1. Waqar Hassan Mir, J.--Through this single judgment we will dispose the following Criminal Appeals (filed against conviction and sentence) and the Writ Petitions (filed for suspension of sentence as well as for pre-arrest bail), the particulars whereof are as under: Sr.
2. No,Case No, Description 1 Criminal Appeal No, 2069 ofAgainst the Order dated 07.01.2004 passed by Accountability Court No, IV, Rawalpindi/Islamabad in Reference No, 92/20042009 titled "A. Rehman Malik vs. The State etc". whereby the appellant was convicted under Section 31 A of NAB Ordinance, 1999 and sentenced to undergo imprisonment of three years.
3. 2 W.P. No, 24671 of 2009 titledFor suspension of conviction and sentence passed in Reference No, 92/2004.'A. Rehman Malik vs. The State etc".
4. 3 Criminal Appeal No, 2070 ofAgainst the Order dated 07.01.2004 passed by Accountability Court No, IV, Rawalpindi/Islamabad in Reference No, 91/20042009 titled 'A.. Rehman Malik and another vs. The State etc". whereby the appellants were convicted under Section 31- A of NAB Ordinance, 1999 and sentenced to undergo imprisonment of three years.
5. 4 W.P. No, 24670 of 2009 titledFor suspension of conviction and sentence passed in Reference No, 91/2004."A Rehman Malik and another vs. The State etc".
5. Criminal Appeal No, 2204 ofAgainst the Order dated 04.07.2002 passed by Accountability Court, Rawalpindi in Reference No,2009 titled "Sadiq Ali Khan vs. The State".
6. 56/2001 whereby the appellant was convicted under Section 31-A of NAB Ordinance, 1999 and sentenced to three years R.I.
7. W.P. No, 24864 of 2009 titledFor pre-arrest bail in the proceedings in Reference No, "Sadiq Ali Khan vs. Judge Accountability Court etc".56 of 2001.
8. Criminal Appeal No, 2205 ofAgainst the Order dated 26.05.2003 passed by Accountability Court, Rawalpindi in Reference No,2009 titled "Sadiq Ali Khan vs. The State"..
9. 73/2003 whereby the appellant was convicted under Section 31-A of NAB Ordinance, 1999 and sentenced to three years R.I.
10. W.P. No, 24863 of 2009 titledFor pre-arrest bail in the proceedings in Reference No, "Sadiq Ali Khan us. Judge Accountability Court etc.".73 of 2003.
11. Criminal Appeal No, 29 ofAgainst the Order dated 26.01.2002 passed by Accountability Court No, II, Rawalpindi/Islamabad in Reference No, 7/20002010 titled "Sikandar Ali - Abbasi vs. The State etc". whereby the appellant was convicted under Section 31 A of NAB Ordinance, 1999 and sentenced to undergo imprisonment of three years.
12. W.P.. No, 505 of 2010 titledFor pre-arrest bail in the proceedings in Reference No, "Sikandar Ali Abbasi vs. The State etc." 7 of 2000.
13. Criminal Appeal No, 32 ofAgainst the judgment dated 03.05.2002 passed by Accountability Court, Rawalpindi in Reference No,2010 titled "Sardar Mansoor Khan Leghari vs. The State".
14. 56/2001 whereby the appellant was convicted under Section 31-A of NAB Ordinance, 1999 and sentenced to three years R.I.
15. W.P. No, 202 of 2010 titledFor suspension of conviction and sentence passed in Reference No, 56/2001."Sardar Mansoor Khan Leghari vs. The State etc."
16. W.P. No, 203 of 2010 titledFor pre-arrest bail in the proceedings in Reference No, ."Sardar Mansoor Khan Leghari vs. The State etc".
17. 56 of 2001.
18. Criminal Appeal No, 190 ofAgainst the judgment dated 08.12.2003 passed by Accountability Court No, III, Rawalpindi in Reference No,2010 titled 'Manzoor Hussain Shah vs. The State etc'
19. 79/2003 whereby the appellant was convicted under Section 31-A of NAB Ordinance, 1999 and sentenced to _undergo imprisonment for three years.
20. W.P. No, 2895 of 2010 titledFor suspension of conviction and sentence passed in Reference No, 79/2003.'Manzoor Hussain Shah vs. NAB etc."
