court, Quetta, had already been dismissed by the High Court of Balochistan and no case was pending against the petitioners, hence this petition.
5. It has been mainly contended by the learned counsel of for the petitioners that trial' in absentia as well as convictions and sentences recorded against the petitioners being violative of Articles 4 & 9 of the Constitution cannot sustain in view of the law laid down by this Court in the cases reported as (i) Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), (ii) Muhammad Fazil v. The State (2006 SCM R 1432), (iii) Muhammad Arif v. The State (2008 SCM R 829), (iii) Mir Ikhlaq Ahmed v. The State (2008 SCM R 951) and an unreported case titled Gul Zaman Kasi v. The State (Cr.A. No, 269 of 2003). It is further his case that since the matter was settled between the parties in Criminal Appeal No, 146 of 1998 and it was, vide order dated 1.7.1999, held by this Court that controversy between the parties stood resolved amicably and entire amount was paid, therefore, there was no live issue left as such convictions and sentences recorded against the petitioners were unjustified.
6. Sardar Muhammad Latif Khan Khosa, learned Attorney. General for Pakistan, while candidly conceding to the proposition that trial in absentia against the petitioner was void ab-initio, added that as is evident from order dated 1.7.1999, claim of the Bank was settled and the amount due having been paid to the Pakistan State Oil Company the bank guarantee was duly discharged. He produced copy of letter dated 27.6.2000 issued by the National Bank of Pakistan, Zonal Office Quetta (Admn. Deptt.) to the Deputy Director, F.I.A. Commercial Bank Circle, Quetta in this regard.
7. We have given our anxious consideration to the respective contentions of the learned counsel for the petitioners and have also gone through the record of the case, minutely.
8. Record reveals that both the petitioners were tried and convicted by the Special Judge (Offence in Respect of Banks),. Balochistan, Quetta, vide judgment dated 14.5.2001 on the charge that both were found to have managed the issuance of bank guarantee worth Rs, 60 million favouring PSO without legal formalities and requirements against inadequate security thus dishonestly inducing the PSO to deliver the said amount on the basis of bank guarantee in question. During, pendency of Criminal Appeal No, 146 of 1998 filed by co-accused Abdur Rashid. Nasir and another, a compromise was arrived at between the parties and the outstanding amount allegedly covered by the guarantee was paid to the PSO. Resultantly, the bank guarantee issued by the NBP favouring PSO, in terms of the compromise, became infructuous. The said appeal was disposed of by this Court vide order dated 1.7.1999, operative part whereof reads as follows:-- "2. Criminal Miscellaneous Application No, 182 of 1999 has been instituted in this appeal under Order XXXIII, Rule 6 read with Order V, Rule 2(19) of Supreme Court Rules, 1980 for disposal of the appeal in terms of settlement arrived at between the parties. The application is marked-A. The terms of the compromise are as under:-- "1. That T.O.C. Has agreed to surrender an amount of Rs, 45 millions alongwith accrued interest thereon favouring P.S.O. Towards their claim, and the P.S.O. Has agreed to receive the said amouni, presently lying in National Bank of Pakistan in the account of Registrar High Court, towards full and final adjustment.
2. That T.O.C. And P.S.O. Respectively have withdrawn, abandoned and relinquished their claims, and counter-claims against each other in view of the payment of Rs, 45 Million alongwith accrued interest to P.S.O. Similarly N.B.P. Would also withdraw .Its case against P.S.O. And T.O.C.
3. That the amount of Rs, 45 million alongwith accrued interest lying deposited with the N.B.P. As stated above shall be released in favour of P.S.O. And N.B.P. Would transfer this amount in the account of P.S.O. Being maintained by N.B.P. Being maintained by N.B.P. At Karachi.
4. That all the parties have unconditionally withdrawn their cases pending before all the concerned Courts, detail whereof is given in deed of settlement account of P.S.O. Being maintained by N.B.P. At Karachi, the bank guarantee issued by N.B.P. Favouring P.S.O. Would become infructuous.
' It is accordingly respectfully prayed that the compromise/settlement arrived at between the parties may kindly be accepted and the appeal may be disposed of in terms hereinabove mentioned. It is further prayed that this application may kindly be placed before the Hon' ble Judge in Chambers."
' The above-quoted settlement shows that the controversy between the parties has been resolved by them amicably. There is no live issue now left between the parties. The compromise/settlement is, accordingly, accepted to the extent of civil liability of the parties. The appeal is disposed of in the terms mentioned in the application."
' Here it would also be beneficial to have a glance at the letter dated June 27, 2000 written by the National Bank of Pakistan to the Deputy Director Federal Investigation Agency, regarding the guarantee in question, which is reproduced herein below in extenso:- ' "National Bank of Pakistan ' ZONAL OFFICE QUETTA (ADMN.DEPTT)
' Ref: ZOQ(A(CA:Q.CITY:KDG(TOC)/ Dated: June 27, 2000 ' The Deputy Director ' Federal Investigation Agency Commercial Bank Circle, QUETTA.
