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Petitioner: NOOR MUHAMMAD KHATTI and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Wahid Bux Brohi Title: NOOR MUHAMMAD KHATTI and others vs THE STATE Case No.:Criminal Accountability Appeals Nos.15 of 2000; 47 of 2001; 4, 21, 43, 62 of
JUDGMENT
Reported As: 2005 P C R L J 1889 Result: Appeals allowed Judgment JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Criminal Accountability Appeals Nos.15 of 2000, 47 of 2001, 4 of 2002, 21 of 2002, 43 of 2002, 62 of 2002, 4 of 2003, 5 of 2003, 13 of 2003, 14 of 2003, 15 of 2003, 4 of 2004, 11 of 2004 and 12 of 2004, as common questions of facts and law are involved. 2. Common facts for the purpose of present accountability appeals are that the Chairman NAB filed the references under section 18(g) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as "the Ordinance") against the appellants and other persons for offence punishable under section 10 of the Ordinance, out of which the present appeals have arisen. The appellants in their respective references were shown as absconders, therefore, the Accountability Courts issued non-bailable warrants for their arrest, to procure their attendance for the trial. The non-bailable warrants were not being served on various grounds. Ultimately, the trial Courts recorded the statements of process-servers. Thereafter, proclamations under section 87, Cr.P.C. Were issued against the appellants that were duly published, directing them to appear before the Courts within 30 days of the publication of the proclamations. The appellants did not appear before the trial Courts, therefore, the orders for attachment of their properties were passed and proceedings under section 88, Cr.P.C. Were initiated. In some cases after publication of proclamations under section 87, Cr.P.C. And in some cases at the time of final judgments of the references, the trial Courts convicted the appellants in absentia under section 31-A of the Ordinance and sentenced each of them to suffer R.I. For three years. The trial Courts for convicting the appellants simply took into consideration the statements of process-servers, which were
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recorded for issuance of proclamations under section 87, Cr.P.C. Without framing the charge or adopting any regular or summary procedure of trial of offence. Based on such statements the trial Courts formed the opinion that the appellants had evaded, avoided the service of warrants or concealed themselves in order to save themselves from the proceedings and punishment under the Ordinance. The appellants were dissatisfied with the said judgments; therefore, they have impugned the same through the above appeals. 3. We have heard the Advocates for the appellants, Deputy Prosecutor-General, NAB, perused the record of this case and the law involved in the matter very carefully. 4. 'The learned Advocates for the appellants have stated that the appellants were tried in absentia without giving them any opportunity to defend themselves properly which violates the Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"); that the trial in absentia has been declared illegal by the Honourable Supreme Court of Pakistan in Gul Zaman Kasi v. State Criminal Appeal No,269 of 2003, decided on 11-10-2004. They have further argued that the appellants were convicted on the statements of process-servers which were recorded during the proceedings under section 87, Cr.P.C. That cannot be termed as evidence, according to law for convicting the appellants; that no regular procedure has been adopted for trial and convicting the appellants therefore, the convictions and sentences may be set aside. 5. On the other hand learned Deputy Prosecutor-General NAB has submitted that the Honourable Supreme Court of Pakistan in the above-referred authority has declared the trial in absentia as illegal but the judgment is not clear as to whether it was given in an appeal filed against conviction under section 31-A of the Ordinance, therefore, the same is not applicable, in the case. The learned Deputy Prosecutor-General after going through the connected Appeal bearing No,68-Q of 2003 conceded that the above-referred judgment of the Honourable Supreme Court of Pakistan is in respect of conviction under section 31-A of the Ordinance. However, he has further stated that the trial in absentia is permissible under Anti-Terrorism Act, 1997. He has further stated that under section 17(c) of the Ordinance the trial Courts were competent to dispense with the provisions of Cr.P.C. For the trial of any offence and can adopt any procedure as deem fit, therefore, the trial Courts found it proper to prosecute the appellants for offence punishable under section 31-A of the Ordinance in the manner as taken by them in these proceedings and then convicted the appellants, therefore, the procedure adopted by the trial Court is protected under the above- referred provision of law. Nevertheless, he has argued that in view of the decision of the Honourable Supreme Court of Pakistan he is unable to controvert the said judgment. 6. We have given due consideration to the arguments, gone through the material available on the record` and find that the accused were convicted in absentia. In some of the earlier enactments, the Legislature have allowed the Courts to try the accused in absentia after fulfilling certain conditions. The said provisions are available in Suppression of Terrorist Activities Act, 1975 and Anti- Terrorism Act, 1997. In both the enactments, a detailed procedure has been provided for the trial of accused who absconds because he evaded and avoided the service of warrants or concealed himself to screen himself from the proceedings and punishment. The procedure starts from the issuance of warrants, publication of proclamation in the newspapers, engaging an Advocate on State expenses or by the accused, framing charge, recording evidence allowing the Advocate to conduct cross-examination to the witnesses, hearing arguments, pronouncing judgment in the absence of the accused, setting aside judgment if accused appears before the Court after fulfilling certain conditions. 6-A. However, the Legislature while enacting the Ordinance, no such procedure has been provided for the trial and conviction of accused who absconds as he avoids service of warrants. Thus, the Legislature already knew that the accused can be tried and convicted in absentia, if so permitted and a detail procedure has been provided in the earlier enactments but the departure has been