21. Criminal Appeal No, 191 ofAgainst the judgment dated 08.12.2003 passed by Accountability Court No, III, Rawalpindi in Reference No,2010 titled 'Manzoor Hussain Shah vs. The State etc."
22. 80/2003 whereby the appellant was convicted under Section 31-A of NAB Ordinance, 1999 and sentenced to undergo imprisonment for three years.
23. W.P. No, 2896 of 2010 titledFor suspension of conviction and sentence passed in Reference No, 80/2003.'Manzoor Hussain Shah vs. NAB etc."
24. Criminal Appeal No, 192 ofAgainst the judgment dated 08.12.2003 passed by Accountability Court No, III, Ftawalpindi in Reference No,2010 titled 'Manzoor Hussain Shah vs. The State etc".
25. 81/2003 whereby the appellant was convicted under Section 31-A of NAB Ordinance, 1999 and sentenced to undergo imprisonment for three years.
26. W.P. No, 2897 of 2010 titledFor suspension of conviction and sentence passed in Reference No, 81/2003.'Manzoor Hussain Shah vs. NAB etc".
2. The purpose in each writ petition has been mentioned in the above table. However, succinctly the facts of the criminal appeals are as under: Criminal Appeal No, 2069/2009: On 27.11.1996, a case FIR No, 14/1996 under Sections 161, 165, 165-A PPC read with Section 5(2)47 PCA was registered with Police Station FIA/SIU, Islamabad against the appellant, A. Rehman Malik, (the then ADG, FIA) and others with the allegation that the accused persons received two cars valuing of Rs, 17,98,000/- from one Saleem Godli of Toyota Karachi as illegal gratification. On 27.11.1996, the appellant was arrested and sent to jail. On 08.11.1997, the appellant moved post arrest bail before the learned Special Judge, Central, Rawalpindi, which was allowed on 13.11.1997. On 11.08.1998, challan was submitted before the Court of learned Special Judge, Central, Rawalpindi. On 14.12.1998, the learned Special Judge, Central, Rawalpindi, declared the appellant as Proclaimed Offender under Section 87/88 Cr.P.C. and directed the prosecution to report for moveable and immovable property belonging to the accused/appellant. On 12.12.2003, the learned Special Judge, Central, Rawalpindi, on the application of Lt. General Munir Hafeez, Chairman NAB, transferred the case to the Accountability Court, Rawalpindi/Islamabad under Section 16-A of the National Accountability Ordinance, 1999. On 07.11.2004, the learned Judge Accountability Court No, 4, Rawalpindi/Islamabad convicted the appellant under Section 31-A of the NAB Ordinance and sentenced to three years imprisonment. The learned Court held that since the appellant was declared Proclaimed Offender after due process of law, therefore, as per provisions of Section 16-A(a) ibid., there is no need to issue the process afresh as the accused is deliberately absconding and concealing himself to screen himself from the proceedings.
27. Criminal Appeal No, 2070/2009: On 01.01.1997, a case FIR No, 1/1997 under Sections 161, 167, 177, 420 PPC read with Section 5(2)47 PCA was registered with Police Station FIA/SIU, Islamabad on the complaint of one Hashim Raza Rizvi against the appellants, A. Rehman Malik (the then ADG, FIA), Sajjad Haider (the then Director, FIA) and another with the allegations that the accused persons conducted raid in his house and took into possession five American Passports alongwith jewelry and gold ornaments weighing 20-Tolas and a hard cash of seven lacs. The appellants were arrested and sent to jail. On 13.11.1997, the learned Special Judge, Central, Rawalpindi confirmed the ad-interim post arrest bail granted to the appellants. On 24.04.2000, challan was submitted before the Court of learned Special Judge, Central, Rawalpindi, who summoned the accused/appellants through warrant. On 11.11.2000, the learned Special Judge, Central, Rawalpindi, ordered the proceedings of proclamation under Section 87/88 Cr.P.C. against the appellants and others and passed the order under Section 512 Cr.P.C. declaring the accused/appellants as proclaimed offender. On 10.12.2002, the learned Special Judge, Central, Rawalpindi, delivered the copies to the accused/appellants under Section 265-C Cr.P.C. and on 14.01.2003 framed the charge and summoned the prosecution evidence. On 12.12.2003, FIR No, 1/2007 was trapsferred to the Admn. Judge, Accountability Court, under Section 16-A(a) of NAB Ordinance on the application filed by Chairman, NAB. On 12.01.2004, the learned Judge Accountability Court No, 4, Islamabad convicted the appellants under Section 31-A of the NAB Ordinance and sentenced them to three years imprisonment.
