SADIQ MAHMUD' KHURRAM, J.---The appellant namely Tariq Mehmood son of Ghulam Muhammad has assailed the judgment dated 07.02.2005 whereby the learned Judge, Accountability Cour t No-I, Rawalpindi/Islamabad in Accountability Reference No.110 of 2004, due to non-appearance of the appellant and in pursuance of appellant being declared as an absconder , convicted the appellant under section 31-A of The National Accountability Ordinance, 1999 (Ordinance XVIII of 1999) (hereinafter referred to as the "Ordinance ") and sentenced the appellant namely Tariq Mehmood son of Ghulam Muhammad to rigorous imprisonment for three years.
2. The learned counsel for the appellant has stated that the appellant was tried in absentia without giving him any opportunity to defend himself properly which violates the Article 9 and Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution ") and that the trial in absentia has been declared illegal by the august Supreme Court of Pakistan . The learned counsel for the appellant further argued that the appellant was convicted on the statement of process server which was recorded during the proceedings under section 87 of the Code of Crimina l Procedure, 1898 and said statement cannot be termed as evidence, according to law for convicting the appellant; that no regular procedure has been adopted for trial and convicting the appellant therefore, the convictions and sentence may be set aside.
3. On the other hand learned Special Prosecutor for NAB has submitted that under section 17(c) of the Ordinance the learned trial court was competent to dispense with the provisions of the Code of Criminal Procedure, 1898 for the trial of any offence and can adopt any procedure as deemed fit, therefore, the trial court found it proper to prosecute the appellant for offence punish able under section 31-A of the Ordinance in the manner as adopted by it in the proceedings and then convicted the appellant, therefore, the procedure adopted by the trial Court is protected under the above-referred provision of law. The learned Special Prosecutor for NAB also argued that the appeal is hopelessly time barred.
4. We have given due consideration to the arguments, gone through the material available on the record and find that the accused was convicted in absentia. The Legislature while enacting the Ordinance, has provided no procedure for the trial and conviction of accused who absconds as he avoids service of warrants. As regards the procedure, a perusal of various laws reveals that the laws can be categorized mainly in two categories (1)
Substantive law (2) Procedural law. Under a substantive law, acts and omissions hen been made offences and made punishable, such as Pakistan Penal Code. Whereas the procedural law provides for the manner for the punishment of offences, such as the Code of Criminal Procedure, 1898. It is well-settled that a penal statute must be construed strictly; that is, nothing is to be regarded as within the meaning of the statute, which is not within the letters, which is not clearly and intelligently described in the very word of the statute itself. Where an act involves the freedom of the citizen, the Court is always unwilling to give a construction taking away such freedom. The Cr.P.C. is a Code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code of Criminal Procedure, 1898 is to ensure that an accused person gets a full and fair trial. The. Code of Criminal Procedure, 1898 lays down the procedure to be followed in every investigation, inquiry into or trial for, every offence whether under the Penal Code or under any other law except in the cases where other laws provide any special procedure. A perusal of the Ordinance shows that there are certain provisions that contain substantive law, some provisions contain procedural law and some provisions contain substan tive and procedural law. It is not out of place to mention here that when there is no provision to the contrary in the special or penal statute, the procedure under the Cr.P.C. will apply for the trial of an offence under the said statute . The provisions of Code of Criminal Procedure, which is self-contained Code for the holding of criminal trials, have been made applicable to the proceedings under the Ordinance as provided by section 17(a) of the Ordinance. However , where a special Act prescribes a special procedure for the prosecution of the offence, prosecution not in accordance with that special procedure is barred. Nevertheless section 17(c) of the Ordinance authorizes the Accountability Court to dispense with the procedure mentioned in the Cr.P.C. including its procedure of Chapter XXII-A. It further authorizes the Court to adopt any procedure as deems fit in the circumstances of the case on the condition that for dispensing with the said procedure the Accountability Court is required to record reasons for doing so. The section 17(c) of the Ordinance reads as under:- "(c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Accountability 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."
