Legality and validity of order dated 27th of November, 2013 handed down by the learned Judge, Accountability Court No, I, Lahore, has been called in question at the instance of petitioner, facing trial in Reference No, 62 of 2008 whereby the learned trial court dismissed the application made by Fareed Mughees Sheikh, co-accused, in the said reference, seeking an appropriate order for recording further prosecution evidence, but allowed the application made by the National Accountability Bureau under Section 17(c) of The National Accountability Ordinance. 1999 (XVIII of 1999) (hereinafter called "The Ordinance") dispensing with the provisions of Section 353 of The Code of Criminal Procedure, 1898 (hereinafter called The Code").
2. Facts in brief resulting in filing of present writ petition are that present petitioner along with co- accused was facing trial in Reference No, 62 of 2008 and after framing the charge, statements of certain witnesses (PW-1 to PW-6) were recorded, subject to cross-examination by the petitioner.
3. During the pendency of reference, the petitioner approached the Chairman, National Accountability Bureau, showing his intention to liquidate his liability while offering "plea bargain", which was accepted by the Chairman, National Accountability Bureau, and was duly endorsed by the learned Accountability Court on 11th of January, 2013, resulting in conviction of present petitioner.
4. Being dis-satisfied with the order of the Chairman, National Accountability Bureau, as well as learned Judge, Accountability Court No, I, accepting and endorsing the plea bargain, the Bank of Punjab filed Writ Petition No, 1709 of 2013 titled "BANK OF PUNJAB V. ACCOUNTABILITY COURT NO. I ETC'. Which was allowed by this Court on 2nd of October, 2013.
5. In order to redress the grievance arising out of said judgment, the petitioner approached Hon'ble Supreme Court by filing Criminal Petition No, 1544-L of 2013 which was disposed of as not pressed with the direction to the Chairman, National Accountability Bureau, to re-decide the case on merits.
6. After acceptance of the plea bargain and its endorsement by the learned Accountability Court as the petitioner was released (though remained in jail due to other cases), proceedings in the reference remained continued against other accused and statements of witnesses (PW-12 and PW-15 to PW-72) were recorded who were cross-examined by co-accused..
' When the petitioner after the judgment of this Court was associated in the reference as an accused, application under Section 17(c) of The Ordinance was made by the National Accountability Bureau with the prayer to dispense with the provisions contained in Section 353 of The Code of Criminal Procedure, 1898 for re-recording examination-in-chief undertaking to produce the said witnesses for cross-examination on behalf of petitioner.
' Simultaneously, application was made by Forced Mughees Sheikh, co-accused, seeking an appropriate orders for mode of recording evidence after the association of petitioner in the proceedings of reference.
7. The learned trial court after hearing the parties accepted the application made by the National Accountability Bureau while declining the application made by co-accused with the direction to N.A.B. To provide copies of direct statements of the witnesses (PW-12 and PW-15 to PW-72) enabling the petitioner to go through the said statements for the purpose of cross-examination.
8. Grievance of the petitioner, as canvassed by learned counsel for the petitioner, is that the learned trial court mis-interpreted the provisions of Section 353 of The Code read with Section 17(c) of The Ordinance contending that direct statements of the witnesses referred to were required to be recorded in the presence of petitioner being an accused and exemption of the said witnesses to make fresh examination-in-chief is against the mandate of law referred to.
9. Making reference to the provisions of Section 353 of The Code, it was submitted that evidence is to be recorded in the presence of accused.
' Referring to the provisions of Section 17(a) of The Ordinance, it was argued that provisions of The Code are applicable to the proceedings under the Ordinance and as such, the provisions of Section 353 of The Code which are mandatory in nature cannot be dispensed with.
10. Seeking help from the dictum laid down in "Bhag Singh and others v. Emperor" (AIR 1928 Lahore 69), it was submitted that violation of mandate of Section 353 of The Code will render the proceedings illegal and it is an irregularity which cannot be cured under Section 529 of The Code.