28. Criminal Appeal No, 2204/2009: A case FIR No, 06/1999 under Sections 409, 109 PPC read with Section 5 of the Prevention of Corruption Act, 1947 was registered at Police Station FIA/SIU, Islamabad with the allegation that the appellant, who was Managing Director of the Utility Stores Corporation, imported burgers, shrimps and nuggets worth Rs, 5.215 Million from Dubai without any market survey and feasibility study; that limited stock was sold and the rest of the stock was perished as a result of which, Utility Stores suffered loss of Rs,3.65 Million; that the appellant as Managing Director of Utility Stores also imported-meat through Muhammad Iqbal and Asghar Ali; the meat decomposed and Utility Stores suffered a loss of Rs,32.653 Million. The appellant was arrested in this case and was granted bail by the learned Special Judge, Central, Rawalpindi vide order dated 16.11.1999 and thereafter went to abroad. Later on, the NAB authorities got this case investigated and filed a Reference No, 56/2001 under Section 18(g) read with Section 24 of the NAB Ordinance, 1999 and in this Reference, the appellant alongwith others was named as accused. In this Reference, vide order dated 28.02.2002 the Accountability Court issued process under Section 87 of Cr.P.C., the bail granted to the appellant was withdrawn and his non-bailable warrants were issued. The appellant submitted an application before the Court through counsel requesting that he should be allowed to appear through counsel, but the Court vide order dated 06.06.2003 rejected the application. The learned Accountability Court, Rawalpindi vide order dated 04.07.2002 convicted and sentenced the appellant to undergo three years R.I under Section 31-A of NAB Ordinance, 1999.
29. Criminal Appeal No, 2205 of 2009: Reference No, 73/2003 was filed against the appellant on the allegation tile he, being Managing Director of Utility Stores Corporation of Pakistan, in purchase of computers caused financial loss to the Utility Stores Corporation. The appellant at the time of filing of this Reference was out of Pakistan. However, the learned Accountability Court, Rawalpindi vide order dated 26.05.2003 convicted the appellant under Section 31-A of the NAB Ordinance and sentenced him to undergo three years imprisonment.
30. Criminal Appeal No, 29 of 2010: In Reference No, 7/2000, the allegation against the appellant, the then Deputy Director, CDA, was that he committed the offence of corruption and corrupt practices as defined under Section 9 of the NAB Ordinance inasmuch as he alongwith other patron of Mehran Gas Company received Rs, 19,693,727/- and this benefit was derived by them illegally and through undeserved allocation of gas. The appellant absconded and was declared proclaimed offender by the Accountability Court, Rawalpindi/Islamabad and vide judgment dated 26.01.2002 was convicted under Section 31-A of the NAB Ordinance and sentenced to three years R.I. Perpetual warrant of arrest was ordered to be issued against him.
31. Criminal Appeal No, 32/2010: In Reference No, 56/2001, allegation against the appellant, Ex-MNA, is that his co-accused namely Sadiq Ali Khan, Ex-Managing Director, Utility Stores Corporation, awarded contract for import of meat from Australia and other edible products from Dubai through a firm namely M/s. Muhammad Ahmad and Bros., owned by his other two co-accused, who at all material times were acting as front men of the appellant. The contracts were awarded in utter disregard to the established rules and procedure, without conducting the required market survey with a view to ascertain demand for their consumption and with the intention to extend undue monetary benefit to the appellant as a consequence thereof, the Utility Stores Corporation suffered a cultivate loss of Rs,3,36,21,297/-.
32. The appellant was declared ' proclaimed offender and vide order dated 03.05.2002 passed by the Accountability Court, Rawalpindi/Islamabad was convicted under Section 31-A of the NAB Ordinance and sentenced to three years R.I. Perpetual warrant of arrest was ordered to be issued against him.
