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Petitioner: A. REHMAN MALIK and another VS Respondent: THE STATE and another
Court Name: Lahore High Court Judge(s): Khawaja Muhammad Sharif, Waqar Hassan Mir Title: A. REHMAN MALIK and another vs THE STATE and another Case No.: Criminal Appeal No,2070 of 2009 Date of Judgment:2010-05-17 Reported As: PLD 2010 Lahore 353 Result: Appeal Dismissed
JUDGMENT
JUDGMENT WAQAR HASSAN MIR, J.---Through this single judgment we will dispose of the following Criminal Appeals (filed against conviction and sentence) and the Writ Petitions (filed for suspension of sentence as well as for pre-arrest bail), the particulars whereof are as under: Sr. No,Case No. Description 1. Crim inal Appeal No.2069 of 2009 titled "A. Rehman Malik v. The State etc."Against the order dated 7-1-2004 passed by Accountability Court No. IV, Rawalpindi/Islamabad in Reference No.92/2004 whereby the appellant was convicted under section 31-A of NAB Ordinance, 1999 and sentenced to undergo imprisonment of three years. 2. W .P.No.24671 of 2009 titled "A Rehman Malik v. The State etc."For suspension of conviction' and sentence passed in Reference No.92/2004. 3. Crim inal Appeal No.2070 of 2009Titled "A Rehman Malik and another v. the State etc."Against the Order dated 7-1-2004 passed by Accountability Court No.IV, Rawalpindi / Islamabad in Reference No.91/2004 whereby the Appellants were convicted under section 31-A of NAB Ordinance, 1999 and sentenced to undergo imprisonment of three years. 4. W .P. No.24670 of 2009 titled "A Rehman Malik and another v. The State etc."For suspension of conviction and sentence passed in Reference No.91/2004.
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5. Crim inal Appeal No.2204 of 2009 titled "Sadiq Ali Khan v. The State".Against the Order dated 4-7-2002 passed by Accountability Court, Rawalpindi in Reference No.56/2001 whereby the appellant was convicted under section 31-A of NAB Ordinance 1999 and sentenced to three years' R.I. 6. W .P. No.24864 of 2009 titled "Sadiq Ali Khan v. Judge Accountability Court etc."For pre-arrest bail in the proceedings in Reference No.56 of 2001. . 7. Crim inal Appeal No.2205 of 2009 titled "Sadiq Ali Khan v. The State".Against the Order dated 26-5-2003 passed by Accountability Court, Rawalpindi in Reference No.73/2003 whereby the appellant was convicted under section 31-A of NAB Ordinance, 1999 and sentenced to three years' R.I. 8. W .P. No.24863 of 2009 titled "Sadiq Ali Khan v. Judge Accountability Court etc."For pre-arrest bail in the proceedings in Reference No.73 of 2003. 9. Crim inal Appeal No.29 of 2010 titled "Sikandar Ali Abbasi v. The State etc."Against the Order dated 26-1-2002 passed by Accountability Court No.II, Rawalpindi/Islamabad in Reference No.7/2000 whereby the appellant was convicted under section 31-A of NAB Ordinance, 1999 and sentenced to undergo imprisonment of three years. 10. W .P.No.505 of 2010 titled "Sikandar Ali Abbasi v. The State etc."For pre-arrest bail in the proceedings in Reference No.7 of 2000. 11. Crim inal Appeal No.32 of 2010 titled "Sardar Mansoor Khan Leghari v. The State".Against the judgment dated 3-5-2002 passed by Accountability Court, Rawalpindi in Reference No.56/2001 whereby the appellant was convicted under section 31-A of NAB Ordinance, 1999 and sentenced to three years' R.I. 12. W .P. No.202 of 2010 titled "Sardar Mansoor Khan Leghari v. The State".For suspension of conviction and sentence passed in Reference No.56/2001. 13. W .P. No.203 of 2010 titled "Sardar Mansoor Khan Leghari v. The State etc."For pre-arrest bail in the proceedings in Reference No.56 of 2001. 14. Crim inal appeal No.190 of 2010 titled "Manzoor Hussain Shah v. The State etc."Against the judgment dated 8-12-2003 passed by Accountability Court No.III, Rawalpindi in Reference No.79/2003 whereby the appellant was convicted under section 31-A of NAB Ordinance, 1999 and sentenced to undergo imprisonment for three years. 15. W .P. No.2895 of 2010 titled "Manzoor Hussain Shah v. NAB etc."For suspension of conviction and sentence passed in Reference No.79/2003. 16. Crim inal Appeal No.191 of 2010 titled `Manzoor Hussain Shah v. The State etc."Against the judgment dated 8-12-2003 passed by Accountability Court No.III, Rawalpindi in Reference No.80/2003 whereby the appellant was convicted under section 31-A of NAB Ordinance, 1999 and sentenced to undergo imprisonment for three years. 17. W .P. No.2896 of 2010 titled "Manzoor Hussain Shah v. NAB etc."For suspension of conviction and sentence passed in Reference No.80/2003. 18. Crim inal appeal No.192 of 2010 titled "Manzoor Hussain Shah v. The StateAgainst the judgment dated 8-12-2003 passed by Accountability Court No.III, Rawalpindi in Reference
