FAZAL-UR-RAHMAN, J.---Since in all Criminal Appeals Nos. 37, 38, 39 and 40 of 2002 under section 32 of the National Accountability Bureau. Ordinance, 1999 (hereinafter called as Ordinance), directed against the judgments, dated 31-8-2002 passed by the learned Judge Accountability Court-11, Baluchistan, Quetta, common questions of law and facts are involved; therefore; they are taken together and will be disposed of by one and the same order.
2. Appellant was tried by the learned Accountability Court-II, Quetta in the following references convicted and sentenced as under:---
3. The learned Judge Accountability Court while convicting the appellant in References Nos.3 and 4 of 2002 impugned in Appeals Nos.37 and 39, has made the following observations:-- "The matter was fixed for final judgment on 27-7-2002 accused Maqbool Ahmed Lehri, absented himself, thereafter, proceeding under sections 87 and 88, Cr.P.C. Were drawn against him but he did not appear despite publication of the proclamation under section 87, Cr.P.C. Whereas, the Hon'ble High Court of Baluchistan vide Order, dated 28-8-2002 also directed accused Maqbool Ahmed Lehri, to appear before this Court on 31-8-2002 which he failed. Warrant of arrest of accused has already been returned unserved and his surety has also failed to produce accused, therefore, the fact and circumstances proves that accused has wilfully absconded and is concealing himself so as to avoid appearance before this Court in this Reference. Accordingly accused Maqbool Ahmed Lehri, is declared Proclaimed Offender (P.O.) and proceeded in his absence but as accused participated in whole of the proceeding and he availed full opportunity of defence, therefore, the matter cannot be kept pending/dormant against accused Maqbool Ahmed Lehri. Besides, the evidence available on the record can only be considered in toto and. Making any observation and thereafter keeping the file in dormant would be improper. Hence the matter is finally decided against all the accused who have participated in whole of the trial. "
Similarly, the learned Judge Accountability Court while convicting the appellant under section 31-A of the said Ordinance, has observed as under:-- "Accused Maqbool Ahmed Lehri, is absent, his counsel Mr. Ayaz Sawati, Advocate failed to advance any justification, however, copy of Order, dated 28-8-2002 of Hon'ble High Court of Baluchistan in Criminal Revision No.82 of 2002 has been produced, according to which the accused was directed to appear before this Court today but he has failed to appear whereas, proclamation under section 87, Cr.P.C. Was also published on 1-8-2002 despite which accused failed to appear before this Court. Besides, after accused absented himself, his warrant of arrest were issued which remained unserved as accused was reported to have concealed himself. Surety of accused also failed to produce accused. All the facts one after the other lead to the conclusion that accused uespite having knowledge of the proceeding has wilfully absented himself to avoid appearance before the Court. Hence, he is declared Proclaimed Offender (P.O.) and proceeded in his absence.
4. Learned Deputy Attorney-General and Mr. Jamal Khan Mandokhail, Advocate on behalf of DPG, NAB Baluchistan, at the very outset have submitted that since these appeals have been tiled under section 32 of the said Ordinance and the appellant is a fugitive from the law, he cannot avail the benefit of the provisions of said section without first surrendering before the Court, therefore, the same are not maintainable.
5. According to learned counsel for the appellant, there is no evidence to connect the appellant with the commission of offences, therefore, the convictions recorded by the learned Court were not warranted by the law. He requested for admission of the appeals and suspension of the operation of the impugned judgments. Learned counsel has, however, expressed his inability to produce the appellant before this Court as according to him, there is every likelihood, that the appellant will be arrested.
6. After hearing the learned counsel for the parties regarding maintainability of the appeals and going through the relevant observations made in the judgments impugned in the above appeals, we are inclined to agree with the contention of learned Law Officers that a convict who becomes a fugitive from the law/Court, is not entitled to invoke the provisions of section 32 of the Ordinance to challenge his conviction. We also concur with the view expressed in the judgment relied upon by the learned Deputy Attorney-General and reported in PLD 2002 Lah.