33. Criminal Appeal No, 190/2010: The appellant at the relevant point of time was serving in the Capital Development Authority as Assistant Director (Civil) when he was nominated as accused in Reference No, 79/2003 by the National Accountability Bureau. NAB Reference was constituted in consequence of FIR No, 06/97 dated 22.04.1997 registered at Police Station, FIA, Rawalpindi under Sections 419, 420, 466, 467, 409, 201, 204 and 109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947. The allegation was that the appellant and his co-accused prepared bogus and Illegal revenue orders and made payments of compensation and allotment of plots to them without their entitlement as such they misused their authority so as to gain benefit for themselves and caused a loss of Rs,5,13,78,879/- to the National Exchequer and thereby committed the offence of corruption and corrupt practice as defined under Section 9 and punishable under Section 10 of the National Accountability Ordinance, 1999 and schedule thereto. The appellant was declared Proclaimed Offender and convicted under Section 31-A of National Accountability Ordinance, 1999 and punished to undergo imprisonment of three years and warrants were directed to be issued accordingly.
34. Criminal Appeal No, 191/2010: The appellant at the relevant point of time was serving in the Oapital Development Authority as Assistant Director (Civil) when he was nominated as accused in Reference No, 80/2003 by the National Accountability Bureau. NAB Reference was constituted in consequence of FIR No, 06/97 dated 22.04.1997 registered at Police Station, FIA, Rawalpindi under Sections 419, 420, 466, 467, 409, 201, 204 and 109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947. The allegation was that the appellant and his co-accused prepared bogus and illegal revenue orders and made payments of compensation and allotment of plots to them without their entitlement as such they misused their authority so as to gain benefit for themselves and caused a loss of Rs, 2,78,24,57.5/- to the National Exchequer and thereby committed the offence of corruption and corrupt practice as defined under Section 9 and punishable under Section 10 of the National Accountability Ordinance, 1999 and schedule thereto. The appellant was declared Proclaimed Offender and convicted under Section 31-A of National Accountability Ordinance, 1999 and punished to undergo imprisonment of three years and warrants were directed to issued accordingly.
35. Criminal Appeal No, 192/2010: The appellant at the relevant point of time was serving in the Capital Development Authority as Assistant Director (Civil) when he was nominated as accused in Reference No, 81/2003 by the National Accountability Bureau. NAB Reference was constituted in consequence of FIR No, 06/97 dated 22.04.1997 registered at Police Station, FIA, Rawalpindi under Sections 419, 420, 466, 467, 409, 201, 204 and 109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947. The allegation was that the appellant and his co-accused prepared bogus and illegal revenue orders and made payments of compensation and allotment of plots to them without their entitlement as such they misused their authority so as to gain benefit for themselves and caused a loss of Rs, 1,93,09,001/- to the National Exchequer and thereby committed the offence of corruption and corrupt practice as defined under Section 9 and punishable under Section 10 of the National Accountability Ordinance: 1999 and schedule thereto. The appellant was declared Proclaimed Offender and convicted under Section 31-A of National Accountability Ordinance, 1999 and punished to undergo imprisonment of three years and warrants were directed to issued accordingly.
3. On 05.10.2007, National-Reconciliation Ordinance, 2007 was enforced. All the appellants got benefit of National Reconciliation Ordinance, 2007 and references/cases were terminated accordingly under Section 33-F of the Ordinance. But vide judgment dated 16.12.2009 the Honourable Supreme Court of Pakistan declared the amending provision of NAB Ordinance as void ab-initio and non-existent in the eye of law and further directed that, all the cases, which were pending before 5th of October, 2007, shall stand revived and that the judgment and stance under Section 31-A of the NAO, 1999 shall remain intact to be challenged in accordance with law as the same cannot be held void by issuing of Ordinance by the President. Hence all the aforementioned appeals.
4. Ch. Mushtaq Ahmad Khan, the learned counsel for the appellants in Criminal Appeals Nos, 2069/2009 & 2070/2009 and petitioners in Writ Petitions Nos,24670/2009 & 24671/2009 has opened the arguments by submitting that the appellants/petitioners remained in jail from 27.11.1996 to 13.11.1997 for one year and the prosecution could not prove any guilt against them through cogent evidence; that the Accountability Court cannot take cognizance of the case under the provisions of NAO, 1999 unless and until a Reference is filed by the Chairman, NAB; that the offence under Section 31-A of the NAO, 1999 was created subsequent to the initiation of the proceedings in the case in hand and unless and until a seParate Reference had been filed by the Chairman, NAB, neither any trial could be competently held by the learned trial Court nor conviction and sentence could be awarded under the said section; that when no 'reference under Section 18(a) was filed, even the cognizance could not be taken of the main case, wherein the impugned orders have been passed.