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etc." No.81/2003 whereby the appellant was convicted under section 31-A of -NAB Ordinance, 1999 and sentenced to undergo imprisonment for three years. 19. W .P. No. 2897 of 2010 titled "Manzoor Hussain Shah v. NAB etc."For suspension of conviction and sentence passed in Reference No.81/2003. 2. The purpose in each writ petition has been mentioned in the above table. However, succinctly the facts of' the criminal appeals are as under: Criminal Appeal No. 2069/2009: On 27-11-1996, a case F.I.R. No.14/1996 under sections 161, 165, 165-A PPC read with section 5(2)47 PCA was registered with Police Station FIA/SIU, Islamabad against the appellant, A. Rehman Malik, (the then ADG, FIA) and others with the allegation that the accused persons received two cars valuing of Rs.17,98,000/- from one Salem Godli of Toyota Karachi as illegal gratification. On 27-11- 1996, the appellant was arrested and sent to jail. On 8-11-1997, the appellant moved post-arrest bail before the learned Special Judge, Central, Rawalpindi, which was allowed on 13-11-1997. On 11-8- 1998, challan was submitted before the Court of learned Special Judge, Central, Rawalpindi. On 14- 12-1998, the learned Special Judge, Central, Rawalpindi declared the appellant as Proclaimed Offender under sections 87/88 Cr.P.C. and directed the prosecution to report for movable and immovable property belonging to the accused/appellant. On 12-12-2003, the learned Special Judge, Central, Rawalpindi, on the application of Lt.-General Munir Hafeez, Chairman NAB, transferred the case to the Accountability Court, Rawalpindi/Islamabad under section 16-A of the National Accountability Ordinance, 1999. On 7-11-2004, the learned Judge Accountability Court No.4, Rawalpindi/Islamabad convicted the appellant under section 31-A of the NAB Ordinance and sentenced to three years' imprisonment. The learned Court held that since the appellant was declared Proclaimed Offender after due process of law, therefore, as per provisions of section 16- A(a) ibid, there is no need to issue the process afresh as the accused is deliberately absconding and concealing himself to screen himself from the proceedings. Criminal Appeal No. 2070/2009: On 1-1-1997, a case F.I.R. No.1/1997 under sections 161, 167, 177, 420 PPC read with section 5(2)47 PCA was registered with Police Station FIA/SIU, Islamabad on the complaint of one Hashim Raza Rizvi against the appellants, A. Rehman Malik (the then A.D.-G., FIA), Sajjad Haider (the then Director, FIA) and another with the allegations that the accused persons conducted raid in his house and took into possession five American Passports along with jewelry and gold ornaments weighing 20-Tolas and a hard cash of seven lacs. The appellants were arrested and sent to jail. On 13-11-1997, the learned Special Judge, Central, Rawalpindi confirmed the ad interim post-arrest bail granted to the appellants. On 24-4-2000, challan was submitted before the Court of learned Special Judge, Central, Rawalpindi, who summoned the accused/appellants through warrant. On 11-11-2000, the learned Special Judge, Central, Rawalpindi, ordered the proceedings of proclamation under sections 87/88, Cr.P.C. against the appellants and others and passed the order under section 512, Cr.P.C. declaring the accused/appellants as proclaimed offenders. On 10-12-2002, the learned Special Judge, Central, Rawalpindi, delivered the copies to the accused/appellants under section 265-C, Cr.P.C. and on 14-1-2003 framed the charge and summoned the prosecution evidence. On 12-12-2003, F.I.R. No. 1/2007 was transferred to the Admn. Judge, Accountability Court, under section 16-A(a) of NAB Ordinance on the application filed by Chairman, NAB. On 12-1-2004, the learned Judge Accountability Court No.4, Islamabad convicted the appellants under section 31-A of the NAB Ordinance and sentenced them to three years' imprisonment. Criminal Appeal No.2204/2009: A case F.I.R. No.06/1999 under sections 409, 109 PPC read with section 5 of the Prevention of Corruption Act, 1947 was registered at Police Station FIA/SIU, Islamabad with the allegation that the
