2015 PLP 1572 (MLD)

JAMAL KHAN MANDOKHAIL, J.

Facts of the case are that the reference No.1 of 2014 under section 18(g) read with 24(b) of the NAB Ordinance, 1999 was filed by the NAB authorities against the petitioner, wherein it is alleged that at the time of submission of the reference, the petitioner was serving as Assistant Director, Food Department, at Kalat. The trial Court issued warrants of arrest against the petitioner at his official address at Kalat as well as on his residential address at Karachi through the concerned police. The warrants could not be served upon the petitioner as such, the concerned ASI namely Muhammad Yousaf appeared before the Court and recorded his statement as Court witness being CW-1. The said witness produced before the Court the copy of warrants and report of the SHO Darkhshan police station Karachi. On 14-5-2014, the trial Court ordered that the proceedings under sections 87/88, Cr.P.C. be initiated against the petitioner. According to the order sheet dated 27-5-2014, the publication had been made in the daily Jung Quetta and Daily Maizan Quetta on 17-5-2014. Consequently on 30-5-2014, the Court ordered to proceed against the petitioner under section 88, Cr.P.C. On the next date of hearing, i.e. 20-8-2014, the trial Court passed the order impugned under section 31-A of the NAB Ordinance, whereby the petitioner was convicted and sentenced to suffer an imprisonment for three years RI, hence this petition.

2. Learned counsel for the petitioner stated that the petitioner remained on his duty on the date of issuance of the warrants of the arrest, but no effort was made by the respondent to serve him. According to him, admittedly the petitioner is a Government Officer in Balochistan, therefore, there was no occasion to issue warrants of his arrest at Karachi. The learned counsel added that apparently, the procedure provided by section 87 of Cr.P.C. has not been followed by the trial Court, as such, the order impugned is a nullity in the eyes of law.

3. Learned ADPG and Special Prosecutor NAB opposed the contention and stated that the petitioner has avoided to appear before the Court to face the trial, therefore, proceedings under sections 87/88 were initiated and warrants were published in the newspapers. They stated that warrants of arrest of the petitioner were issued against the petitioner at his both given addresses, i.e. District Food Officer Kalat and at Karachi. but he avoided service, as such, he was rightly declared absconder, on the basis of which, the trial Court was right in convicting him.

4. We have heard the learned counsel for the parties and have gone through the record. It is an undisputed fact that the petitioner was posted as Assistant Director Food Department at Kalat and on 14-5-2014. The CW-1 (ASI, Muhammad Yousaf), while appearing before the Court, submitted a report that the office of the Food Department at Kalat. One of the officials informed him that the petitioner has not come to the office for the last 20 to 25 days. Be that as it may, from the statement of the CW-1, it is established that on the day of the execution of warrants of arrest, the petitioner was not present in his office. The proper course for the prosecution was to repeat the warrants of arrest for some other date or to have inquired from the Director, Food Department or the Secretary Food regarding whereabouts of the petitioner, but the needful was not done. Only one attempt to serve the warrants of arrest upon the petitioner was not enough. The record reflects that the respondent made no effort to ask from the petitioner's Head of the Department to confirm whether the petitioner was on his duty at the relevant time or was he absent? On the other hand, the petitioner stated that he was never absent from his duty, which statement has not been rebutted by the respondent through any source of evidence. There is nothing on the record to prove that the warrants of arrest were repeated, as such, it seems that no proper opportunity has been provided to the petitioner, enabling him to appear before the Court. Besides, it was the duty of the Court to strictly follow the procedure provided under section 87, Cr.P.C. while proceeding against a person and declaring him as absconder. Perusal of the record reveals that the important ingredients of section 87, Cr.P.C. have not been fulfilled for serving the warrants of arrest, which says "87(2)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or home stead in which such person ordinarily resides or to some conspicuous place of such town or village; and (c) a copy thereof shall be affixed to some conspicuous part of the court-house. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that requirements of this section have been complied with, and that the proclamation was published on such day". Admittedly, nothing in this behalf has been done, nor the trial Court has discussed about completion of the necessary formalities, which is contrary to the provision of section 87, Cr.P.C. By not doing so, declaring the petitioner as absconder by the trial Court is absolutely illegal, therefore, the impugned orders dated 14-5-2014, 27-5-2014 and 20-8-2014 passed by the trial Court are illegal, hence are not sustainable. Thus, in view of above, the appeal is allowed and all the aforesaid impugned orders are set aside. The appellant is already facing trial, he is directed to regularly appear before the trial Court on the given dates. HBT/75/Bal. Appeal allowed.