36. Further argued that the provisions of Section 31-A of the NAO, 1999 making the absconsion as an offence had been enforced by making of amendment in the NAO, 1999 on 03.02.2000, therefore, unless and until there was an allegation and proof of commission of offence of absconsion after that date, no punishment under the said section could be awarded as per the provisions of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973; that the impugned judgment has been rendered on the basis of alleged absconsion during the course of trial before the learned Special Court and said absconsion is liable to be dealt with under the provisions of Code of Criminal Procedure and not under the offence created under the NAO, 1999 as amended upto date.
5. The learned counsel has also argued that the learned trial Court was only competent to hold the trial under the said Ordinance, therefore, the very basis on which the offence has been committed is non-existent in the eye of law; that neither any proceedings culminating in absconsion have been held by the learned Accountability Court nor any trial has been held before the learned trial Court after the case was transferred to the said Court on 12.12.2003 and immediately where-after the judgment was rendered on 07.01.2004, as such the impugned judgment is coram-non-judice and non-existent in the eye of law. Further argued that no independent trial was held by the learned Accountability Court while holding that the appellants are guilty under Section 31-A of the NAO, 1999, therefore, no conviction and sentence could have been recorded without holding of the trial by the learned Accountability Court; that the conviction and sentence awarded in absentia is void ab-initio as held in Mehram Ali's case reported as PLD 1998 SC 1445, as such the impugned judgment is not sustainable. That the finding of the learned Accountability Court to the effect that the appellants were absconders is patently illegal and is based upon erroneous assumptions and presumptions as they had been forced to leave the country when they were on bail and thereafter were in exile till they re-entered to the country, where they could not enter like Mian Muhammad Nawaz Sharif, as such it cannot be held that the appellants are absconders; that the appellants are sufferers of political victimization at the hands of those who were at the helm of affairs and were angry and inimical to them for their honest performance of official duties, therefore, their case cannot be clubbed with other cases and has to be assessed and decided independently; that after granting bail while approaching the Court of learned Special Judge, Central and facing trial, the appellants were forced to leave the country when so called conviction and sentence was awarded; that immediately after the judgment was rendered by the Honourable Supreme Court of Pakistan that provisions of NRO are illegal and judgment under Section 31-A of the NAO, 1999 shall remain intact and shall be challenged under the law, the appellants filed the appeals and this Court after entertaining the appeals suspended the sentence being patently void and not maintainable.
6. It is further argued by the learned counsel for the appellants that as per the law declared in Nawaz Sharifs case, the question of limitation is of no legal importance and the appeal can be decided on merits and as the impugned judgment is patently void ab-initio, hence the same is not maintainable; that the learned Special Judge Central, Rawalpindi confirmed the ad-interim post arrest bails of the appellants in case FIR No, 14/1996, which order was never challenged, therefore, question of abscondence does not arise; that the appellant A. Rehman Malik was arrested in case FIR No, 14/1996 in which he was allowed bail and was released from jail on 01.01.1997, when he was again arrested in FIR No, 1/1997 on the basis of political victimization. Lastly argued that the appellant A. Rehman Malik has been involved in the case on account of political victimization while performing his duties honestly and diligently as Additional Director General, FIA; he was forced to leave the country to remain exile till the time when he could reenter the country after enforcement of NRO on 05.10.2007; after a short while when he re-entered the country on 18.10.2007, he surrendered himself before the learned Accountability Court and applied for passing of order of acquittal in terms of NRO, which was allowed; appeal