P L D 2006 Supreme Court 343 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Petitioner who was executive Engineer Irrigation Department at the relevant time was convicted under section 31-A of the NAB Ordinance in absentia vide judgment dated 6-12-2003 passed by the Judge Accountability Court No.II, Lahore and sentenced to three years imprisonment. This was challenged in Criminal Appeal No.160 of 2006 which was allowed through the impugned judgment dated 23-2-2006 passed by a learned Division Bench of the Lahore High Court and while setting aside the conviction and sentence, it directed the trial Court to proceed with the matter in the presence of the accused/appellant and decide the same afresh within a period of 90 days. Leave is sought against the said judgment insofar as it directed de novo trial.

2. Learned counsel for the petitioner contending that there was no wilful avoidance of service of court process submits that petitioner was in service of the Irrigation Department; that he was compulsorily retired on 31-7-2001; that he was offered a job in Germany and he left the country on 28-7-2002 from where he shifted to Canada where his wife and children also joined him. In his absence a reference was filed by the National Accountability Bureau before the Accountability Court No.I1 under sections 9 and 10 of the NAB Ordinance and he was issued process but since he was abroad, he could not be served 'and declaring the petitioner to be an absconder, the learned trial Court proceeded to convict him vide judgment dated 6-12-2003 and sentenced him to three years. This absence, according to learned counsel, was not wilful and if petitioner was aware or he had been issued the notice or warrants issued by the trial Court, he would have appeared. The learned High Court rightly set aside the impugned judgment but directing de novo trial, in the facts and circumstances of this case, according to him is an abuse of the process of the Court. He contended that section 31-A of the Accountability Ordinance can be invoked only if he had wilfully absconded to avoid the service of process issued by the Accountability Court and unless it is established, he cannot be proceeded against. He further submitted that proceedings under section 31-A of the NAB Ordinance can only be initiated if the main reference in which the court process was issued and avoided by an accused is pending. In the instant case, as the main reference had already been withdrawn, proceedings under the afore-referred provisions cannot be initiated. In support of the submissions made, learned counsel relied on Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889 and N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR (29) 1942 Madras 289.

3. Learned Deputy Prosecutor General submitted that the filing of main reference against the petitioner was proceeded by a thorough investigation in which petitioner fully participated but having come to know that the reference was being filed he left the country to avoid the process. Such a conduct, according to him, squarely falls within the mischief of section 31-A of the NAB Ordinance and even if the main reference has been withdrawn, the act of avoiding service of court process being a separate transaction/offence no exception can be taken to the trial under the afore-referred provision. He added that petitioner would have full opportunity to put up his defence and he can even file an application under section 265-K, Cr.P.C. which on Court query, he added, can be decided within fifteen days of the application filed.

4. We have considered the submissions made and have gone through the precedent case-law.

5. Admittedly, the main reference filed against the petitioner and others stands withdrawn. However, a bare reading of section 31-A of the NAB Ordinance indicates that it constitutes a distinct offence. It reads as under: "Absconding to avoid service of warrants.--Whoever absconds in order to avoid being served with any process issued by, any Court or 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."

6. The question whether the petitioner had abseconded, "in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance" would be a question of fact to , be decided by the trial Court in the light of the material brought before it. The reference by learned counsel for the petitioner to a judgment of the Karachi High Court, Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889 may not be relevant at this stage before this Court. It rather contains instructive guidelines for a trial Court seized of a case under section 31-A of the NAB Ordinance. In the said case, the learned Karachi High Court delved at length on the scope of the afore-referred section, the nature of evidence the prosecution has to produce to prove the avoidance of service of notice or of execution of warrants particularly when an accused allegedly leaves the country. But having observed all this, the Court directed the appellant to appear before the trial Court "as and when required by the said Courts for further proceedings in accordance with law". In the case of N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR (29) 1942 Madras 289, a trial Magistrate had issued warrants of attachment and proclamation on account of non-appearance of the accused and the same were set aside by the High Court but the main complaint pending before the said Magistrate was not interfered with. The High Court held as under:-- "It is obvious that when the Magistrate was informed that the petitioner had already left India, the orders for attachment and proclamation are without jurisdiction, unless he was satisfied that the accused was wilfully absconding, knowing of the warrant. He could not have known of the warrant which was issued after he had left India. When it was clear that the accused had left India in March, it could not possibly be said that he absconded or that he is concealing himself so that the warrant cannot be executed, which is a condition precedent under S.87, Criminal P.C. for the issue of a proclamation. It is also a condition precedent for the issue of attachment under S.88. It was at first said that the petitioner was still in India and that he is concealing himself somewhere in India. If this is so, the action of the Magistrate would be perfectly justified. I asked the complainant whether he would state so in an 'affidavit, and I gave him an opportunity of stating it in an affidavit. In the affidavit filed by him he has not contradicted the statement made on behalf of the petitioner that he left India in March. Under these circumstances, I hold that the orders of proclamation and attachment are without jurisdiction and as such they are set aside."

7. In the instant case as well, the learned High Court while setting aside the conviction under section 31-A of NAB Ordinance, left the matter to trial Court to decide it afresh. The precise question which the learned trial Court would be seized of now is whether the allegation of absconsion or avoidance of service of the process of the trial Court is borne out from the record or material placed before it or not. This Court would not pre-empt the function of the trial Court. In these B circumstances, the judgment of the learned High Court is unexceptionable. However, the petitioner would be within his right to move an application under section 265-K, Cr.P.C. and if such an application is moved, the learned trial Court shall decide the same on merit with independent application of mind within 15 days of its presentation as assured by learned Deputy Prosecutor General of NAB.

8. For what has been discussed above, there is no merit in this petition which is dismissed and leave refused. M.B.A./M-64/S?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.