' IRSHAD HASAN KHAN, J.---The appellant Mohtarma Benazir Bhutto, M.N.A., Leader of the Opposition, has filed this appeal under Order, XVII, Rule 5 read with Order V, rule 3 of the Supreme Court Rules, 1980 (hereinafter referred to as the Rules) against the order dated 13-5-1999 passed by the Deputy Registrar (Judicial) exercising powers of the Registrar of the Supreme Court of Pakistan. By the impugned order, the Deputy Registrar (Judicial) returned the appeal filed by the appellant under section 26 of the Ehtesab Act, 1997 (hereinafter referred to as the Act), read with section 419, Cr.P.C.
Against the Short order/Judgment and sentence dated 14/15-4-1999, passed in Ehtesab Reference No,30 of 1998 (The State v. Mohtarma Benazir Bhutto and others), by the learned Ehtesab Bench of the Lahore High Court, Rawalpindi, Bench, Rawalpindi, comprising Mr. Justice Malik Muhammad Qyyum and Mr. Justice Najam-ul-Hasan Kazmi, whereby the appellant and her spouse Senator Asif Ali Zardari had been convicted and sentenced to undergo five years imprisonment and payment of fine of US $ 8.6 million each (or equivalent amount in Pakistani currency). Additionally their properties and assets had been ordered to be confiscated and the appellant as well as her spouse had been disqualified from holding any public representative office for a period of five years.
2. The appeal filed by Senator Asif Ali Zardari is pending adjudication while that of the appellant has been returned on ground of non-compliance of the First Proviso to Rule 8 of Order XXIII of the Rules, inasmuch as, she has not surrendered in obedience to the abovereferred judgment of the Ehtesab Bench.
3. The appellant has challenged the legality of the impugned order on the ground that the Deputy Registrar (Judicial) has misconstrued the First Proviso to Rule 8 of Order XXIII of the Rules, inasmuch as, the above rule is not applicable to appeal filed as of right under section 26 of the Act. The Deputy Registrar (J) has returned the appeal for non-compliance of the above rule with the observation that the appellant must first surrender before the competent authority in obedience to the order of imprisonment passed against her by the Ehtesab Bench.
4. Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General has strongly resisted the appeal contending therein that rule 8 of Order XXIII of the Rules is applicable to petitions for leave to appe4 as well as the appeals, inasmuch as, once leave is granted in a petition for leave to appeal, it becomes an appeal therefore there is no distinction between petitions for leave to appeal and direct appeal for the purpose of the First Proviso to rule 8 (ibid). He next contended that under rule 6 of Order XXXIII of the Rules nothing "shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The precise submission was that entertainment of the appeal without appellant's surrender in obedience to the impugned judgment of the Ehtesab Bench, would tantamount to abuse of the process of the Court, therefore, the same should be prevented by upholding the impugned order. Mr. Tanvir Bashir Ansari learned Deputy Attorney-General also quoted definition of phrase "fugitive from justice" from Words and Phrases Vol. II, 1996, which is to the following effect:-- "Fugitive from justice.-- -A person who having committed a crime flees from jurisdiction of Court where crime was committed or departs from his usual place of abode and conceals himself within the district. A person who, having committed or been charged with crime in one State, has left its jurisdiction and is found within territory of another State when it is sought to subject him to criminal process of former State."
' The precise submission was that the appellant having committed a crime is presently residing within territory of another State i.e, England where extradition treaty is not in force, this is, therefore, not a fit case for allowing the appeal.
5. The controversy raised herein turns on the interpretation of First Proviso to Rule 8 of Order XXIII of the Rules, which reads thus:- "(8) Pending the disposal of a petition under this Order, the Court may direct that execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may deem fit:-- ' Provided that unless surrendcr is first made to an order for imprisonment, as above, the petition shall not be entertained:-- ' Provided further, petitions involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court."
' The above provision is in pari materia with Rule 5-B, of Order XXIV of the Supreme Court Rules, 1956 (hereinafter referred to as the Rules, 1956), except the second proviso to Rule 8 of the Rules, which did not exist there. Rule 5-B of the Rules, 1956, reads thus:- "Pending the disposal of a petition under this Order, the Court may direct that execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may thinks fit:-- ' Provided that unless surrender is first made to an order for imprisonment as above, the petition shall not be posted for hearing, nor shall operation of such order be suspended."