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made in the Ordinance from the procedure mentioned in the said enactments. This clearly demonstrates the intention of the Legislature that the procedure for trial of accused or proceedings in absentia are not permissible under the Ordinance. It is the bounded duty of the Courts to carry out the intention of the Legislature while deciding the cases but it appears that the trial Courts did not pay any attention to this aspect of the case and tried the accused in absentia. ' The said trial violates the provisions of Article 9 of the Constitution that provides "No person shall be deprived of life and liberty save in accordance with law". Thus, the Constitution guarantees that no person would be deprived of liberty "save in accordance with law". The Honourable Supreme Court of Pakistan in the case of Gul Zaman Kasi A (supra) clearly held that trial in absentia is violative of Article 9 of the Constitution and as relied upon the case of Muharam Ali v. Federation of Pakistan PLD 1998 SC 1445. Thus, the convictions and sentences awarded to the appellants under the impugned judgments are liable to be set aside. 7. As regards the procedure, a perusal of various laws reveals that the laws can be categorized mainly in two categories (1) Substantive law (2) Adjective or procedural law. Under a substantive law acts and omissions have been made offences and punishable, such as Pakistan Penal Code. Whereas the procedural law provides machinery for the punishment of offences against the substantive law, such as 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 hot clearly and intelligently described in the very word of the statute itself. Because the Courts are required to be more anxious to protect the liberty of the citizen and to see that, an innocent man does not suffer rather than consider questions of policy. Where an act involves the freedom of the B citizen, the Court is unwilling to give a construction taking away such freedom. Whereas the procedural law or adjective laws are meant to be used in favor of the citizen and for furtherance of justice and not as a means of pressure. 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 Cr.P.C. Is to ensure that an accused person gets a full and fair trial along with certain well-established and well- understood lines that accord with our notions of natural justice. The Cr.P.C. 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. Reference is invited to the cases of Ganash Narain 13 Bombay 590; Abdul Rahman 16 Bombay 580, Kola 18 Cal. 214; Lakshmi Chand 1901 PR 24; Bhupeiidra v. Secretary 51 Cr.L.J. 169; Javery v. Bhagwati 51 Crl.L.J. 736. 8. A perusal of the Ordinance shows that there are certain provisions that contain Substantive law, some provisions contain procedure law and some provisions contain substantive and adjective or procedural law. For example,. Section 30 contains both procedural and substantive laws. Sections 10, 31-A contain only substantive law. Section 17 contains only procedural law. 9. 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 trial of an offence under the said statute. The provision of Code of Criminal Procedure, which is self-contained Code for the holding of criminal trials, has been made applicable to the proceedings under the Ordinance as provided by section 17(a) of the Ordinance. However, where a special Act makes special offence and 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 authorises the Accountability Court to dispense with the procedure mentioned in the Cr.P.C. Including its procedure of Chapter XXII-A. It further authorises the Court to adopt any procedure as deems fit in
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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) 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." 10. Dispensation of provisions of Cr.P.C. And following any procedure does not mean that the arbitrary and capricious or the procedure against the natural justice should be adopted. The Judges should keep in the mind that the procedural law is not merely formalities because it affects the liberty of citizen. 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 an all pervading care to ensure the liberty of the subject and due dispensation of justice. 11. 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. In the cases of Province of East Pakistan v. Nur Khan PLD 1964 SC 451; Maker Wal Callierus Ltd. v. Government of N.-W.F.P. 1993 SCM R 1140; Superintendent of Police v. Abubakar 1972 SCM R 154 and Muhammad v. State PLD 1961 Kar. 709, it has been held that the principle: audi alteram partem (no person should be condemned unheard) is presumed to be included in every statute in the absence of any provision of contrary or if the action is going to affect any vested right of a person or opportunity of hearing cannot be taken away arbitrary without following the principles of natural justice. 11-A. The natural justice requires that the accused person should be tried by a competent Court. He should be told and clearly understands 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. It is pointed out that the intention of the Procedure Code is that they should not encourage the hindering of justice but all procedure is intended to help justice. Basic rule is that Criminal Courts exist for the administration of justice and the Courts have inherent powers to mould the procedure, subject to the statutory provisions applicable to the matter in hand, to enable them to discharge their functions as Courts of justice. The said power is not capriciously or arbitrarily exercised. It is exercised as debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. However, the Courts in the exercise of such inherent power must be careful to see that their decisions are based on sound general principles and are not in conflict with them or with the intentions of the Legislature as indicated in statutory provisions. Nevertheless, inherent powers cannot be exercised in matters for which the statute has made express provision and in a manner calculated to defeat the statutory provision. Because if the Criminal Procedure Code deals with any point specifically then the Code must he deemed to be exhaustive and the law must be ascertained with reference to its provisions. However, when a case arises which obviously demands interference, and it is not within those for which the Criminal Procedure Code specifically provides, it would not be reasonable to say that the Courts had no power to make such order, as the ends of justice require. In the absence of any provision on a particular matter, the correct principle is that in matters of procedure, a particular procedure should be considered to be permissible if it is not prohibited. Thus, it is not open to the Court to travel outside the Criminal Procedure Code for finding a way to interfere with the liberty of the subject. Reliance has been placed on the cases of Zamir Qasim v. Emperor AIR 1944 All. 137;