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appellant, who was Managing Director of the Utility Stores Corporation, imported burgers, shrimps and nuggets worth Rs.5.215 Million from Dubai without any market survey and feasibility study; that limited stock was sold and the rest of the stock was perished as a result of which, Utility Stores suffered loss of Rs.3.65 Million; that the appellant as Managing Director of Utility Stores also imported meat through Muhammad Iqbal and Asghar Ali; the meat decomposed and Utility Stores suffered a loss of Rs.32.653 Million. The appellant was arrested in this case and was granted bail by the learned Special Judge, Central, Rawalpindi vide order dated 16-11-1999 and thereafter went to abroad. Later on, the NAB authorities got this case investigated and filed a Reference No.56/2001 under section 18(g) read with section 24 of the NAB Ordinance, 1999 and in this Reference, the appellant along with others was named as accused. In this Reference, vide order dated 28-2-2002 the Accountability Court issued process under section 87 of Cr.P.C. the bail granted to the appellant was withdrawn and his non-bailable warrants were issued. The appellant submitted an application before the Court through counsel requesting that he should be allowed to appear through counsel, but the Court vide order dated 6-6-2003 rejected the application. The learned Accountability Court, Rawalpindi vide order dated 4-7-2002 convicted and sentenced the appellant to undergo three years' R.I under section 31-A of NAB Ordinance, 1999. Criminal Appeal No.2205 of 2009: Reference No.73/2003 was filed against the appellant on the allegation that he, being Managing Director of Utility Stores Corporation of Pakistan, in purchase of computers caused financial loss to the Utility Stores Corporation. The appellant at the time of filing of this Reference was out of Pakistan. However, the learned Accountability Court, Rawalpindi vide order dated 26-5-2003 convicted the appellant under section 31-A of the NAB Ordinance; and sentenced him to undergo three years' imprisonment. Criminal Appeal No.29 of 2010: In Reference No.7/2000, the allegation against the appellant, the then Deputy Director, CDA, was that he committed the offence of corruption and corrupt practices as defined under section 9 of the NAB Ordinance inasmuch as he along with other patron of Mehran Gas Company received Rs. 19,693,727/- and this benefit was derived by them illegally and through undeserved allocation of gas. The appellant absconded and was declared proclaimed offender by the Accountability Court, Rawalpindi/Islamabad and vide judgment dated 26-1-2002 was convicted under section 31-A of the NAB Ordinance and sentenced to three years' R.I. Perpetual warrant of arrest was ordered to be issued against him. Criminal Appeal No.32/2010: In Reference No. 56/2001, allegation against the appellant, Ex-MNA, is that his co-accused namely Sadiq Ali Khan, Ex-Managing Director, Utility Stores Corporation, awarded contract for import of meat from Australia and other edible products from Dubai through a firm namely M/s. Muhammad Ahmad and Bros., owned by his other two co-accused, who at all material times were acting as front men of the appellant. The contracts were awarded in utter disregard to the established rules and procedure, without conducting the required market survey with a view to ascertain demand for their consumption and with the intention to extend undue monetary benefit to the appellant as a consequence thereof, the Utility Stores Corporation suffered a cumulative loss of Rs.3,36,21,297. The appellant was declared proclaimed offender and vide order dated 3-5-2002 passed by the Accountability Court, Rawalpindi/Islamabad was convicted under section 31-A of the NAB Ordinance and sentenced to three years' R.I. Perpetual warrant of arrest was ordered to be issued against him. Criminal Appeal No.190/2010: The appellant at the relevant point of time was serving in the Capital Development Authority as Assistant Director (Civil) when he was .nominated as accused in Reference No.79/2003 by the
