ABDUL HAMEED BALOCH, J.---This Criminal Ehtesab Appeal is directed against the order dated 07.01.2015 (impugned order) passed by the Judge, Accountability Court-I, Balochistan Quetta (trial court), whereby the appellant along with co-accused persons were convicted under section 31-A of the National Accountability Ordinance 1999 (the Ordinance) and sentenced to suffer imprisonment for three (3) years' R.I.
2. Brief facts leading to file the instant appeal are that the NAB authorities filed a Reference No.09/2014, under section 18(g) read with section 24(b) of the Ordinance against the appellant and other absconding accused persons with the allegation that the accused persons remained the benamidars of main accused namely Ghulam Fareed Patwari.
3. After submission of reference since the appellants and other accused persons were shown absconders therefore after fulfilling the requisite formalities, the notices and non-bailable warrants of arrest of the appellant and others were issued and due to ineffective service the CWs were recorded. On 3rd January 2015 proclamation was published in news paper i.e "Daily Mashriq Quetta". On 07.01.2015 due to non- appearance of the appellant and others absconding accused persons the learned trial court vide impugned order passed the conviction under section 31-A of the Ordinance and sentenced the appellant and other absconding accused persons in the aforesaid terms. Hence this appeal.
4. We have heard the learned counsel for the appellant, the learned Special Prosecutor, NAB and have also gone through the record.
5. Perusal of record reveals that the publication was made in one news-paper of Balochistan and admittedly the appellant is resident of DG Khan Punjab. The record is silent in respect of publication published in the newspaper of Punjab province or on national level. No report is available on record to establish the execution of warrant upon the appellant. The Hon'ble apex Court has declared the conviction in absentia against the Articles 9 and 10 of the Constitution of Islamic Republic of Pakistan (the Constitution). In this regard reliance is also placed on the case of Abdul Majeed v. The Accountability Judge-I, Quetta 2012 PCr.LJ 1647, wherein it has been held as under:- "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 willfully 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 Constitution of Islamic Republic of Pakistan, 1973, therefore, the conviction and sentence awarded by the learned trial Court is not sustainable in the eyes of law."
6. To adhere the principle of natural justice and keeping in view the provision of Article 10-A of Constitution of Islamic Republic of Pakistan 1973, every citizen of Pakistan in the criminal trial against him is entitled to have a fair trial, therefore, Hon'ble Supreme Court in Arbab Khan's case reported in 2010 SCMR 755 has declared the trial in absentia as unconstitutional.
6. (sic.) In view of above observation and following the principles of natural justice, no conviction can be recorded without framing a charge, and no charge brings the guilt at home against the accused without leading the evidence with opportunity of cross-examination to the defence. The impugned order of conviction was passed on 07.01.2015, which is silent about framing the charge under section 31-A of the Ordinance and recording any evidence in respect of wilful absconsion of the appellant.
7. Section 31-A of the Ordinance is a distinct offence, which provides punishment for willful abscondence to an accused who is/was going to be charged for offending any of the provision of the Ordinance. But when neither any charge was framed nor an evidence produced by the prosecution to substantiate the charge of willful abscondence, the conviction recorded by the Court might accumulate into the success of the prosecution, but will certainly amount to offend the principles of natural justice relating to the fair trial of an accused, and, will also accumulate to a complete failure of due process of law for (in) dispensation of justice.
Therefore, in view of the above amended part of section 31-A of the Ordinance and the observation hereinabove followed by the dictum laid down by the apex Court, this appeal is accepted and the conviction and sentence recorded vide order dated 07.01.2015, under section 31-A of the Ordinance, passed in Reference No.09 of 2013 by the Judge. Accountability Court-I, Balochistan Quetta is set aside and case is remanded to the trial court with direction to frame separate charge under section 31-A of the National Accountability Ordinance, 1999, to record prosecution and defence evidence and thereafter to decide the matter strictly in accordance with law.