6. From a bare reading of Rules 8 (ibid) it is apparent that this rule is applicable to petition filed wherein leave to appeal is sought against any order of imprisonment or fine. The First Proviso to Rule 8 envisages that aid for securing interference by this Court with a judicial order for imprisonment or fine against which leave to appeal is sought, is entertained only when the surrender is first made to order for imprisonment. The above rule is in conformity with the fundamental rule of the administration of justice that persons seeking aid of justice in a criminal case should submit to the due process of justice. Clearly, the Court would not act in aid of person who is a fugitive from justice and the petition filed by such a person against his imprisonment seeking leave to appeal is not entertainable unless and until the condition precedent laid down in the above rule is fulfilled i.e, surrender first, entertainment of petition later. In Chan Shah v. The Crown PLD 1956 FC 43), it was observed:-- "We cannot conceive of a more flagrant violation of this condition than case---like the present--- where the individual seeks the interference of the Sovereign to obtain revision of a judicial order, when he is himself engaged in setting that judicial order at naught."
' The concluding passage in the case of Chan Shah (supra) reads thus:-- "It follows, from what has been said above, that Attorneys and Advocate who appear to present petitions, on the criminal side---other than those which lie as of right---are under duty to see that they are acting in furtherance of justice. It seem to us that this duty is clearly violated when aid, for securing interference by this Court with a judicial order, is given by these officers of the Court to persons who, to their knowledge, are in contempt, i.e,, as fugitives from justice, without at the same time ensuring that such persons conform to the judicial orders applicable to them. In the present case, the minimum requirement, in relation to this Court, was that the Attorney should have taken steps to secure the appearance of the petitioner before this Court on the first day that the petition came up for hearing. He may, at the same time, have moved, through counsel, for an order suspending execution of the High Court sentence. The course adopted by the Attorney in the present case was, in our opinion, not in accordance with his proper duty." (underlining is mine by way of emphasis).
' The decision in the case of Chan Shah supra was rendered when the Rules, 1956 were in force. Rule 5-B of Order XXIV thereof is the corresponding provision of the First Proviso to Rule 8 of Order XXIII of the Rules.
7. The case of the appellant, however, stands on a different footing, inasmuch as, she was out of the country with leave of the Court. She was not required to furnish any bail bond. There was no restraint on her from the Ehtesab Bench to travel abroad during the pendency of the trial. She was convicted and sentenced in absentia. Subsequent to her conviction and sentence rendered in Ehtesab Reference No,30 of 1998, her personal attendance had been dispensed with the Ehtesab Reference No,28 of 1997, pending before the Ehtesab Bench of High Court Sindh at Karachi, by a Bench of this Court, comprising three Hon'ble Judges vide order, dated 17-5-1999, passed in Criminal Miscellaneous No,140 of 1999 in/and Criminal Petition No,100 of 1999 entitled: "Mohtarma Benazir Bhutto, M.N.A. v. The State through Chief Ehtesab Commissioner, Islamabad authored by (Irshad Hasan Khan, J.), wherein it was inter, alia, observed:-- "(6) Ch. Muhammad Farooq, learned Attorney-General submitted that ordinarily the petitioner may be entitled to exemption from attending the Court but during the pendency of the Ehtesab Reference No,28 of 1997, pending before the High Court of Sindh, at Karachi, she has been convicted in Ehtesab Reference No,30 of 1998 and has not come back to Pakistan, therefore, this circumstance disentitles her to claim exemption.
"(7) Be that as it may, it is an admitted fact that the petitioner has been travelling abroad with the permission of the Court. Her passport has been returned by the learned Ehtesab Bench and the petitioner has been attending the Court as per directions of the Court, after making adjustments in the dates of hearing in case pending against her in Sindh and Punjab. It is not the cases of the learned Attorney-General that before announcement of the final verdict in Ehtesab Reference No,30 of 1998, she was required by the Court to be present at the time of the announcement of the judgment and she failed to do so. Thus, visulaized, prima facie, this circumstance simpliciter does not disentitles her for consideration of her application on merits.