has been filed before this Court in obedient implementation of the judgment rendered by the Apex Court; he has been appearing before the learned Accountability Court regularly except the dates on which he was granted exemption. In support of his various contentions, noted above, the learned counsel has relied upon the following judgments:-- Abdul Sattar Dero vs. The State (2002 YLR 1870); Abdul Rehman vs. The State (1978 SCMR 292); Faisal Jameel vs. The State (2007 MLD 355); The State through Prosecutor General, NAB Pakistan vs. Dr. Dad. Muhammad Khawaja Khail (PLD 2003 SC 11); Land Acquisition Collector, Nowshera and others vs. Sarfaraz Khan and others (PLD 2001 SC 514); Mst. Mussarat Ara Khannum vs. Umaid Ali and another (2001 SCMR 1647); Muhammad Shafi vs. Mushtaque Ahmad through Legal Heirs and others (1996 SCMR 856); Khuda Bakhsh vs. Khushi Muhammad and 3 others (PLD 1976 SC 208); N.M.V. Vellayappa Chettiar vs. Alagappa Chettriar (AIR 1942 Madras 289); Zahid Iqbal vs. State (PLD 1991 SC 575); Hayat Bakhsh and others vs. The State (PLD 1981 SC 265); Haji Rehmdil vs. The Province of Baloshistan and another (1999 SCMR 1060); Mansoor Ahmad Qureshi vs. The State (PLD 2005 Karachi 443); Noor Muhammad Khatti and others vs. The State (2005 P.Cr.LJ 1889); The State through Prosecutor General, NAB, Islamabad vs. Aftab Ahmad Khan Sherpao (PLD 2005 SC 399); Mehram Ali and others vs. Federation of Pakistan and others (PLD 1998 SC 1445); For the submission that in criminal cases, limitation is not of much importance and the case is to be decided on merits, the following judgments have been cited: Federation, of Pakistan and others vs. Mian Muhammad Nawaz Shari f and others (PLD 2009 SC 644); Mian Muhammad Nawaz Sharif vs. The State (PLD 2009 SC 814); Ziaul Rehman vs. The State (2001 SCMR 1405); The State through National Accountability Bureau, Islamabad vs. Haji Nasim-ur-Rehman (PLD 2005 SC 270); Mrs. Shahida Faisal vs. Federation of Pakistan and others (PLD 2005 SC 323).
7. The learned counsel for the other appellants/petitioners almost adopted the arguments of Ch. Mushtaq Ahmad Khan, Advocate.
37. However, the accumulative submissions made by learned counsels for all appellants/petitioners, in our words, are summed up as under: A. Rehman Malik & Sajjad Haider:
(i) When proceedings dated 14.12.1998 under Sections 87/88 Cr.P.C. were undertaken by the Court, offence under Section 31-A of NAO, 1999 did not exist;
(ii) On 01.01.1997, an FIR under Sections 161, 167, 177, 420 PPC read with Section 5(2)47 of PCA was registered and on 13.11.1997 the appellants were admitted to bail; (iii)On 24.04.2000, both the appellants/accused were not present when proceedings under Section 87/88 Cr.P.C. were initiated; (iv)On 12.12.2003 order under Section 16-A of NAO, 1999 was passed and the case was transferred to NAB;
(v) No proceedings in the meanwhile were taken and no reference was filed; (vi)On 12.01.2004 the learned Judge passed the judgment under Section 31-A of the NAO, 1999 and sentenced the appellants in absentia; Sadiq Ali Khan:
(i) The process was issued in absence of the appellant/petitioner and when he left the country, no Reference was pending against him and the proceedings started in his absence.
(ii) The appellant/petitioner was never served in the proceedings, he never absconded; therefore, his conviction in absentia is void ab-initio.
38. Sikandar Ali Abbasi:
(i) The appellant/petitioner never received any notice, proclamation, information about the Reference, although his whereabouts were available and fake and bogus proceedings were mace against him.
39. (ii)The appellant/petitioner was out of country and was convicted in absentia, which is quite illegal and unlawful.
40. (iii)As far as the other co-accused were concerned, Anwar Saif Ullah and Dr. Safdar Ali Abbasi were acquitted after full-fledged trial and Gul Muhammad Khan entered into plea bargain. All the loss was paid by the company, which is depicted from letter dated 09.03.2002. No loss stood against any individual. No notice was received regarding any proceedings pending in the Court.
41. Sardar Mansoor Khan Leghari:
(i) The appellant/petitioner came back to Pakistan on 22.10.2007 and thereafter preferred an appeal; (ii)Amendment i,e, Section 31-A of NAO, 1999 came into play when the appellant/petitioner was out of country; as his trial had already been seParated under Section 512 Cr.P.C., therefore, he was awarded the sentence on the same day.
