' ROOH-UL-AMIN KHAN, J. -Our this common judgment shall dispose of the instant Ehtesab criminal appeal filed by appellant-convict Zaro Jan as well as Writ Petition No,2705-P/2013, and Writ Petition No,2706-P/2013, filed by petitioners/Benamidaran Majeed Khan and Ihsan Ullah, against the Director General National Accountability Bureau, Khyber Pakhtunkhwa, Peshawar through Deputy Prosecutor General NAB Khyber Pakhtunkhwa and others, as all the three matters are stemming out of the same judgment of Judge Accountability Court No,121, Peshawar dated 7-9-2013, in Reference No,1 of 2010, whereby appellant Zaro Jan has been convicted under section 10 of the National Accountability Ordinance and sentenced to undergo 6 years' rigorous imprisonment with a fine of Rs,1,18,8,745/- present market value Rs,1,97,17,256/-. His assets found disproportionate to his known sources of income and in the name of Benamidaran i,e, his son Ihsan Ullah and Majeed Khan son- in-law (petitioners of the writ petitions), have been forfeited in favour of the State. The amount of fine shall be recoverable from the appellant as arrears of land revenue under section 33-E. Benefit of section 382-B Cr.P.C. Has been extended in his favour.
2. Brief history of the case, forming the background of the instant appeal and two writ petitions is that appellant- convict Zaro Jan served in Frontier Constabulary and retired from the service as Superintendent BPS-16 on 5-6-2007. Director General National Accountability Bureau (NAB), on receipt of credible information qua accumulation of movable and immovable properties/assets by the appellant at his name and in the names of his dependents and binamidaran, during his service, being disproportionate to his known sources of income, authorized an inquiry against him on 20-1-2009, which on verification was converted into investigation and consequently, reference was filed against the appellant before the Accountability Court-II, Peshawar, where he was charged sheeted under section 10 of the National Accountability Ordinance, 1999, to which he pleaded not guilty and claimed trial. To prove the guilt of the appellant, prosecution examined as many as thirty-eight (38) witnesses. After close of the prosecution evidence, statement of the accused-appellant was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He also wished to be -examined on oath under section 340(2), Cr.P.C. And to produce evidence in defence. Besides recording his statement on oath, he produced some thirteen witnesses in his defence. On conclusion of trial, the learned trial court, after hearing both the sides, convicted and sentenced the appellant as mentioned above. In addition to conviction and sentence of the appellant and besides confiscation of his property/assets, the properties of the petitioners of the two writ petitions, Inshanullah and Majeed, were also confiscated to the State.
3. We have heard the exhaustive arguments of the learned counsel for the parties and have perused the record with their valuable assistance.
4. It appears from the record, particularly from the impugned judgment of the trial court, that besides conviction and sentence of the appellant, the properties of Benamidaran namely Ihsan Ullah (son of the appellant-convict) and Majeed Khan (son-in-law of the appellant), have also been confiscated in favour of the State. Both, benamidaran have also questioned the judgment of the trial court by filing separate writ petitions mentioned above, alleging therein that they have been condemned unheard. It is manifest from the record that the trial court while confiscating the properties/assets of Benamidaran, has not provided an opportunity to them to produce evidence in support of their claims regarding ownership of relevant assets in their own right or to substantiate that they had sufficient sources of their own to acquire the confiscated properties. The learned trial court ought to have given a notice to Benamidaran and an opportunity of hearing, before passing the impugned judgment. No doubt, Benamidaran were fully aware and in the knowledge of the proceedings before the trial court, being closely related to the appellant wherein they also appeared as defence witnesses but their appearance in the capacity of defence witnesses for accused would not by itself be a valid substitute of notice to afford them opportunity of hearing and leading evidence, if so deemed proper by them in support of their claims to be legitimate owners as having rightful interest in the properties. It is principle of universal application that nobody should be condemned unheard, as maxim of Audi altrem partem, is very jealously and consistently followed by the Courts, which is also the principle of natural justice. Thus, the trial court was obliged to have issued notice to the alleged Benamidaran during proceedings and afforded them opportunity of hearing and to allow them to produce evidence in support of their claim, but contrary to that, the trial