' QUETTA CITY BRANCH QUETTA ' GUARANTEE NO. 17/96 DATED:13/13/1996 FOR RS. 60,000/- MILLION FAVOURING M/S. PAKISTAN STATE OIL LIMITED ON BEHALF OF M/S. TAFTAN OIL COMPANY PRIVATE LIMITED.
' It is informed that on the Report/Letter No, ZOQ.ADMN/605 DATED:26/3/1997 case FIR No, 4/97, dated 5.6.1997, presently the case is pending trial before the Court.
' As the matter of recovery of Pakistan State Oil against Taftan Oil company which was guaranteed by the NBP was settled, and in persuasion of order dated 1.7.1999 of honourable Supreme Court, the amount due was paid to Pakistan State Oil Taftan Oil Company & on settlement of claim, bank guarantee was duly discharged and return to the bank.
' The claim of the bank against this guarantee has been settled and nothing is outstanding against Taftan Oil Company Private Limited.
' It is informed accordingly.
' Yours Faithfully, Sd/- ' ZONAL CHIEF ' ZONE-A (QUETTA)
' CC To:
1. The Regional Chief Executive, NBP, Regional Headquarters, Quetta.
2. The Manager, NBP, Quetta City Branch, Quetta.
Sd/- ZONAL CHIEF"
The above letter is indicative of the fact that the bank guarantee in question was duly discharged and returned to the bank and claim of the petitioners against guarantee was accordingly settled.
Thus, we see force in the contention raised by the learned counsel for the petitioners that no loss on account of the guarantee in question was caused to the bank or to any other person.
9. As to the next contention raised by the learned counsel for the petitioners that trial of the petitioners, in absentia and convictions and sentences recorded against them, were bad in law, it would be pertinent to mention here that though subsection (4) of section 5 of the Offences in Respect of Banks (Special Court) Ordinance, 1984, provides that a Court may try an accused, if in his opinion, such absence is deliberate and brought about with a view to impeding the course of justice, or behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court, but in the instant case since it is not apparent on record that the requirements justifying exercise of power under the above provision were satisfied and efforts were made to get the service effected on the petitioner, who according to the learned counsel for the petitioner, at the relevant time was out of country, therefore, to our mind, the proceedings in absentia had lost its efficacy besides being violative of the principle of natural justice as per maxim "audi alterum partam' and Articles 9 &10(i) of the Constitution of the Islamic Republic of Pakistan. In the case of"Mir Akhlaq Ahmad & another v. The State (2008 SCM R 951), the appellants alongwith other absconding accused were, in absentia, tried by Special Judge Anti-Terrorism Court, Khuzdar, convicted under section 302(b), PPC and sentenced to. Death. Perpetual warrants of arrest of the accused were also issued. No appeal was filed by the convicts. Since a murder reference was sent for confirmation of their sentences to the High Court of Balochistan, Quetta, therefore, on receipt of reference publication for appearance of the absconding accused persons was made but at none of them turned up, therefore, a counsel was appointed for them at State expense. The High Court, after hearing the learned Prosecutor and the Advocate General upheld the judgment passed by the learned Trial Court and answered the murder . The appellants were statedly arrested on 26.4.2006 and then they filed time-barred petition before this Court seeking, leave to appeal against the said judgment. Leave was granted and while deciding the appeal, it was held that since trial of the appellant, in absentia, was violative of Articles 9 and 10(i) of the Constitution as well as section 10(11-A) of the Anti-Terrorism Act, 1997, the accused persons were not afforded opportunity of hearing and were condemned unheard,, therefore, the judgment was not sustainable. In the case of Muhammad Arif v. The State (2008 SCM R 829), the appellant Muhammad Arif was convicted under section 302(b)/34, PPC read with section 6(2)(a) of the Anti-Terrorism Act, 1997, and sentenced to death vide judgment dated 2.5.2002, in absentia.
' He did not file any appeal against the said judgment. However, co-accused Attaullah, filed appeal.
The learned High Court finding that the case of Attaullah should have been tried under Juvenile Justice System Ordinance, 2000, set aside the judgment dated 2.5.2002 to his extent and remanded the case for trial under Juvenile. Justice System Ordinance.
2000. Since the appellant was still absconding and despite publication of notices, in different newspapers for his service, not entered appearance, therefore, a counsel was appointed to defend him at State expense. The learned High Court, after 'believing the evidence, came to the conclusion that the petitioner was rightly found guilty by the Trial Court and accordingly answered the .
