IJAZ AHMED CHAUDHRY J.---Through the instant appeal under section 32 of the National Accountability Ordinance, 1999, Sohail Zia Butt, petitioner calls in question the legality of the judgment dated 12-8-2002 passed by Mr. Abdul Ghaffar Khan, Judge, Accountability Court No.II, Lahore whereby he convicted the appellant under section 31-A of the National Accountability Ordinance 1998 in Reference No.31 of 2001 and sentenced him to three years' R.I.
2. Briefly the facts, relevant for the disposal of this appeal, are that the Chairman National Accountability Bureau filed NAB Reference No.31 of 2001 against the appellant and others under sections 18(g) and 24(b) of the NAB Ordinance, 1999 before the learned Accountability Court No.2, Lahore, alleging therein that National Industrial Cooperative Finance Corporation Limited was registered by the Registrar Cooperative Societies, Lahore Region Lahore under the Cooperative Societies Act, 1925, of which Cli. Tajamal Hussain, Ch. Abdul Majeed, Mehr Khuda Dad Khan Luk, Sh.
Muhammad Munir and Ch. Ghulam Rasool Advocate were President, Executive Directors and Directors respectively. On the reports that the Management of NICFC in connivance with Sohail Zia Butt, appellant and Awaiz Zia Butt caused great losses to NICFC through fraud and embezzlement of funds, therefore, the matter was referred for investigation which was conducted by the Anti- Corruption Establishment Punjab whereafter the Investigating Officer submitted his report under section 173, Cr.P.C. During the investigation it transpired that in the year 1988 Ch. Abdul Majeed, Executive Director, NICFC along with other accused directors proposed to purchase property known as Ahmad Mansion, 49-A. The Mall, Lahore in the name of NICFC. A note dated 7-9-1988 was prepared by the NICFC office stating proposal to purchase Ahmad Mansion and it was sent to the Legal Advisor for opinion. On 14-9-1988, the Legal Advisor advised not to purchase the said property and in spite of the legal advice an agreement dated 23-10-1.988 was executed between Sohail Zia Butt, appellant whereby the appellant was made partner in 50% net profit to be received after purchase of Ahmad Mansion without any investment by him but on a condition that Sohail Zia Butt would get Ahmad Mansion vacate from the unauthorized occupants and hand over possession of the vacant building to the NICFC. The said agreement was approved by Ch. Tajamal Hussain, Ch. Abdul Majeed, Mehr Khuda Dad Khan Luk, Sh. Muhammad Munirn, Ghulam Rasool Advocate and Major (R.) Barkat Ali Khan in Board meeting through Resolution No.1289 dated 6-10-1988 and Sohail Zia Butt was paid Rs.2 million on 14-9-1991 by the NICFC. On 6-3-1989 NICFC purchased 85% portion of Ahmad Mansion for Rs.15.10 Million from 18 vendors. The remaining 15% share of the property was not in possession of vendors. This portion was in illegal possession of trespassers though owned by one Sadat Ali Khan. Awais Zia Butt, co-accused in collaboration with other co-accused entered into a sham sale agreement on 27-11-1989 with Sadat Ali Khan of 15% share of Ahmad Mansion for Rs.3.2 Billion and Awais Zia Butt in connivance with accused Nos. 1 to 6 executed an agreement with NICFC for sale of 15% share in Ahmad Mansion for Rs.6.5 Million. The NICFC paid Rs.6.5 Million to Awais Zia Butt accused through debit case voucher dated 21-5-1990 without completion of sale- deed, which subsequently was executed by Sadat Ali Khan as yendor in favour of NICFC. In this way Awais Zia Butt co-accused illegally pocketed more than Rs.3 Million in connivance and in collusion with the other accused persons whereas the said property is still in possession of illegal occupants.
Major (R) Barkat Ali Khan was found innocent during the investigation and his name was placed in column No.2 the report under section 173, Cr.P.C. In this way, accused Nos.1 to 7 in connivance and in collusion with each other fraudulently and dishonestly cause clossal loss to the NICFC and the accused persons committed acts of corruption and corrupt practices as defined under section 9 of the NAB Ordinance and Schedule thereof.
3. After submission of the Reference the learned trial Court charge-sheeted the co-accused but proceeded against the appellant under sections 87/88, Cr.P.C. For procuring, his attendance and also issued, proclamation. The learned trial Court after conclusion of the trial while convicting the co-accused of the appellant for various terms of imprisonment and fine also convicted the appellant under section 31-A of the NAB Ordinance and sentenced him to three years. Hence the present appeal.