42. Manzoor Hussain Shah:
(i) The appellant/petitioner left Pakistan in the year 2001 before he had exonerated; (ii)In 2003 the investigation was undertaken by the NAB and on 08.12.2003 the appellant/petitioner was convicted under Section 31-A of the NAO, 1999; Islamabad High Court granted bail to the appellant/petitioner on 07.08.2008; meanwhile he got benefit of Section 33-F of the NRO, and subsequently Apex Court declared Section 33-F as void ab-initio and unconstitutional.
8. After giving the succinct facts and the submissions made by learned counsel for the parties, we find the following common points of law:
(i) Whether the proceedings under Sections 87/88 Cr.P.C. vice versa under Section 31-A of NAO, 1999 are synonymous and complimentary to each other? If so, what is the effect of these proceedings?
43. (ii)Whether Section 16-A of the NAO, 1999 is non-abstante or contains deeming clause?
44. (iii)All the arguments if accepted, whether the status of accused reverts to status quo ante position?
45. (iv)Whether the warrants of arrest issued by the Chairman NAB respectively for each accused are still executable or not?
46. (v)What is custodia legis and whether it amounts to surrender before the Court or includes arrest also?
9. Relating to the above noted points, the submissions of learned counsel for the appellants are:--
(i) That as the proceedings under Sections 87/88 Cr.P.C. were already initiated against the accused/appellants and the offence under Section 31-A of NAO, 1999 though not a substantive offence, was brought on the statute book on 03.02.2000, therefore, the trite law is that no offence can be applied retrospectively and application of offence was always prospective, so sentence in absentia passed against the accused/appellants was nullity in the eyes of law and void ab-initio.
47. (ii)That cases were got transferred to Accountability Courts under Section 16-A of NAO, 1999 and no reference within the meaning of Section 18 of the NAO, 1999 was filed; Section 16-A is a non- abstante clause, reference should have been filed seParately against each and every accused.
48. (iii)All the arguments if accepted by this Court regarding these accused, the proceedings would revert to position ante at the stage of proceedings initiated under Sections 87/88 Cr.P.C. position and there would be a vacuum as far as proceedings under Section 31-A of NAO, 1999 were concerned.
49. (iv)That as the transfer of cases to Accountability Courts were under Section 16-A of NAO, 1999 and subsequent to that no independent reference was filed, therefore, in the meanwhile issuance of warrants of arrest by the Chairman, NAB was also nullity in the eyes of law;
(v) That custodia legis is synonymous to legal custody and is sufficient if the accused person surrenders before any Court of law and while showing, exhibiting and demonstrating mala fides, obtains some protection and cover against arrest.
10. On the other hand, the learned counsel appearing on behalf of the NAB submits:-
(i) That proceedings under Sections 87/88 Cr.P.C. and Section 31-A of NAO, 1999 are akin and complimentary to each other.
50. (ii)That all these judgments were not passed in random but were announced after recording of evidence.
51. (iii)That when the accused were declared P.Os, the offence was already at the statue book.
52. (iv)That there was no need to have filed seParate reference alongwith the case after its receipt from the concerned Court, as Section 16-A of NAO, 1999 contains a deeming clause.
(v) That factually, references against Manzoor Hussain Shah, Sadiq Ali Khan, Mansoor Khan Leghari, Dr. Abbasi were signed by Chairman, NAB but the same was not sine qua non in the cases received under Section 16-A, of NAO, 1999.
53. (vi)That references filed under Section 16-A of NAO, 1999 are references within the meaning of Section 18 of NAO, 1999.
(vii) That the warrants of arrest issued by the Chairman, NAB are still intact.
(viii) And that custodia legis in these cases is to be taken with warrants of arrest issued by the Chairman, NAB if the position is reverted to status quo ante position.
54. 11.Heard. Record perused.
12. As the proceedings under Sections 87/88 Cr.P.C. and Section 31-A of NAO, 1999 are compelling process issued against the accused to procure his attendance in the Court therefore, are complimentary to each other and if there was no sentence attached to Section 31-A of NAO, 1999 were synonymous, thus the Courts are left with no option but to initiate proceedings forcing an accused to appear before the Court. But from Zia Ullah's case till Mehram Ali case till today trial in absentia has been declared void ab-initio within the meaning of Articles 9/10 of the Constitution.