Petition for. Leave to appeal was filed in this Court which was allowed. In appeal, while relying on the case of Mir Ikhlaq Ahmad (supra), it was held that as the trial of the appellant was held in absentia and without opportunity of hearing, therefore, conviction and sentence recorded by the Courts below, in absence of the appellant, to his extent, were being violative of the legal and Constitutional provisions, not sustainable. In addition to the cases cited above the cases reported as The State through P.G. NAB v. Aftab Ahmed Khan Sherpao (PLD 2005 SC 399), (ii) Mehram Ali & others v. Federation of Pakistan (PLD 1998 SC 1445), (iii) Zamarud Khan v. The State (1987 SCM R 569), may also be referred in this respect.
10. It is the legal requirement that at trial, not only case against the accused, is fully and clearly explained to him but he should be told in express terms and made to understand the nature of offence for which he is being tried. Admittedly, in this case the petitioners were never served as according to the learned Trial Court they could not be traced out. Observations made by the learned Trial Court at page 3 of his judgment are explicit in this regard.
11. It is by now well-settled that every provision entailing penal consequences has to be construed strictly, hence, recourse to the provision of section 5(4) of the Ordinance, 1984, which is identical to section 19(10)(a) & (b) of the Anti Terrorism Act, 1997, has to be made rarely and in exceptional circumstances. In the case of "Haji Muhammad v. The State (PLD 2003 SC 262), conviction/sentence was recorded against the petitioner without providing him opportunity of hearing and believing the statement of the prosecution, it was held by this Court that where an accused is convicted sentenced in absentia, Court is hound to follow relevant provision of law strictly. Reference in this behalf may also be usefully made to the case reported as Chairman Board of Intermediate & Secondary Education. Bahawalpur v. Rizwan Rashid (2005 SCM R 728), (ii)
United Bank Ltd. v. Yousaf Haji Noor Muhammad Hadi (1988 SCM R 82), (iii) Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), (iv) Federal Land Commission v. Mian Ghulam Qadir and others (1983 ,SCMR 867), (v) Pakistan International Airlines Corporation v. Junior Labour Court, Karachi (PLD 1978 SC 239), (iv) F.B. Ali v. The State (PLD 1975 SC 506).
12. Needless to point out that a person convicted in absentia has option either to surrender before the Trial Court and seek fresh trial or file an appeal in the Appellate Court if he feels that evidence recorded against him in absentia would not justify conviction, and such person has equal right of filing appeal who seeks its adjudication on merits. Observations made in the case of Muhammad Fazil and others v. The State & others (2006 SCM R 1432) are relevant in this regard.
13. Sequel to the above normally we, while setting aside the impugned judgment and also of the Court of first instance, would have remanded the case for retrial but since as per statement made by the learned Attorney General for Pakistan, the Review Board in its decision dated 26.7.2008 has recommended for withdrawal of the case against the petitioners, therefore, retrial of the petitioners would be an exercise in. Futility. Here it would be instructive to have a glance at the order of the Review Board which is reproduced herein below in extenso:-- BEFORE THE CHAIRMAN, REVIEW BOARD (NRO)
ACCOUNTABILITY CASE NO. 6 of 2008--FRB 26.7.2008.
' This Board has gone through the petition and the material annexed with it carefully and minutely.
The petitioners have been acquitted of all NAB cases except one FIR No, 4 of 1997-PS FIA/CBC, Quetta (Case No, 37 of 1997) pending in the Court of Special Judge, (Offences in Banks), Balochistan, Quetta wherein the petitioner No, 2 in the capacity of President of National Bank of Pakistan issued guarantee of Rs, 60 million in favour of Taftan Oil Company Quetta. Perusal of the record in the case shows that the above case was falsely initiated against the petitioners for political reasons and were implicated because of political victimization, as it would appear from the material produced on record as the petitioners refused to give statement against the leader of the political parties, hence the petitioners were involved in the false cases with political motivation.
' This Board is firmly of the view after considering the material on record that this case was a result of political reasons for political victimizing the petitioners, therefore, we would recommend the withdrawal of the above case against the petitioners. Sd/- CHAIRMAN Sd/- Member. sd/- Member"
In view of the above findings of the Review Board, the case of the petitioners otherwise appears to be squarely covered by the provisions of sub-section (2) of section 494, Cr.P.C. Inserted through National Reconciliation Ordinance (Ordinance No LX) of 2007, and on this account too, they cannot be proceeded against.
14. Upshot of the above discussion is that this petition is converted into appeal and is allowed and the impugned order dated 20.11.2003 s set aside. Resultantly the convictions and sentences recorded against the appellants, namely, M.B. Abbasi and Nabi Bakhsh Soomro, under sections 409, 420, PPC read with section 5(2) of the Act-II of 1947, by the Special Judge, (Offence in Respect of Banks), Balochistan Quetta, vide judgment dated 14.5.2001, are also set aside and they are acquitted of the charges. The appellants are already on bail therefore, their bail bonds are discharged.
' These are the reasons of our short order of even date announced in open Court.