74. It is also pertinent to note that the appellant did appear before this Court in connection with Criminal Revision No.82 of 2002 on 28-8-2002, in his own interest, he was directed to appear before the Accountability Court-I on August 31. 2002. It appears that he even did not comply with such direction which can be treated as adverse conduct, now he cannot seek a reward for such a conduct in becoming fugitive from law without surrendering himself before the Court or jail authorities. It is now well-established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. Reliance is placed on the authority reported in PLD 1985 SC 157.
7. In PLD 1964 SC 58 it has been held that: "There is considerable weight in the argument that when a convict becomes fugitive before filing petition for leave to appeal, his petition itself would not be properly constituted. This can be noticed as one line of reasoning in the case of Gul Hassan. The second proposition submitted by the learned counsel is also correct, because it flows from the first one. If a convict after filing a petition becomes fugitive and does not surrender, he deprives himself of the relief claimed in the petition.
Similarly, there would be no difference if he absconds after obtaining special leave to appeal, or after obtaining a bail order. It is not possible to agree with Mr. Zafar that in this situation the absconder can get the benefit of his appeal being kept pending sine die till he surrenders. Nor will there be any justification for the proposition that if there are more convicts/appellants, the appeal of the absconder should be separated and adjourned sine die to await his surrender in case he cannot be benefited on the hearing of the appeal of his co-appellant. There is no basis or principle for adopting this suggestion as a normal course by this Court; and if that is done, it would be placing premium on the negative conduct of the absconding appellant if he is allowed to remain fugitive from justice and also benefited by deciding his appeal in his favour when hearing the appeal of his co-convict. Such a course, if adopted as a normal routine, would not only encourage abuse of process of this Court; but would also disturb the fabric of administration of justice at the appellate stage."
8. In PLD 2002 Lah. 74 it has been held that: "There is yet another difficulty in entertaining the present appeal. Under the law a convict is bound to surrender before the Court to undergo the sentence of imprisonment passed against him/ her.
The convict who becomes a fugitive from the law is not entitled to invoke the provisions of section 32 of the Ordinance to challenge his conviction. This Court had expressed this view in the case of Haq Nawaz v. The State (1999 PCr.LJ 1381) which was upheld by the Hon'ble Supreme Court of Pakistan in the case reported as Haq Nawaz and others v. The State and others (2000 SCMR 785).
The appellant's learned counsel has heavily relied on the judgment in the case of Mohtarama Benazir Bhutto (supra) to urge that a convict can file an appeal even without surrendering before the Court. This case is distinguishable because the appellant in the said case remained absent during the course of trial with the leave of the Court and for that reason her appeal was entertained in her absence on the consideration that the appeal was a continuation of trial. In the case in hand no such permission was granted to the convict by the trial Court. "
9. In 1999 PCr.LJ 1381, it has been held that:-- "That is why superior Courts in our country have taken the view that an individual seeking review of a judicial order must surrender to the process of law and if he decamps, he loses right of audience and his appeal can be dismissed and sentence of death confirmed on merits in his absence. The question regarding fate of the appeal of an absconder must be decided in the light of the peculiar facts and circumstances of a case, the scheme of the law and the dicta laid down by the Honourable Supreme Court of Pakistan in the cases of Chan Shah, Gul Hassan, Hayat Bakhsh, Allah Bakhsh and Zahid Iqbal, discussed above. "
10. Having regard to the above mentioned factors and following the principles laid down in the cited authorities, we are of the view that these appeals in the circumstances are not entertainable and the same are accordingly dismissed.
Crl.
Appeal No.Ref.
No.Sentenced 37 of 2002.3 of 2002.Under section 10 read with 11 and 12 of NAB Ordinance, sentenced to 3 years' R.I.
With fine of Rs.10,00,000. Assets were forfeited. In default to undergo 1 year's R.I.
38 of 20023 of 2002.Under section 31-A of NAB Ordinance sentenced to 2 years' R.I.
39 of 20024 of 2002.Under section 10 read with 11 and 12 of NAB Ordinance sentenced to 3 years' R.I.
With fine of Rs.25.00,000, assets are forfeited, in non-- payment to undergo for 1 year's R.I.
40 of 20024 of 2002Under section 31-A of NAB Ordinance sentenced to 2 years' R.I.