4. Learned counsel for the appellant contends that the appellant has been convicted and sentenced by the learned trial Court in absentia in violation of Articles 9 and 10(1) of the Constitution of Islamic Republic of Pakistan, 1973; that when it had come to the knowledge of the learned trial Court through reports of process server that the appellant had gone abroad then any proclamation attachment proceedings under sections 87/88, Cr.P.C. On account of his non- appearance are without jurisdiction; that it appears from the tenor of the judgment that neither any charge was framed nor the mandatory provisions for the commencement of trial were followed; that C.W.1 Raza Hussain A.S.-I. While appearing in Reference No. 16 of 2001 had admitted that the appellant had gone abroad on 10-5-2000 seven months prior to the issuance of warrant of arrest by the Chairman NAB and there is no evidence on record to the effect that the appellant had intentionally absconded in order to avoid being served with any process issued by any court or any other authority. He relies upon Manzar Qayyum v. The State and others (PLD 2006 Supreme Court 343).
5. On the other hand, the learned Special Prosecutor for NAB while opposing this appeal contends that the same is badly barred by time and section 5 of the Limitation Act does not apply as the NAB Ordinance being a special law over-rides the general law as held in Allah Dino and another v.
Muhammad Shah and others (2001 SCM R 286) and Hafeez Ahmed v. Civil Judge Lahore (2008 M LD 91); that the appellant never produced his passport in order to show his exit entry and only relied upon a ticket which does not show that the appellant had actually travelled abroad; that the wife of the appellant was served, his brother was served and presumption can be drawn that the appellant had the knowledge of pendency of reference against him, as such, the appellant had intentionally and deliberately avoided his appearance to face the reference, as such, the learned trial court has rightly convicted and sentenced him.
6. We have heard the learned counsel for' the parties and also perused the available record. There is no cavil to the proposition that section 31-A of the National Accountability Ordinance, 1999 constitutes A a distinct offence. Now the pivotal question to be considered by this Court is that as to whether the appellant had absconded in order to avoid being served with any process issued by any Court or any other authority or officer under the National Accountability Ordinance, 1999. In this context we have come across a statement made by Raza Hussain A.S.-I. Who appeared as C.W.1 before the learned trial Court in Reference No. 16 of 2001 and admitted that the appellant had gone abroad on 10-5-2000 whereas the warrant for the arrest of appellant was issued by the Chairman NAB on 12-1-2001 and the reference was filed in the Court on 1-5-2001, as such, prima facie it appears from the record that when the B proceedings under section 31-A of the NAB Ordinance were initiated against the appellant he was not present in Pakistan and had already gone abroad before initiation of the proceedings in question and he was unaware of the said proceedings. There is nothing on record which could be suggestive of the fact that the Chairman NAB had ever issued any process against the appellant at his address abroad. In such circumstances the, prosecution has badly failed to prove the fact that the appellant had deliberately or wilfully evaded to appear.
It has time and again been held by the Apex Court that trial in absentia offends against the provisions of Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 which provides that "No person shall be deprived of life and liberty save in accordance with law", therefore, the conviction and sentence awarded by the learned trial Court to the appellant is not at all sustainable in the eyes of law.
7. The judgment in question is also not sustainable in view of the judgment dated 27-6-2001 passed by the learned trial Court against the appellant in NAB Reference No.16 of 2001 wherein he was also convicted under the same offence under section 31-A of the NAB Ordinance, 1999 which is violative of Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973.
8. The argument of the learned Special Prosecutor for NAB that the instant appeal is not maintainable as being barred by time has no force at all for the reason that since the judgment convicting the appellant was passed in his absentia and he had no C knowledge of the passing of the conviction against him, therefore, the limitation would run from the date of gaining the knowledge by the appellant that he had been convicted and sentenced. The case-law cited by the learned Special Prosecutor is not relevant to the facts and circumstances of the present case as those cases were related to the provisions of section 115, C.P.C. And are distinguishable from the facts of the case in hand.
9. For what has been discussed above, we allow this appeal, set aside the impugned judgment and remand the case to the learned trial Court for holding fresh trial of the appellant in accordance with law by affording him the opportunity to defend him subject to deposit of an amount of Rs.
20,00,000 with the learned trial D Court who shall keep this amount in its safe custody till the final conclusion of the trial and will finally determine the fate of the aforesaid amount in its final judgment. At present the petitioner is in jail who shall be released forthwith by the learned trial Court after deposit of the aforesaid amount.