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National Accountability Bureau. NAB Reference was constituted in consequence of F.I.R. No.06/97 dated 22-4-1997 registered at Police Station, FIA, Rawalpindi under sections 419, 420, 466, 467, 409, 201, 204 and 109, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. The allegation was that the appellant and his co-accused prepared bogus and illegal revenue orders and made payments of compensation and allotment of plots to them without their entitlement as such they misused their authority so as to gain benefit for themselves and caused a loss of Rs.5,13,78,879/- to the National Exchequer and thereby committed the offence of corruption and corrupt practice as defined under section 9 and punishable under section 10 of the National Accountability Ordinance, 1999 and Schedule thereto. The appellant was declared Proclaimed Offender and convicted under section 31-A of National Accountability Ordinance, 1999 and punished to undergo imprisonment of three years and warrants were directed to be issued accordingly. Criminal Appeal No.191/2010: The appellant at the relevant point of time was serving in the Capital Development Authority as Assistant Director (Civil) when he was nominated as accused in Reference No.80/2003 by the National Accountability Bureau. NAB Reference was constituted in consequence of F.I.R. No.06/97 dated 22-4-1997 registered at Police. Station, FIA, Rawalpindi under sections 419, 420, 466, 467, 409, 201, 204 and 109, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. The allegation was that the appellant and his co-accused prepared bogus and illegal revenue orders and made payments of compensation and allotment of plots to them without their entitlement as such they misused their authority so as to gain benefit for themselves and caused a loss of Rs.2,78,24,575 to the National Exchequer and thereby committed the offence of corruption and corrupt practice as defined under section 9 and punishable under section 10 of the National Accountability Ordinance, 1999 and Schedule thereto. The appellant was declared Proclaimed Offender and convicted under section 31-A of National Accountability Ordinance, 1999 and punished to undergo imprisonment of three years and warrants were directed to be issued accordingly. Criminal Appeal No.192/2010: The appellant at the relevant point of time was serving in the Capital Development Authority as Assistant Director (Civil) when he was nominated as accused in Reference No.81/2003 by the National Accountability Bureau. NAB Reference was .constituted in consequence of F.I.R. No.6/97 dated 22-04-1997 registered at Police Station, F.I.A., Rawalpindi under sections 419, 420, 466, 467, 409, 201, 204 and 109, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. The allegation was that the appellant and his co-accused prepared bogus and illegal revenue orders and made payments of compensation and allotment of plots to them without their entitlement as such they misused their authority so as to gain benefit for themselves and caused a loss of Rs.1,93,09,001 to the National Exchequer and thereby committed the offence of corruption and corrupt practice as defined under section 9 and punishable under section 10 of the National Accountability Ordinance, 1999 and Schedule thereto. The appellant was declared Proclaimed Offender and convicted under section 31-A of National Accountability Ordinance, 1999 and punished to undergo imprisonment of three years and warrants were directed to be issued accordingly. 3. On 5-10-2007, National Reconciliation Ordinance, 2007 was enforced. All the appellants got benefit of National Reconciliation Ordinance, 2007 and references/cases were terminated accordingly under section 33-F of the Ordinance. But vide judgment dated 16-12-2009 the honourable Supreme Court of Pakistan declared the amending provision of NAB Ordinance as void ab initio and non-existent in the eye of law and further directed that all the cases, which were pending before 5th of October, 2007, shall stand revived and that the judgment and sentence under section 31-A of the NAO, 1999 shall remain intact to be challenged in accordance with law as