"When faced with this, the learned Attorney-General frankly submitted that her personal attendance may be dispensed with before learned Ehtesab Bench in view of the undertaking given in her application dated 25-3-1998, vide paragraph 8 thereof, which states that she will be attending the Court whenever required to do so by the learned Ehtesab Bench but in her absence her Panel of Advocates will be attending the Court as already undertaken by them and authorised by her in writing."
' The rule laid down in Chan Shah (supra) does not apply, in so far as it relates to the duty of an Advocate-on-Record and Advocate, who appear to present, on the criminal side, appeals as of right on behalf of the" appellant, to secure their appearance before the Court at the time of entertainment of the appeal by the office.
8. Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General was right in contending that under rule 6 of Order XXXIII of the Rules, this Court is competent in doing , complete justice. Article 187(1) of the Constitution empowers this Court to issue directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing attendance of any person or discovery or production of any document. If the appellant could be tried and a valid judgment could be passed in her absence, there could be no bar in entertaining her appeal in her absence, particularly, When this Court is empowered to direct her production at any stage of hearing of the appeal, if it thinks fit so do, in the interest of justice and on failure of the appellant to appear before the Court, if and when required, she will face the legal consequences flowing therefrom. It is not the case of the State that the appellant fled from the jurisdiction of the Court after her conviction and is residing within territory of another State i.e, England. On the other hand, as stated above, her personal attendance had been dispensed with in Ehtesab Reference No,28 of 1997, after her conviction when she was residing within territory of another State. Thus visualized, entertainment of her appeal in her absence will not tantamount to abuse of process of law, in the peculiar facts and circumstances of the case.
9. The appellant has a right to demand that her appeal be entertained. She cannot be deprived of her right of appeal, in view of the peculiar facts and circumstances of the case. Even otherwise, the appeal filed by Senator Asif Ali Zardari, has been entertained against the same judgment and this Court has to examine the legality of the conviction and sentence passed by the Ehtesab Bench in the impugned judgment.
10. Mr. Aitzaz Ahsan, learned Senor Advocate Supreme Court for the appellant was right to rely on Muhammad Ashfaque alias Chief v. The State 1998 PCr.LJ 1486), to contend that in similar circumstances a Division Bench of the Sindh High Court allowed the appeal, in absentia, of Mr. Altaf Hussain, Chief of the MQM (who had been convicted of such heinous offences as under sections 392, 394 and 395, P.P.C., i.e, robbery and dacoity with force and firearms). While entertaining, hearing and accepting the appeal in the absence of the convicted appellant the learned Division Bench had observed:-- "The appeal is a fundamental right and is a continuation of proceedings. When a person can be tried in absentia, there is no reason as to why his appeal could not be heard as such."
' I see no reason why a similar treatment be not meted out the appellant herein.
11. Be that as it may, the rule 8 (ibid) is not applicable to direct appeals filed before this Court under section 26 of the Act. There is no general provision in the Rules whereby First Proviso to Rule 8 of Order XXIII has been made applicable to appeals filed as of right and/order under section 26 of the Act. The heading of Order XXIII relates to "Petitions for Leave to appeal and appeals arising therefrom, in criminal proceedings". It contains 12 rules in all, which reads under:-- "(1) Save as hereinafter provided, the provisions with respect to petitions for leave to appeal in civil proceedings contained in Order XII of this Part shall mutatis mutandis apply to court-fee, process fee or search fee shall be charged but the copying fee shall be charged except in petitions through jail.
(2) A petition for leave to appeal in criminal matter shall be lodged within thirty days from the date of judgment or final order sought to be appealed from, or as the case may be, from the date of the order refusing certificate under sub-clause (f) of clause (%) of Article 185 of the Constitution: ' Provided that the period of limitation for a petition for leave to appeal by the Attorney-General or the Advocate-General of a Province against the judgment or order of acquittal shall be sixty days from the date of such judgment or order: ' Provided further that the Court may, for sufficient cause shown, extend the time.
(3) The petitioner, if he is in Jail, may present his petition for leave to appeal in respect of his own conviction alongwith the accompanying doctiments, including any written arguments which he may desire to advance, to the Officer-in-Charge of the Jail who shall forthwith forward them to the Registrar.