Dispensation with the provisions of Code of Criminal Procedure, 1898 and following any procedure does, not mean that arbitrary , variable or the procedure against the natural justice should be adopted. The Honourable Federal Court in the case of Abdul Sattar Molla v. Crown (PLD 1953 FC 145), has held that the procedural requirements of Criminal Law are not mere formalities. Underlying the rules of procedure is the care to ensure the liberty of the subject and due dispensation of justice. The basic principle for trial of any offence is that the procedure of the trial should be in consonance with the natural justice, which is part and parcel of every statute if it is not excluded, expressly . The principle audi alteram partem (no person should be condemned unhe ard) is presumed to be included in every statute in the absence of any provision to contrary or if the action is going to affect any vested right of a person. The opportunity of hearing cannot be taken away arbitrary without following the principles of natural justice. The natural justice requir es that the accused person should be tried by a competent Court. He should be told and made to understand the nature of offence for which he is being tried. The case against him should be fully and fairly explained to him. He should be afforded a full and fair opportunity of defending himself. If substantial compliance with the outward forms of the law is made then, mere mistakes in procedure, mere inconsequential errors and omissions in the trial would be regarded as the venial by the Procedural Code and the trial would not be vitiated unless the accused could show substantial prejudice. In the present case, the learned trial court adopted a completely different procedure for the trial of offence under section 31-A of the Ordinance from the procedure provided under Chapter XXII-A or Chapter XXII (summary trial) of the Code of Criminal Procedure, 1898. Thus, the learned trial court deviated from the well-recognized procedure of the trial of the offences as mandated by section 17(b) of the Ordinance. As such by virtue of the section 17(c) of the Ordinance the Courts were required to record reasons for dispensing with the procedure as provided in the Cr.P.C. or section 17(b) of the Ordinance. A perusal of the record reveals that the learned trial court did not pass any order dispensing with the procedure provided under the Cr.P.C. or the procedure provided under section 17(b) of the Ordinance for the trial of offence nor recorded any reason to dispense with the said procedure which is the most essential and precondition for dispensing with the procedure mentioned in the Cr.P.C. In the absence of any order or reason for dispensing with the provisions of Cr.P.C. the learned trial court was duty bound to adopt the procedure as provided under section 17(b) of the Ordinance hence committing an illegality . The said illegality cannot be cured under section 537, Cr.P.C. because it has materially caused prejudice to the appellant and occasioned a failure of justice. Thus, on this account, the procedure adopted by the learned trial court for the trial of the offence punishable under section 31-A of the Ordinance, being in violation of the procedure mentioned in the Cr.P.C. and section 17(b) of the Ordinance, is liable to be set aside. The procedure adopted by the learned trial court also violates the provisions of Article 9 and Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 reads as under:-
9. Security of person - No person shall be deprived of life or liberty save in accordance with law .
Article 10-A of the Constitution of the Islamic Republic of Pakistan reads as under:- Right to fair trial 10-A. For the determinat ion of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.
In view of the above mentioned Articles of the Constitution of Islamic Republic of Pakistan, 1973 any trial in absentia is violative of the said Articles.
5. As regards the reliance on the statement of process-server , a perusal of Crimi nal Procedure Code reveals the Chapter-VI, of Part-III, Cr.P.C. deals with the process to compel the appearance of any person. This chapter is divided into five sub-chapters i.e. A to E, having sections from 68 to 93-C, sub-chapter "A" deals with summons; sub-chapter "B" deals with warrant of arrest; sub-chapter "C" deals with proclamation and attachment; sub-chapter "D" deals with other rules regarding process; and sub-chapter "E" deals with special rules regarding the process issued for service or execution outside Pakistan and process received from outside Pakistan for service or execution within Pakistan. Thus, all the provisions contained in sub-chapters "A" to should be interpreted having reference exclusively to the matters of process to compel the appearance of any person which is the heading of chapter-VI, Cr.P.C. Sub-chapter "C" deals with proclamation and attachment, having only three sections from sections 87 to 89. Section 87 deals with issuance of proclamation for an abscond ing person. The main condition, for issuing proclamation under the said section, is the satisfaction of 'the Court after recording the evidence that any person against whom a warrant was issued, has absconded or concealed himself so that such warrant could not be executed. After such satisfaction the Court publishes a written proclamation requiring the said person to appear at a specified date, place and time not less than 30 days from the date of the publishing of such proclamation. As such for issuing proclam ation the Court is required to issue a warrant of arrest for the accused.