55. Section 16-A of NAO, 1999 is not a non-abstante clause rather a self executor provision in which the mechanism evolves is to see whether offence falls within the ambit of Section 9 of NAO, 1999 and as also contained deeming clause; therefore, case requested to be transferred to Accountability Court can be treated as Reference within the meaning of Section 18 of NAO, 1999.
13. National Accountability Ordinance, 1999 has been given retroactive effect from 1985, therefore, the arguments advanced by the learned counsel for the appellants carries no weight that offence cannot be applied as retrospectively. We are of the firm view that sentence of offence cannot be enforced retroactively, whereas the offence can be applied prospectively. When Section 31-A of NAO, 1999 was declared being ultra vires by Apex Court with reference to sentence and proceedings therein the cases would go and revert to the position of when these were transferred to Accountability Courts under Section 16A of NAO, 1999. Therefore, the warrants of arrest containing grounds of arrest would be deemed to be intact and still executable by NAB.
14. Custodia Legis is legal custody and amounts to surrender before the Courts of law under the principle that presence of accused is sine qua non before the Court, therefore, one can only seek protection of Court if he surrenders before the Courts of law but here in present exigency as there is longstanding abscondence of the accused and deliberately avoided service of Courts coupled with the fact that warrants of arrest issued by the Chairman, NAB were, still intact, therefore, as held by the Apex Court in the judgment dated 16.12.2009 passed in Constitutional Petition Nos,76 to 80 of 2007 & 59/2009 and Civil Appeal No, 1094 of 2009 and HRC Nos, 14328-P to 14331-P & 15082-P of 2009, reported as Dr. Mobashir Hassan and others vs. Federation of Pakistan and others (PLD 2010 SC 265), the accused are to be arrested in these cases to execute the warrants of arrest.
56. Paragraphs No, 71 to 73 of the judgment are reproduced below: "71. On having gone through the above judgment, it is crystal clear that offence falling within the mischief of Section 31A of the NAO, 1999 is distinct offence, from the allegations made in the reference, which was filed against an accused and if the convict has been acquitted in the reference or the reference has been withdrawn, even then the conviction under Section 31A of the NAO, 1999 remain, operative and the convict has to avail remedy, for getting it set aside, by approaching the next higher judicial forum, as envisaged under Section 32 of the NAO, 1999.
57. 72.As discussed above, conviction in absentia is a final order, therefore, no other forum can declare such conviction as void, except a judicial forum, that too, by filing an appeal. But in instant case, as it has been pointed out herein above, by amending a law, such conviction has been declared, void, therefore, the amendment in Section 31A of the NAO, 1999 by inserting clause (aa), by means of Section 6 of the NRO, 2007; is declared void being against the provisions of Section 31A read with Section 32 of the NAO, 1999, which provides remedy to the convict to file appeal.
58. 73.There is another judgment in the case of The State v. Aftab Ahmad Khan Sherpao (PLD 2005 SC 399), in which appeal filed by the State against the acquittal of the respondent, has been dismissed, inter alia, for the reason that the respondent convict under Section 31A of the NAO, 1999, voluntarily surrendered himself before the High Court where appeal against his conviction was pending; he was acquitted of the charge under Section 31A by the High Court, which was considered to be unexceptional and the State appeal was dismissed. This Court in another judgment in State Naseem-ur-Rehman (2004 SCMR 1943) in respect of the respondent, convicted under Section 31 A of the NAO, 1999 observed that it was obligatory upon the convict to approach the Court; first of all he should surrender to the order of his imprisonment; meaning thereby that, on surrendering before, the Court he should be taken into custody and the Court might order for his release in appeal and if such person is not taken into custody or not admitted to bail, then he will be deemed to be fugitive from law and would not be entitled to any relief."
15. It is also observed that all these cases relate to special law i,e, FIA and Anti-Corruption where from these cases were brought to NAB and in Accountability Courts. Now keeping in view the two principles that in case of any controversy or lis between two special laws, later shall prevail and with transition of jurisdiction from other Courts to NAB Courts the offences were also changed after transitional process in which the accused are not on bail, but having created this vacuum also the accused are left to be not on bail in substantive offences, therefore, they are to be arrested otherwise. In the light of above, all the Criminal Appeals and the Writ Petitions are hereby dismissed.