' GHULAM MUSTAFA MENGAL, J.---This judgment shall dispose of Criminal Ehtesab Appeal No,6 of 2012, whereby appellant has prayed that the impugned order dated 30th May, 2011, passed by the learned Accountability Judge-I, Balochistan, Quetta, whereby he convicted the appellant under section 31-A of the National Accountability Ordinance, 1999 in Reference No,7 of 2009 and sentenced him to suffer imprisonment for three (3) years and the Writ Petition No,369 of 2012, whereby petitioner has prayed that pending disposal of the reference before the trial Court, the petitioner may be enlarged on bail in accordance with law.
2. Briefly the facts, relevant for the disposal of the case are that the Chairman, National Accountability Bureau filed Reference No,7 of 2009 against the appellant/petitioner and others under section 18(g) read with section 24(b) of National Accountability Ordinance, 1999, alleging therein that the co-accused Azmatullah, being Excise and Taxation Officer, Hub, Quetta and Dera Allah Yar with the connivance of other persons had registered various vehicles on fake and forged documents. It is further mentioned in the reference that the co-accused including the petitioner are beneficiaries, who had presented fake/forged documents to accused Azmatullah, who intentionally registered the vehicles of accused persons as genuine and caused loss of Rs,19,47,441 to the Government exchequer. As per allegations the petitioner had caused loss of Rs,4,93,352 for presenting forged/fake documents of vehicle No,JA-3452, Toyota Hiace Commuter Van STD. During course of the investigation co-accused Azmatullah filed an application for plea bargain, which was accepted against an amount of Rs,2.470934 million, which was confirmed by the trial Court vide order dated 26th December, 2008.
3. After submission of the Reference the learned trial Court proceeded against the petitioner/appellant and other co-accused persons under section 87/88, Cr.P.C. For procuring their attendance and also issued proclamation in the newspapers. The learned Accountability Court-1, Baluchistan, Quetta after conclusion of the trial, convicted the appellant/petitioner and others under section 31-A of, the National Accountability Ordinance, 1999 for three years vide order dated 30th May, 2011 and he was arrested on 7th May, 2012. Hence the present appeal/petition,
4. Mr. Manzar Siddique, learned counsel for the appellant/petitioner contends that the petitioner had never absconded rather he is permanent resident of Rawalpindi and not 'avoided any service of warrants and no notice was served upon him. He further contended that the petitioner was available at his residence and was arrested from the same: He further contended that the petitioner/appellant has been convicted and sentenced by the learned trial Court in absentia, which is in violation of Articles 9 and 10 of the, Constitution of Islamic Republic of Pakistan, 1973. He further contended that the appellant/petitioner was arrested on 7th May, 2012 and since then he is behind the bars, and there is no chance of conclusion of the trial in the near future, therefore, the petitioner is entitled to be released on bail till the final decision of the reference in question by the learned trial Court.
5. On the other hand Syed Abuzar Haider Rizvi, learned Special Prosecutor, NAB strongly opposed the bail application, contended that the appellant/petitioner 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 have gone through the reference filed against the petitioner and the impugned order We find from the facts reflected in the impugned order that the process server did not come in the witness box for the testimony. Chapter VI of the Cr.P.C. Deals with the process to compel appearance. This Chapter provides an exhaustive procedure. The procedure prescribed under section 87, Cr.P.C. Is to be adopted only after recording of evidence and this is followed by section 88 of the Cr.P.C., authorizing attachment of the property of the accused. In the instant case warrant of arrest of appellant/petitioner and other co-accused persons were issued and forwarded to the D.P.Os and Investigating Officer of the case but could not be executed. The proclamation under section 87, Cr.P.C. Was issued and notice was affixed on the notice board of the Court. Prima facie it appears from the record that when the reference was filed and proceedings under section 31-A of the National Accountability Ordinance, 1999 were initiated against the appellant/petitioner he was present in Rawalpindi and he was unaware of the said proceedings. There is nothing on record which could be proved that the trial Court issued any notice against the appellant/petitioner at his address given in the appeal/petition, as such, the prosecution has failed to prove that the appellant/petitioner had deliberately or wilfully absconded himself. It has been held by the apex Court that the trial in absentia is against the provisions of Articles 9 and 10 of the Islamic Republic of Pakistan, 1973, therefore, the conviction and sentence awarded by the learned trial Court is not sustainable in the eyes of law,
7. For what has been discussed above, we allow Appeal No,6 of 2012 and set aside the impugned order dated 30th May, 2011, passed by learned Judge, Accountability Court-I, Baluchistan, Quetta and remand the case back to the trial Court for holding fresh trial in accordance with law by affording him opportunity to defend himself. Consequently, we also allow the Petition No,369 of 2012 and admit the petitioner on bail subject to furnishing surety in the sum of Rs,5,00,000 (Rupees, five lacs only) and P.R. Of the like amount to the satisfaction of the Registrar/Additional Registrar of this Court or the trial Court.