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the same cannot be held void by issuing of Ordinance by the President. Hence all the aforementioned appeals. 4. Ch. Mushtaq Ahmad Khan, the learned counsel for the appellants in Criminal Appeals Nos.2069/2009 and 2070/2009 and petitioners in Writ Petitions Nos.24670/2009 and 24671/2009 has opened the arguments by submitting that the appellants/petitioners remained in jail from 27- 11-1996 to 13-11-1997 for one year and the prosecution could not prove any guilt against them through cogent evidence; that the Accountability Court cannot take cognizance of the case under the provisions of NAO, 1999 unless and until a Reference is filed by the Chairman, NAB; that the offence under section 31-A of the NAO, 1999 was created subsequent to the initiation of the proceedings in the case in hand and unless and until a separate Reference had been filed by the Chairman, NAB, neither any trial could be competently held by the learned trial Court nor conviction and sentence could be awarded under the said section; that when no reference under section 18(a) was filed, even the cognizance could not be taken of the main case, wherein the impugned orders have been passed. Further argued that the provisions of section 31-A of the NAO, 1999 making the absconsion as an offence had been enforced by making of amendment in the NAO, 1999 on 3-2-2000, therefore, unless and until there was an allegation and proof of commission of offence of absconsion after that date, no punishment under the said section could be awarded as per the provisions of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973; that the impugned judgment has been rendered on the basis of alleged absconsion during the course of trial before the learned Special Court and said absconsion is liable to be dealt with under the provisions of Code of Criminal Procedure and not under the offence created under the NAO, 1999 as amended upto date. 5. The learned counsel has also argued that the learned trial Court was only competent to hold the trial under the said Ordinance, therefore, the very basis on which the offence has been committed is non-existent in the eye of law; that neither any proceedings culminating in absconsion have been held by the learned Accountability Court nor any trial has been held before the learned trial Court after the case was transferred to the said Court on 12-12-2003 and immediately whereafter the judgment was rendered on 7-1-2004, as such the impugned judgment is coram non judice and non-existent in the eye of law. Further argued that no independent trial was held by the learned Accountability Court while holding that the appellants are guilty under section 31-A of the NAO, 1999, therefore no conviction and sentence could have been recorded without holding of the trial by the learned Accountability Court; that the conviction and sentence awarded in absentia is void ab initio as held in Mehram Ali's case reported as PLD 1998 SC 1445, as such the impugned judgment is not sustainable. That the finding of the learned Accountability Court to the effect that the appellants were absconders is patently illegal and is based upon erroneous assumptions and presumptions as they had been forced to leave the country when they were on bail and thereafter were in exile till they re-entered to the country, where they could not enter like Mian Muhammad Nawaz Sharif, as such it cannot be held that the appellants are absconders; that the appellants are sufferers of political victimization at the hands of those who were at the helm of affairs and were angry and inimical to them for their honest performance of official duties, therefore, their case cannot be clubbed with other cases and has to be assessed and decided independently; that after granting bail while approaching the Court of learned Special Judge, Central and facing trial, the appellants were forced to leave the country when so-called conviction and sentence was awarded; that immediately after the judgment was rendered by the honourable Supreme Court of Pakistan that provisions of NRO are illegal and judgment under section 31-A of the NAO, 1999 shall remain intact and shall be challenged under the law, the appellants filed the appeals and this Court after entertaining the appeals suspended the sentence being patently void and not maintainable.