(4) Except in cases involving the sentence of death, the Registrar shall place the petition and the accompanying documents so received before the Court, and the Court may, upon perusal of the papers, reject the petition summarily without hearing the petitioner in person, if it considers that there is no sufficient ground for granting leave to appeal.
(5) In the case of a petition for leave to appeal involving a sentence of death, the Registrar shall, as soon as the petition is filed or received from the Officer-in-Charge of a Jail, intimate the fact of the petition having been filed/received in the Court to the Government of the Province concerned and thereupon the execution of the sentence of death shall be stayed pending the disposal of the petition without any express ,order of the Court in this behalf: ' Provided that unless otherwise ordered by the Court this rule shall not apply to the petitions filed on behalf of a condemned prisoner, who has exhausted all his legal remedies by way of petition for leave to appeal, appeal or review in this Court and whose mercy petition has been rejected by the concerned authorities.
(6) As soon as necessary documents are available, the Registrar shall, in the petitioner has been sentenced to death, assign an Advocate from a panel of amicus curiae Advocates, and place the petition before the Court for hearing. The fee of the Advocate so assigned shall be Rs,100 or such amount as may be fixed by the Court hearing the petition.
(7) In the case of the petition for leave to appeal in respect of a proceeding under the Foreign Exchange Regulation Act, 1947, the Registrar shall cause notice of the petition also to be given to the Governor of the State Bank of Pakistan, where the said Bank is not impleaded as a party.
(8) Pending the disposal of a petition under his Order, the Court may direct that execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may deem fit: ' Provided that unless surrender is first made to an order for imprisonment, as above, the petition shall not be entertained: ' Provided further, petitions involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court.
(9) In case the Court grants leave to appeal in a petition against acquittal, the Court may direct that the respondent shall be arrested forthwith and detained in judicial custody pending final disposal of the appeal. During such detention the respondent shall be treated as an under trial prisoner.
(10) After the grant of petition or application for leave to appeal by the Court the Registrar shall transmit a certified copy of the order to the Court appealed from. The Court appealed from shall then arrange for the transmission of the original record of the appeal including the records of the Courts below with all convenient speed. In cases where paper books of the appeal were printed/typed for use in the High Court, 12 copies thereof, or such lesser number as the Registrar may specify, shall also be transmitted, alongwith the original record.
(11) The paper books for 'use in the Supreme Court shall be prepared at the expense of the appellant unless otherwise ordered by the Court, but in cases involving sentence of death or imprisonment for life, these shall be prepared at the expense of the Government of the Province concerned.
(12) The provisions contained in Order XXII shall so far as practicable, apply to criminal appeals arising under this Order except that the record shall be prepared at the expense of the appellant."
A reading of the abOve rules shows that the provisions of Order XXIII (ibid) apply, with particularly, to petition for leave to appeal and the appeals arising therefrom in Criminal proceedings and not to direct appeals. Rules 12 alone extend the applicability of Order XXIII to Criminal Appeals arising under Order XXII. In other words, when petitions for leave to appeal are granted and they are converted into appeals, the provisions of Order XXII are attracted, so far as practicable. Rule 13 of Order XXII of the Rules provides:-- "Save as aforesaid, the provisions contained in the preceding Orders in this part shall, mutatis mutandis apply, so far as may be, to criminal appeals under this Order, except that concise statement will not be filed in Criminal Appeals unless ordered by the Court."
