' MIAN NAZIR AKHTAR, J.--- This judgment will dispose of the present appeal as well as Criminal Appeal No,194 of 2001 and Writ Petitions Nos.1475 of 2001, 18844 of 2001 and 18845 of 2001 in which common questions of law are involved.
2. The appellant was convicted for an offence under section 9(iv) (v) of the NAB Ordinance and sentenced to undergo R.I. For 10 years with a fine of Rs,30 millions. The properties owned by him as well as his brother-in-law Safeer Ahmed and wife Mst. Shaheen Akhtar were ordered to be forfeited in favour of Government of the Punjab. The appellant's brother-in-law and wife were held to be his dependents and "Benamidars".
3. We have heard the learned counsel for the appellant and the learned law officers for the NAB .At length and perused the material on the record. The legal controversy involved in the case is whether the trial Court had rightly convicted the appellant and forfeited the properties without affording an opportunity of being heard to the "Benamidars". Admittedly, the "Benamidars" were not afforded an opportunity of being heard but the properties standing in their names, had been forfeited on the presumption that these were purchased by the funds provided by the appellant.
The legal issue is clinched by two recent judgments of the Hon'ble Supreme Court of Pakistan. The first one is reported as Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408. The second is an unreported judgment titled. The State v. Mehmood Hussain (Criminal Petition No,221 of 2001, decided on 21-10-2001). In the former precedent, the appeals filed by the convicts were dismissed with the following observations made in para. 16:-- "16. The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB Ordinance, we would hold that he (Benamidar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as Benamidars, the Court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decided the case."
' In the latter case, the judgment of the Peshawar High Court passed in Ehtesab Appeal No,9 of 2000 was challenged before the Hon'ble Supreme Court of Pakistan. The sentence and conviction recorded by the Accountability Court was set aside and the case was remanded to the trial Court for recalling the P.Ws. Who had deposed to Benami title of the ostensible owners giving a right to the alleged :Benamidars" to cross-examine the P.Ws. And produce their evidence to substantiate their claim of ownership. This judgment was upheld by he Hon'ble Supreme Court of Pakistan in Criminal Petition No,221 of 2001. The operative part of the judgment is reproduced below for ready reference: "With the assistance of the learned counsel for the petitioner, we have gone through the judgment impugned as well as the fact of the case and after careful consideration thereof, we do not find any flaw to the extent of the respondent. However, as regards his father, mother and sister, we are of the view that in course of trial, they ought to have been heard and afforded an opportunity to show that the property forfeited by the trial Court vests in them because their case stands on different footing. In this view of the matter, we would remand the case to the Accountability Court No,IV at Peshawar with direction that in post remand proceedings, the father, mother and sister 'Benamidars' shall be called upon to show cause as to why their property be not confiscated. In those proceedings they would be at liberty to adduce any evidence which they wish to produce to establish their own ownership subject to the discretion of the trial Court and law. 'Benamidars' can recall any P.W. For cross-examination confined only to the ownership or history of the property. Trial Court shall conclude the proceedings within three months. The petition stands disposed of with the above observation."
4. The appellant's learned counsel submits that the appellant's conviction be set aside and the case be remanded to the trial Court in view of the law laid down in the case of Mehmood Hussain in Criminal Petition No,221 of 2001. Earlier on behalf of the State arguments were addressed by the learned Deputy Prosecutor General NAB, who had urged that there were two categories of cases, one in which "Benamidars" were produced as D.Ws. And had an opportunity to establish their title, though they were not given the right to cross-examine the P. Ws. And second in which the "Benamidars" were not heard at all. According to him, in the first category of cases, the "Benamidars" were sufficiently heard and given an opportunity to prove their ownership, therefore, there was no need to send the case back to the trial Court but in the second category in which the "Benamidars" were not heard at all, the case may be remitted to the trial Court in the light of the law laid down by the Hon'ble Supreme Court of Pakistan in the above-referred two precedents.
He'also urged that the procedure for forfeiture of properties was not given either in the Cr.P.C. Or the NAB Ordinance, therefore, the process of forfeiture had to be carried out under the Land Revenue Act whereunder it was possible to hear the "Benamidars". We also heard the learned Prosecutor General NAB on 29-5-2002, who urged that the "Benamidars" were entitled to be heard as "aggrieved parties". For this purpose notice had to be issued to them to give them an opportunity of being heard. He also urged that where the "Benamidars" had appeared as D.Ws.
