2002 P Cr (PLP)

TARIQ PERVEZ KHAN, J.‑‑‑ This revision has been filed by Mst. Bibi Saliha and others because they are dissatisfied from the judgment of learned Accountability Court No. I, Peshawar where Noor‑ul -Haq was convicted on 27‑3‑2002 and property held by the present petitioners were ordered to be confiscated to the State as held by them as "Benamidars" while the real owner was Noor‑ul‑Haq.

2. We will not make any comments on the merits of the case as we are also seized of Criminal Appeal No‑7 of 2002 filed by Noor‑ul‑Haq but only to see whether under the circumstances of the case the petitioners are entitled to file the instant petition.

3. Brief facts of the case are that Ehtesab Reference No.l of 2001 was filed against Noor‑ul‑Haq who stood prosecution before Accountability Court No.1, Peshawar. The charge against him was that he has accumulated lot of wealth and property and that number of property held by the present petitioners were in fact "Benamidars" ownership. The five petitioners being closely related to Noor‑ul‑Haq were also arrayed during investigation. When challan was filed their names were, however, put in Column No.2 and the trial commenced. During the trial the trial Court did not issue them notice for their prosecution except that on the close of the prosecution evidence a show- cause notice was issued to them under section 17(c) of the NAB Ordinance to which they duly replied in writing and have put in their appearance through counsel.

4. We have heard the learned counsel for the petitioner and his contention is that as the petitioners were never arrayed as accused and because prosecution evidence was not recorded in their presence, they have been prejudiced and cannot be deprived of property owned by the in their rights. It is also submitted that it was incumbent upon the trial Court to have allowed the petitioners to adduce evidence in rebuttal of the evidence of the prosecution.

5. We have heard Malik Jarar Hussain appearing for the respondents on notice and we find that reply to the show‑cause notice was filed by the petitioners where they have tendered explanation as to how such property was acquired and held by them. Though in the first para of the reply it is stated that the whole prosecution evidence stand recorded at their back but at no stage of the proceedings or reply the trial Court was ever requested to re‑examine the prosecution witnesses or to re‑summon them.

6. Interestingly, on 21‑2‑2002 the petitioners were represented by Ghulam Ali their authorized counsel who specifically stated at the Bar and to this effect his statement was also recorded that the petitioners does not want to adduce evidence in defence.

7. Where a party has refused to take the advantage of producing defence witnesses and where a party has failed to have requested the trial Court in the first instance for re‑examination of the prosecution witnesses he shall not be entitled to agitate any of his such grievance through this petition. This revision petition is, therefore, dismissed. H.B.T./521/P Revision petition dismissed.