12. It would, thus, be seen that the Rules making authority whenever intended that the rules contained elsewhere in the Rules would also apply to the proceedings under other Orders it was so specifically provided in the Rules as in Rules 1 and 12 of Order XXIII and Rule 13 of Order XXII. Thus, visualized, in the absence of any specific provisions, contained in the Rules extending the applicability of First Proviso to Rule 8 of Order XXIII, to direct appeal, contemplated by section 26 of the Act, the appeal filed by the appellant could not be returned by the Deputy Registrar (Judicial) on ground of non-compliance of the First Proviso to Rule 8 of Order XXIII of the Rules. Similar view was taken by my learned brother Saiduzzaman Siddiqui, J. In Criminal Miscellaneous Appeal No,1 of 1994, in Criminal Appeal No,267 of 1992, decided on 19-10-1994 (Reference NLR 1995 SCJ 224), wherein it was observed that the provisions contained in Order XXIII were not made applicable to review petitions filed under Order XXVI of the Rules. Provisions of Rule 8 of Order XXIII cannot be extended to the petitions for review filed under Order XXVI of the Rules. It was further held that review petition under Order XXVI, without surrender to order of imprisonment against review petition, would be competent. Consequently, the order of the Assistant Registrar, returning such review petition being incompetent was set aside with the direction that the review should be processed in accordance with law. I respectfully subscribe to the above view and reiterate the following observations:-- ' From reading of the above rule 8, it is quite clear that this rule is applicable to the petitions filed under Order XXIII of the Rules which specifically relates to the petitions for leave to appeal and appeals arising therefrom in criminal proceedings. The provisions for review of the judgment of this Court are governed under Order XXVI, Part IV, of the Rules. The provisions contained in Order XXIII are not made applicable to review petitions filed under Order XXVI of the Rules. I have also not been able to find any general rule in the Rules extending the application of the provisions of Order XXIII
(ibid) to the proceedings under Order XXVI of the Rules. I am, therefore, of the view that the provisions contained in rule 8 of Order XXIII cannot be extended to the petitions for review filed under Order XXVI of the Rules. It is significant that the Rules making authority wherever intended that the rules contained elsewhere in the Rules would also apply to the proceedings under other Orders, it was so specifically provided in the Rules. For instance, rule 1 of Order XXIII of the Rules provides that the provision with respect to petitions for leave to appeal in civil proceedings contained in Order XIII shall mutatis mutandis apply to the petitions for leave to appeal in criminal matters except that no court-fee, process fee or search fee shall be charged but the copying fee shall be charged except in petitions through jail. Similarly, rule 13 of order XXII of the Rules also provides that the provisions contained in the preceding Orders in Part II shall mutatis mutandis apply, so far as may be, to criminal appeals under Order XXII except the concise statement will not be filed in criminal appeal's unless ordered by the Court. I am, therefore, of the view that Order XXVI of the Rules, which is contained in Part IV of the Rules governs the filing of review petitions and as there is no provision under Order XXVI making rule 8 of Order XXIII applicable to the petitions filed under Order XXVI, the review petition filed by the petitioner could not be returned on the ground of non-compliance of rule 8 of Order XXIII of the Rules."
13. I would also emphasis that either application of Rule 8 (ibid) be extended to the proceedings to direct appeals filed under section 26 of the Act or suitable amendments be made in the relevant law/rules.
14. In view of the above discussion, I am inclined to hold that Order XXIII applies to "Petitions for Leave to Appeal and Appeals arising therefrom in Criminal Proceedings"., the appeal in point is neither a Petition for leave to appeal nor is it an appeal that has arisen out of any such Petition; the appellant has filed an appeal as of right under section 26 of the Act, which provides that, "any person sentenced by the Court under this Act may, within 30 days of the decision or the order, prefer an appeal to the Supreme Court" and this is additional jurisdiction conferred on this Court by the Act, within the meaning of Article 175(2) of the Constitution, which cannot be equated with a Petition for Leave to Appeal for the purpose of rule 8 (ibid). There is another circumstance for allowing this appeal, in that , the judgment and sentence sought to be challenged were announced by the Ehtesab Bench in the absence of the appellant (for which absence she had the leave of the Court) and for that reason she was also allowed exemption from attendance in Ehtesab Reference No, 28 of 1997, pending before the Ehtesab Bench in the High Court of Sindh at Karachi, as discussed above.
15. It is well-settled that an appeal as of right is a continuation of the trial. Admittedly, the impugned judgment and sentence were announced in the absence of the appellant, therefore, the appeal filed by her against the judgment/sentence can also be entertained in her absence.
Needless to say that the right of appeal was recognized by the Holy Prophet (peace be upon him) as well as by the Khulafa-e-Rashideen. This view was also expressed in great detail by the Federal Shariat Court and upheld by the Shariat Appellate Bench of this Court in Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6).
16. Resultantly, I allow the appeal, set aside the impugned order of the Deputy Registrar (Judicial) and direct that the appeal filed by the appellant against her conviction and sentence in Ehtesab Reference No,30 of 1998 be processed in accordance with law.