They had sufficient opportunity to prove their ownership. He urged that where properties were purchased by the main accused in the name of his wife or any other near relative or dependent, the ostensible owners might not have been aware of the fact that the accused had purchased property with ill-gotten money. They may not have any criminal intention so as to be arrayed as accused. However, the law should be developed so as to create a new category of parties before a criminal Court known as an "aggrieved party", apart from the State and the accused.
5. In view of the judgments of the Hon'ble Supreme Court of Pakistan referred to above, it is now settled that "Benamidars" are entitled to have a show-cause notice regarding the proposed forfeiture of their properties and are entitled to be heard before an Accountability Court. They have a right to cross-examine the P.W. As and to produce their own evidence to establish their ownership. In a case in which evidence is brought on the record during the course of investigation to show that the "Benamidars" had intentionally allowed the main accused to purchase properties in their names with his ill-gotten money in order to protect him from penal liability by providing a cover to his criminal act, then the "Benamidars" can become accomplices and be arrayed as accused in the reference. In that eventuality, they have all the rights and privileges of an accused under the law and have to be examined under section 342 of the Cr.P.C. At the proper stage apart from having the option to appear in their own defence and make a statement under section 340(2) of the Cr.P.C. However, where there is no such evidence, still the "Benamidars" must be given a show-cause notice and a reasonable opportunity of being heard as being aggrieved persons. In this capacity, they have a right to cross-examine the P.Ws. And produce their own evidence to establish their title. They can appear in their own defence but the Court will not record their statements under section 342 of the Cr.P.C. Ordinarily, the "Benamidars", who are not otherwise implicated in the case as accomplices, must be given notice to join the proceedings from the very inception so that examination-in-chief of the P.Ws., who are produced to depose regarding Benami nature of title of the properties, is recorded in their presence. This is essential so that the "Benamidars" have sufficient time to engage their counsel and their learned counsel has sufficient opportunity to prepare his defence cross-examination. In the present case, the examination-in- chief of a few witnesses, who had deposed about the Benami nature of the transactions, had already been recorded. The interests of justice would be adequately met if the "Benamidars" are allowed to recall the said P.Ws. For purposes of cross-examination. The same course was approved by the Honourable Supreme Court of Pakistan in the case of Mehmood Hussain referred to above.
Thereafter, they can produce their own oral as well as documentary evidence to prove their independent title.
6. We do not find any force in the arguments raised by the learned law officers for NAB that where the "Benamidars" had appeared as D.Ws and produced their evidence, they were sufficiently heard by the Court. Making of a statement as a defence witness, is hardly an adequate opportunity of being heard because in that eventuality, the alleged "Benamidars" are deprived of an opportunity to cross-examine the P.Ws. Likewise, we do not find any force in the argument raised by the learned Deputy Prosecutor General NAB that "Benamidars" can be heard during the course of the process of forfeiture under the Land Revenue Act. We have neither examined nor propose to decide the question whether the process of forfeiture as laid down under the Land Revenue Act, has to be followed or not. Assuming for the sake of argument that the forfeiture procedure as laid down under the Land Revenue Act has to be followed, the fact remains that during the said proceedings, the judgment passed by the Accountability Court has to be executed and the Land Revenue Authorities will have no jurisdiction to go behind the judgment. Therefore, the so-called opportunity of being heard during the process of forfeiture can hardly be termed to be adequate within the meaning of law.
7. For the foregoing discussion, we accept the appeal, set aside the appellant's conviction and sentence and remand the case to the Accountability Court with a direction to commence the re- trial by recalling those prosecution witnesses, who had deposed to the Benami nature of title of properties involved in the case, for purposes of cross-examination by the alleged "Benamidars".
The "Benamidars" shall also be given an opportunity to produce their oral as well as documentary evidence to prove their independent title in the disputed properties and thereafter the trial Court shall pass a fresh judgment on the basis of the material on the record, in accordance with the law.
8. The appellant's learned counsel prayed that the appellant be allowed bail as his conviction has been set aside. Since the case has been remanded to the trial Court, the appellant shall be treated as an under-trial prisoner. For the purposes of bail, the appellant may approach this Court with a separate application. It is also observed at the end that if. After perusing the material on the record, the trial Court comes to the conclusion that the appellant is guilty, then the period of sentence already undergone by him, either as an under-trial prisoner or as a convict, shall be duly considered by the trial Court. The appeal is allowed with the above direction/observation.
THE END