court did not follow such course and offended guaranteed right of hearing of the Benamidaran before passing adverse order against them and thereby confiscated their properties in which vested right is being claimed by the Benamidaran. Such forfeiture of the properties is unlawful and unsustainable unless questions relating to Benami transaction in which certain rights and interests claimed by Benamidaran are determined by the trial court in overall perspective of evidence. The same controversy cropped up before this court in Ehtesab Criminal Appeal No,3 of 2002, and his lordship Mr. Justice Abdul Rauf Khan Lughmani while resolving the same in light of dictum of the Hon'ble Supreme Court in numerous judgments, set aside the impugned judgment as well as conviction and sentence by accepting the writ petitions and the appeal and remanded the case with the direction to the Accountability Court to first issue show cause notices to the benamidars in accordance with law as to why their properties be not confiscated, the benamidars will be at liberty to adduce evidence which they wish to adduce and of course subject to discretion of any P.W. For cross examination to the extent of ownership or the history of the property. We deem it appropriate to reproduce the observations in the judgment Supra for ready reference:- "The question is whether forfeiture of assets of the petitioners is in violation of the maxim audi alteram partem (no man shall be condemned unheard). Indeed the forfeiture of the property in the name of the petitioners is violation of the principle- of natural justice. Merely because there is no provision in the NAB Ordinance providing for show cause notice will not stand in the way of the petitioners. I am supported in my view by The case of "Commissioner of Income Tax v. Fazal ur Rehman" (PLD 1964 SC 411), wherein it was held that mere absence of a provision as to notice in statute cannot over-ride principles of natural justice, that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that party. Similar view was taken in the case of "Province of East Pakistan and another v. Nur Ahmad and another" (PLD 1964 Supreme Court 451). Again in case of "Mst. Jamshed Begum v. Chief Land Commissioner etc" (1983 Pakistan Supreme Court cases page 538), the view was re-affirmed by observing that rules of natural justice are to be read in every enactment unless expressly otherwise provided.
5. It is not disputed that no such notice or opportunity was given to the recorded owners/Benamidaran of the properties involved in the present case. The question under discussion came up for consideration in case of "Muhammad Hussain v. The State" Ehtesab Appeal No,09/2000 decided on 28-6-2001, whereby the conviction was set aside and the case was remanded to the Accountability Court for recording evidence afresh so that the alleged benamidars may have a chance to cross-examine the witnesses and afford opportunities to them.
The benamidars in the said case were father, mother and sister. However, on appeal the honourable Supreme Court modified the order of this court to the extent that the benamidars shall be called upon to show cause as to why their properties should not be confiscated by the Accountability Court and benamidars can recall any PW for cross-examination. (Criminal Petition No,221 of 2001 (State through Prosecutor General v. Mehmood Hussain decided on 2-10-2001.
' It will be useful to refer to the case of "Mst. Zahida Sattar and others v. Federation of Pakistan and others" (PLD 2002 Supreme Court 408) wherein the benamidars were wife, real brothers, sons, sisters-in-law, daughter and mother.
"16. The law by now is firmly settled that no person can be condemned unheard as regard any matter in which he has any interest. It has also been laid down as principle of law by the superior courts that in every statute principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the court under NAB Ordinance, we would hold that he (Benamidar) has a right to approach the said court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case. As regards remedy of appeal, it being a substantive right cannot be availed by a person unless conferred by the Statute. Under the relevant provision of NAB Ordinance as regard appeal against final judgment of the Accountability Court, it can only be maintained by the State or the accused person. This being so, the ostensible owners or benamidars if heard by the Accountability Court and findings recorded against them, may invoke any other remedy in such situation including remedy under Article 199 of the Constitution".
6. In case titled, "Syed Zahir Shah and others v. National Accountability Bureau and others" (2010 SCM R 713), the honourable apex court while setting aside the conviction and sentence remanded the case to the trial court to afford opportunity of hearing to alleged Benamidaran to produce evidence if so deemed proper and likewise authorities would have right of rebuttal and hearing.