' Placing reliance upon the rule of law enunciated in the Report "Noor Muhammad Khati and others v. The State" (2005 PCr.LJ 1889), it was argued that courts are duty bound to carry out the intention of legislature while deciding the case. Further submitted that things have to he done in the manner provided by law and any departure from it makes the proceedings nullity in the eyes of law. Further submitted that doctrine of "audi alteram partem" requires that examination in-chief of the witnesses, examined in the absence of the petitioner, be also recorded in the presence of petitioner as well as his counsel.
11. On the other hand, learned Additional Deputy Prosecutor General though did not dispute the binding force of the provision of Section 353 of The Code but while making reference to the provisions of Section 17(c) of The Ordinance, submitted that powers have been conferred upon the Accountability Court to dispense with any provision of The Code and follow procedure as it may deem fit in the circumstances of the case. Contended that only embargo put upon the court is to give reasons in writing while making order for dispensing with provisions of The Code.
' Referring to the impugned order, it was submitted that learned trial court has given valid reasons for dispensing with the provisions of Section 353 of The Code.
' Making reliance upon the dictum laid down in "Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others" (PLD 2001 Supreme Court 607), it was submitted that provisions of Section 17(c) of The Ordinance can be invoked and applied by the Accountability Court keeping in view the facts and circumstances of each case.
' Banking upon the dictum laid down in "Muhammad Riaz Fatiana v. The State" (PLD 2006 Lahore 137), it was submitted that keeping in view the preamble and Section 17(c) of The Ordinance, it was well within the domain of learned trial court to make the order assailed which does not call for any interference and that too in constitutional jurisdiction.
12. Anxious consideration has been given by us to the arguments advanced.
13. According to Section 353 of The Code, evidence taken under Chapters XX, XXI, XXII and XXII-A shall be taken in the presence of accused or when his personal attendance is dispensed with in the presence of his pleader. The provision of law was enacted keeping in view the principle of natural justice. The provision undeniably is obligatory and mandatory as argued by learned counsel for the petitioner but the said provision of The Code has to be read with the provision of Section 17 of The Ordinance which is reproduced below for ready reference:--
17. [Provisions] of the Code to apply:--
(a) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions of this Ordinance, the provisions of this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings wider this [Ordinance].
(b) Subject to subsection (a), the provisions of Chapter XXI1A of the Code shall apply to trials under this Ordinance.
(c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.
(d) ------------------
14. Clause (a) of Section 17 of The Ordinance provides that the provisions of The Code shall mutatis mutandis apply to the proceedings under the Ordinance but exception has been provided in the same clause to the effect that the provisions of The Code shall not apply if any such provision is inconsistent with the provisions of The Ordinance.
' Admittedly, the provisions of Section 353 of The Code are not inconsistent with any provision of The Ordinance and as such, shall be applied to the proceedings in the Reference tried by the learned Accountability Court.
' However, the provisions of clause (a) of Section 17 cannot be read in isolation to other clauses of said Section and whole section has to be read in order to determine its effect and binding force.
15. Use of express' ion "notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force" in clause (c) of section 17 clearly suggests the intention of the legislature that the provisions of clauses (a) and (b) are subject to provisions of clause (c) and the later mentioned clause got over riding effect and in certain cases, the Accountability Court got jurisdiction to dispense with any provisions of The Code and can follow such procedure as it may deem fit in the circumstances of the case. However, the powers given to the Accountability Court are controlled by said clause due to use of words "for the reasons to be recorded". If the Accountability Court is of the view that any provision of The Code in the circumstances of the case, even if mandatory, is to be dispensed with, reasons have to be recorded by the said court and if no reason has been given or the reasons given while dispensing with the provisions of The Code are not convincing, the order would be nullity in the eyes of law.