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Imam 10 All. 150; Raghubhai v. Bai Arbinda AIR 1937 Cal. 334; Pulim Bhari Das 16 CWN 1105; Bhudhu Lal v. Chutta Gope 44 Cal. 816; Pigol v. Ali Muhammad AIR 1921 Cal. 30; Rahim Shaikh 52 Cal. 872 and Md. Majulal Haque v. Bisseswa r AIR 1940 3 Cal. 36. 12. In the present cases, the trial Courts have 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 XXIT (summary trial) of the Cr.P.C. Thus, the trial Courts have 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. 13. A perusal of the record reveals that the trial Courts did not pass any order dispensing with the procedure provided under the Cr.P.C. Or the procedure provided under section 17(b) 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 trial Courts were duty bound to adopt the procedure as provided under section 17(b) of the Ordinance. The said procedure is applicable to all offences under the Ordinance except the offences for which separate procedure is provided there under. 14. For trial of offence punishable under section 31-A no separate procedure has been provided under section 17(b) is required to be followed unless for reasons to be recorded, the said procedure is dispensing with. However, the trial Courts neither passed any order within the meaning of section 17(c) nor followed the procedure as provided under second 17(b) thereby committed gross illegality in trial of the cases. The said illegality cannot be cured under section 537, Cr.P.C.Because it has materially caused prejudice to the appellants and occasioned a failure of justice. Thus, on this account the procedure adopted by the trial Courts for the trial of offence punishable under section 31-A of the Ordinance, in violation of the procedure mentioned in the Cr.P.C. And section 17(b) of the Ordinance is liable to be set aside. 15. We are astonished to see that the trial Courts did not follow the procedure as provided under section 17(b) of the Ordinance in adopting the procedure of the trial of the cases. They have travelled beyond the scope of natural justice. They have violated the settled principles of law and justice, because justice requires that it should not only be done but it should manifestly be seen to be done. The procedure adopted by the trial Courts have infringed the Constitutional rights of the citizens particularly Article 9 that has adversely affected the liberty of citizens which is required to be guarded on all costs within the parameters of the Constitution and law. 16. As regards the reliance on the statements of process-servers, a perusal of Criminal Procedure Code reveals that the Code is divided into parts, chapters, some of them contain sub-chapters and the chapters and sub-chapters contain various sections. The chapter contains heading which gives the intention of the Legislature about the scheme of that chapter. The basic rule for interpretation of the statute is that the sections falling within the chapter should be interpreted with reference to the matters dealt with by the Chapter. In 33 Cal. (D.B.) and 5 Bombay H.C.R. (Cr) 69 (FB) (Criminal Procedure Code by Shoukat Mehmood Edition 2003, page 3) it has been observed that the division into chapters is an organic feature of the Criminal Procedure Code and all the sections falling under one chapter must be interpreted as having reference exclusively to matters within the purview of that chapter. 17. Keeping in view the scheme of the Code, it will be noticed that 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
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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 subchapters "A" to "E" 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. 18. 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 a absconding 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 proclamation 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. 19. In the present cases the trial Court issued warrants for the arrest of the appellants to procure their attendance so that the trial concerning main offence in the reference may commence against them. As the warrants were not being served, therefore, the statements of the process- servers were recorded to issue proclamations as required under section 87, Cr.P.C. And thereafter the attachment of property of the accused persons. Thus, the proceedings were initiated to compel the appellants to appear before the Court. In order to achieve that object, the warrants were issued to procure their attendance. The statements of the process-servers were recorded to issue proclamations under section 87, Cr.P.C. Enabling the Courts 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 persons. Therefore, both the proceedings should not be mixed up together. 20. The trial Courts while convicting the appellants have relied upon the statements of process- servers, which were recorded for issuance of proclamations under section 87, Cr.P.C. And in some of the cases the proceedings under section 512, Cr.P.C. Were ordered. As already observed that these proceedings were initiated in respect of procuring the attendance of the accused persons. These proceedings were not in respect of trial of offence under section 31-A of 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 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 authority 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." 21. 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 of process issued under the Ordinake 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 of the issuance of the process and absconding, seeking to avoid receipt of the process. It will be further noticed that at two stages, this offence can be committed; (1) before the filing of reference, (2) after filing the reference. If the
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process issued by any other authority or officer (which is always issued before the filing of the reference) is disobeyed in the manner mentioned in the section then the said offence can be included in the main reference along with other offence. If the process issued by the Court after filing the reference and during pendency of reference, is disobeyed in the manner mentioned in the section, then the Court can try the accused because the offence was committed in the reference on which the Court had already taken cognizance. The Court is always competent to include an offence in charge which is made out from the facts and circumstances of the case. If it is made out after recording some evidence, then by amending the charge. For that no separate police report is required.…
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