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6. It is further argued by the learned counsel for the appellants that as per the law declared in Nawaz Sharif's case, the question of limitation is of no legal importance and the appeal can be decided on merits and as the impugned judgment is patently void ab initio, hence the same is not maintainable that the learned Special Judge Central, Rawalpindi confirmed the ad interim post arrest bails of the appellants in case F.I.R. No.14/1996, which order was never challenged, therefore, question of abscondence does not arise; that the appellant A. Rehman Malik was arrested in case F.I.R. No. 14/1996 in which he was allowed bail and was released from jail on 1-1-1997, when he was again arrested in F.I.R. No. 1/1997 on the basis of political victimization. Lastly argued that the appellant A. Rehman Malik has been involved in the case on account of political victimization while performing his duties honestly and diligently as Additional Director General, F.I.A.; he was forced to leave the country to remain exile till the time when he could re-enter the country after enforcement of NRO on 5-10-2007; after a short while when he re-entered the country on 18-10-2007, he surrendered himself before the learned Accountability Court and applied for passing of order of acquittal in terms of NRO, which was allowed; appeal has been filed before this Court in obedient implementation of the judgment rendered by the apex Court; he has been appearing before the learned Accountability Court regularly except the dates on which he was granted exemption. In support of his various contentions, noted above, the learned counsel has relied upon the following judgments: Abdul Sattar Dero v. The State (2002 YLR 1870); Abdul Rehman v. The State (1978 SCMR 292); Faisal Jameel v. The State (2007 MLD 355); The State through Prosecutor General, NAB Pakistan v. Dr. Dad Muhammad Khawaja Khalil (PLD 2003 SC 11); Land, Acquisition Collector, Nowshera and others v. Sarfaraz Khan and others (PLD 2001 SC 514); Mst. Mussarat Ara Khannum v. Umaid Ali and another (2001 SCMR 1647); Muhammad Shafi v. Mushtaque Ahmad through Legal Heirs and others (1996 SCMR 856); Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208); N.M.V. Vellayappa Chettiar v. Alagappa Chettiar (AIR 1942 Madras 289); Zahid Iqbal v. State (PLD 1991 SC 575); Hayat Bakhsh and others v. The State (PLD 1981 SC 265); Haji Rehmdil v. The Province of Balochistan and another (1999 SCMR 1060); Mansoor Ahmad Qureshi v. The State (PLD 2005 Karachi 443); Noor Muhammad Khatti and others v. The State (2005 PCr.LJ 1889); The State through Prosecutor General, NAB, Islamabad v. Aftab Ahmad Khan Sherpao (PLD 2005 SC 399); Mehram Ali and others v. Federation of Pakistan and other (PLD 1998 SC 1445). For the submission that in criminal cases, limitation is not of much importance and the case is to be decided on merits, the following judgments have been cited: Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 SC 644); Mian Muhammad Nawaz Sharif v. The State (PLD 2009 SC. 814); Zaiul Rehman v. The State (2001 SCMR 1405); The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur- Rehman (PLD 2005 SC 270); Mrs. Shahida Faisal v. Federation of Pakistan and others (PLD 2005 SC 323). 7. The learned counsel for the other appellants/petitioners almost adopted the arguments of Ch. Mushtaq Ahmad Khan, Advocate. However, the accumulative submissions made by learned counsel for all appellants/petitioners, in our words, are summed up as under:…
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