The honourable Supreme Court while taking into consideration the non-issuance of notice to Benamidar, appearance of Benamidar as defence witness, observed the following in Para No,19 of the judgment (supra):-- "In view of the dictum, laid down by this court in above-mentioned reported case, there is no cavil with proposition that it was obligatory on the part of the Trial Court to have issued notice to the alleged Benamidars during proceedings and to have afforded them opportunity of hearing and to produce evidence in support of their alleged claims if so deemed proper by them or either of them which course having not been followed, offended the guaranteed right of hearing before passing an adverse order against any person or property, in which a vested right or interest has been claimed or be even ostensibly the recorded owner/s or appears in the names of the petitioners consequently, rendered the forfeiture of the properties as unlawful and unsustainable unless the questions relating to the Benami transactions in which certain rights and interest claimed by the petitioners were determined by the trial court in the overall perspective of evidence. Moreover, on determination of the same the criminal liability of the appellant in the case and the extent to which he could actually be found liable can be effectively determined".
7. The entire scheme of National Accountability Ordinance, neither provides any remedy to Benamidar against an order of the trial court qua confiscation of their property nor an opportunity to defend himself. In the above referred judgments, the Hon'ble Supreme Court, has laid down as a principle of law that no person shall be condemned unheard as regard any matter, in which such person has interest. The apex court has firmly settled that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the instant case, the petitioners of the two writ petitions, referred to above, have appeared before the trial court and have recorded their statements but in support of the appellant-accused. After recording evidence of Benamidaran/the petitioners, the trial court, if was unsatisfied and was going to pass an adverse order against them, then, under the principle of audi alteram portent, it was incumbent upon the trial court to summon the petitioners/benamidaran and give them opportunity to produce evidence in support of their claim as to ownership or to substantiate that they had sufficient source of their own to acquire the properties, so confiscated by the trial court. In Mst.
Zahida Sattar's case (PLD 2002 SC 408), the apex court had gone on to recommend to the Federal Government to suitably amend the National Accountability Ordinance, 1999. The relevant Para No,18 of the judgment (supra) is reproduced below:-- "18. Before parting with this judgment, we shall recommend the Federal Government to consider the desirability of making amendments in the .NAB Ordinance providing that in a case in which holder of public office is sent for trial of charges of corruption for acquiring assets beyond his means in the names of other persons as benamidars, such other persons/ostensible owners should necessarily be summoned by the Accountability Court to provide them opportunity during the trial to prove that the said assets were acquired by them from their own resources and in case, finally it is decided that the charges against the accused person had been proved, and such persons had failed to prove acquisition of assets from their own sources, they should be provided remedy of appeal in the same manner as is available to the accused persons in order to avoid any further litigation or complication which would advance the ends of justice".
8. We, while taking guidance from the dictum laid down by the Hon'ble Supreme Court and this court in the judgments referred to above, without dilating upon the merits of the case, which may prejudice the case of either side and influence the mind of the trial court one way or the other, we are of the firm view that petitioners of the two writ petitions i,e. Writ Petition No,2705-P/2013, and Writ Petition No,2706-P of 2013, have been condemned unheard, without providing them an opportunity of defence, thus, by allowing this appeal we remanded the case to the trial court for decision afresh in light of the observations in the judgment, and the following, short order of even date was passed:-- ' For the reasons to be recorded, later on, we allow this appeal, set aside the conviction and sentence of the appellant-convict Zaro Jan recorded by learned trial court/Judge Accountability Court No,11, Peshawar vide impugned judgment dated 7-9-2013, in Reference No,1 of 2010.
Resultantly, the case is remanded to the trial court for decision afresh with the direction to first issue show cause notices to the benamidars, namely Majeed Khan and Ihsan Ullah, in accordance with law as to why their prosperities be not confiscated. The benamidars will be at liberty to adduce evidence. The appellant-convict is in Jail since the date of his arrest, who has faced the agonies of protracted trial, we would, therefore, admit him to bail provided he furnishes bail bonds in the sum of Rs,25,00,000/- (Twenty five lac) with two sureties each in the like amount to the satisfaction of the trial court/Accountability Court No,11, Peshawar.
' Consequently, on setting-aside of the impugned judgment of the trial court, the connected W.P.
No,2705-P12013, titled, "Majeed Khan v. Director General National Accountability Bureau, Khyber Pakhtunkhwa, Peshawar etc." and W. P. No,2706-P/2013, titled. "Ihsan Ullah v. Director General National Accountability Bureau, Khyber Pakhtunkhwa, Peshawar etc" are disposed of accordingly.