Thus, for procuring the attendance of an accused person warrant of arrest is required to be issued. In the present case the learned trial court issued warrants for the arrest of the appellant to procure his attendance so that the trial concerning main offence in the reference may commence against him. As the warrants were not being served, therefore, the statement of the process-server was recorded to issue proclamation as required under section 87, Cr.P.C. and thereafter the attachment of property of the accused person. Thus, the proceedings, were initiated to compel the appellant to appear before the Court. In order to achieve that object, the warrants were issued to procure their attendance. The statement of the process-server was recorded to issue proclamation under section 87, Cr.P.C. enabling the learned trial court to attach the property of the accused so as to compel the accused to appear before the Court. These proceedings were initiated for the above-referred purpose and not for convicting the accused person. Therefore, both the proceedings should not be mixed up together . The learned trial court while convicting the appellant has relied upon the statement of process-server , which was recorded for issuance or proclamation under section 87, Cr.P.C. As already observed that these proceedi ngs were initiated in respect of procuring the attendance of the accused person. These proceedings were not in respect of trial of offence under section 31-A or the Ordinance. For proving the offence under section 31-A, the prosecution is required to prove essential ingredients of the said section. Section 31-A of the Ordinance reads as under:-- "Absconding to avoid service of warrants.--- Whoever absconds in order to avoid being served with any process issued by any Court of any other author ity or officer under this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance shall be guilty of an offence punishable with imprisonment which may extend to three years notwithstanding the provisions of sections 87 and 88 of Code of Criminal Procedure, 1898 or any other law for the time being in force."
Section 31-A makes absconding, seeking to avoid service of a process, an offence. The object of the section is to punish the offender for his disobedience in seeking to avoid the service or process issued under the Ordinance by the (1) Court, (2) any other authority (3) or officer. The main ingredients are that the process has actually been issued and the accused knew or had reason to believe that this was the case. Thus, the essence of the offence is the intentional evasion of service of process and there must, therefore, be knowledge or the issuance of the process and absconding, seeking to avoid receipt of the process. A bare reading of the section reveals that the prosecution is required to prove firstly that the accused is absconder , secondly that the Court or any authority or officer has issued process under the Ordinance, thirdly , that the accused has absconded with intention to avoid being served with such process, fourthly , the manner in which he evaded or avoided the service on himself or concealed himself with intention to scree n himself from the proceedings or punishment under the Ordinance. The above mentioned ingredients are issues of facts that can only be proved by leading evidence in accordance with the provisions of Qanun-e-Shahadat Order under which evidence means examination-in-chief, cross-examination, and re-examination if any. Under section 353, Cr.P.C. evidence is to be recorded in presence of accused otherwise it cannot be regarded as evidence to be relied upon or used against the accused except in the proceedings under section 512, Cr.P.C. which is an exception to the general rule or section 353, Cr.P.C. Thus, the statement of process-server recorded by the learned trial court to procure the attendance of the appellant for the purpose of his trial in the main reference cannot be equated with the evidence without fulfilling the conditions of Qanun-e- Shahadat Order and section 353, Cr .P.C. Therefore, the same cannot be used for convicting the accused.
6. As regards the time barred appeal, was have noted that the instant appeal is time-barred because under section 32 of the Ordinance an appeal is to be filed within 10 days of the final judgment but the instant appeal has been filed beyond that period. The appellant has filed an application under section 5 of Limitation Act to condone the delay . The learned counsel for the appellant has admitted that the appeal is time-barred but argued that as the judgment is void, therefore, no time limit will run against the appellant for filing 'the appeal, as such, the delay may be condoned. In the light of our discussion on various aspects of the case we agree , with the submissions made by the learned counsel for the appellant, that as the judgment passed by the learned trial court is void ab initio, hence the bar of limitation can be ignored. Simil ar point was considered by the august Supreme Court of Pakistan in the case of Muhammad Shafi v. Mushtaq Ahmed (1996 SCMR 856) and it was observed that if the order or judgment is void then the bar of limitation can be ignored. At page 860 it has been observed as under:-- "Learned Judge in High Court appears to have overlooked the difference betw een void orders and erroneous orders. Bar of limitation may be ignored in respect of void orders but not in respect of erroneous orders. The question of limitation may not arise in respect of judgments which are nullity in law, void or ultra vires. As a matter of fact if an order is without jurisdiction and void, it need not be formally set aside as held in cases of Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37 and Ch. Altaf Hussain and others v. The Chief Settlement Commissioner PLD 1965 SC 68 and Sayed Ali Abbas and others v . Vishan Singh and others PLD 1967 SC 294 ."
7. For what has been discussed above, we are persuaded to hold that the conviction and sentence recorded by the learned Judge Accountability Court No.1 Rawalpindi/Islamabad, vide judgment dated 07.02.2005, in the circumstances, are not sustainable. We, thus while allowing the instant Criminal Appeal No.225 of 2018 lodged by the appellant namely Tariq Mehmood son of Ghulam Muhammad set-aside the judgment dated 07.02.2005 passed by the learned Judge, Accountability Court No-I, Rawalpindi/Islamabad and acquit the appellant from the charge under section 31-A of The National Accountability Ordinance, 1999 (Ordinance XVIII of 1999) levelled against him.
The appellant namely Tariq Mehmood son of Ghulam Muhammad is ordered to be acquitted.