16. We have gone through the rule of law enunciated in the Reports cited at bar by learned counsel for the petitioner.
' In "Bhag Singh and others v. Emperor" (AIR 1928 Lahore 69), the criminal trial was being conducted in the court of 1st Class Magistrate at Kasur under Section 325 of The Indian Penal Code and the evidence of medical officer was not recorded in its totality and the rule of law was expounded keeping in view the fact that accused was facing trial under the ordinary criminal law to which no exception can be taken but the facts of present case are distinguishable as the petitioner is being tried under the NAB Ordinance containing provisions of Section 17(c) of The Ordinance.
' Ratio expounded in Hidayatullah and another v. The State" (2000 YLR 2330) also cannot be questioned explaining the intention of legislature while enacting the provisions of Section 353 of The Code but as referred earlier, in the case under reference, accused were tried under Section 10 of The Offence of Zina (Enforcement of Hudood), Ordinance, 1979, and there was no provision similar to the provisions of Section 17(c) of The Ordinance which could have been applied to the facts of that case.
' In "Noor Muhammad Khatti and others v. The State" (2005 PCr.LJ 1889), provisions of Section 17 of The Ordinance were examined in its totality by the learned Division Bench of Karachi High Court and domain of the Accountability Court to exercise powers under the provisions of law under reference was not disputed but it was held that such exercise shall be done keeping in view the facts and circumstances of the case and it was further opined that dispensation of the provisions of The Code would not mean that arbitrary, capricious or procedure against natural justice shall be adopted.
17. Keeping in view the facts mentioned in the Reports cited at bar by learned counsel for the petitioner, it becomes crystal clear that provisions of Section 353 of The Code are mandatory in nature if the trial is being conducted under the ordinary law of the land but departure has been made in the cases in which reference has been filed under The Ordinance as stipulated in Section 17 of the said Ordinance but simultaneously, keeping in view the clog, the Accountability Court when shall make departure from the procedure contained in the Code, is obliged to record reasons which admittedly should not be fanciful or arbitrary.
18. Provisions of Section 17(c) of The Ordinance was examined by the Hon'ble Supreme Court of Pakistan in "Khan Asfandyar Wall and others v. Federation of Pakistan through Cabinet Division, Islamabad and others" (PLD 2001 Supreme Court 607), and while making reference to Section 12(3) of The Ehtesab Act, 1997, a similar provision, it was held said provision cannot be said to be ultra vires as discussed in "Mohtarma Benazir Bhutto v. The State" PLD 1999 SC 937).
19. In view of the above state of law, there can be no two opinions that power vest in the Accountability Court to dispense with any provision of The Code but has to record reasons while dispensing with the provision and adopting procedure other than contained in the said enactment
20. Now short question before us is whether the learned trial court gave reasons while dispensing with the provisions of Section 353 of The Code while excusing the witnesses to make direct statements again or not.
21. It is an admitted fact that there are more than one accused facing trial in the Reference.
Evidence of the witnesses (PW-12, PW-15 to PW-72) was recorded in the absence of the petitioner due to his conviction in view of acceptance and endorsement of plea bargain. Reference was submitted before the learned Accountability Court in the year 2008. The petitioner and co-accused faced the inquiry as well as investigation prior to year 2008 and as such, it was rightly opined that direct statements of above numbered witnesses, if re-recorded, shall cause hardship to the accused facing the agony of trial since long. Reasons recorded by the learned trial court as such neither can be said to he arbitrary or fanciful and as such the order assailed was made by the learned trial court keeping in view the mandate of Section 17(c) of The Ordinance.
22. Plea of natural justice would also not be sufficient to interfere in the order impugned for two fold reasons.
' First, keeping in view the direction by the learned trial court to provide the copies of direct statements of the witnesses, undeniably, giving sufficient time to cross-examine the said witnesses.
' Second, due to availability of opportunity with the petitioner to raise any objection with reference to direct statements of the witnesses which could have been agitated by the petitioner in accordance with law if the direct statements of the witnesses were recorded in his view.
23. Pursuant to above discussion, no exception can be taken to the order impugned and as such, the writ petition being devoid of force is dismissed.