Questions the legality and validity of order dated 2nd of September, 2003, whereby the learned Judge, Accountability Court No,V, Lahore in Accountability Reference No,40 of 2002, due to nonappearance of the appellant and in pursuance of declaration as absconder, recorded conviction against him under section 31-A of The National Accountability Ordinance, 1999 (Ordinance XVIII of 1999) (Hereinafter called Act XVIII of 1999) and was awarded sentence of three years Rigorous imprisonment.
2. Learned counsel for the appellant contends that the pendency of Reference was not in the knowledge of appellant and he also did not receive any intimation through any source regarding the pendency of the Reference and as such his absence was neither intentional nor willful.
3. Questioning the legality and validity of order of conviction dated znd of September, 2003, it was submitted that the order passed by the learned Accountability Court is illegally not sustainable.
Help was sought from the dictum laid down in "Noor Muhammad Khatti and others v. The State"
(2005 PCr.LJ 1889) and "Muharam Ali v. Federation of Pakistan" (PLD 1998 SC 1445). Also relied upon the decision made in Writ Petition No,4048 of 2010 and unreported judgment dated 25th of March, 2014, handed down by this Court in Writ Petition 2154 of 2010, placed on file.
4. Legality of the conviction under section 31-A of Ordinance XVIII of 1999 is now well settled proposition of law. There can be no cavil to the proposition that the provisions of section 31-A of Ordinance XVIII of 1999 are against the mandate of Article 10-A of The Constitution of the Islamic Republic of Pakistan, 1973, and as such the fact by itself is sufficient to set-at-naught the order of conviction.
5. Learned Senior Special Prosecutor, however, opposed the appeal on, the plea of limitation contending that the conviction was recorded against the appellant on 2nd of September, 2003, but present appeal has been preferred on 10th of September, 2015, which is hopelessly barred by time.
There is a specific assertion on behalf of the appellant in para 4 of the memorandum of appeal that he was arrested on 30th of June, 2015 and was sent to jail on 1st of September, 2015, on judicial remand and then he got knowledge regarding the order of conviction.
6. Admittedly, the appellant did not participate in the proceedings in Reference No,40 of 2002 and as such period of limitation shall be computed from the date of knowledge of the appellant which according to para 4 of the memorandum of appeal is 1st of September, 2015 and as such argument advanced by learned Senior Special Prosecutor is without force.
7. Pursuant to above, while accepting the of conviction dated 2nd of September, 2003 is hereby set aside.
8. It has been informed that the appellant was arrested in pursuance of non-bailable warrant of arrest and has been sent to judicial rock-up. Certified copy of the order dated 14th of September, 2015, has been made part of the record according to which NAB does not want to submit fresh challan and request has been made to the learned trial Court to commence proceeding in Accountability Reference No.40 of 2002.