P L D 2002 Lahore 74 (PLP)

Raja Muhammad Anwar for Appellant. M. Asad Manzoor Butt for the State. Begum Nusrat Bhutto was tried in absentia by the Accountability Court, Lahore in Reference No.16 of 2000 (E.R.No.28 of 1998). She was convicted for an offence under section 31‑A of the NAB Ordinance, 1999 and sentenced to undergo R.I. for two years. Her property was also ordered to be attached, subject to furnishing of list of her property by the Prosecutor.

2. We have heard the learned counsel for the appellant as well as Mr. M. Asad Manzoor Butt, Advocate/Additional Deputy Prosecutor General, NAB, Punjab on the two preliminary questions regarding maintainability of his appeal. The first question is whether a third person can file an appeal on behalf of the convict if the convict is almost senseless or of unsound mind and second, whether an absconder can file an appeal without surrendering before the Court or the Jail Authorities personally.

3. The appellant's learned counsel strenuously urged that the appellant is seriously ill since before 6‑11‑2000 and is almost senseless; that she has lost her memory and cannot understand anything; that in view of the appellant's state of health her daughter Mst. Sanam Bhutto has authorised him to file the present appeal; that any procedure which is not forbidden by law can be adopted to secure the interests of justice. In this connection he relies on the following judgments:‑‑‑ (i) Nur Elahi v. The State PLD 1966 SC 708. (ii) Mohtarma Benazir Bhutto, M.N.A., leader of the Oppositions Bilawal House, Karachi v. The State through Chief Ehtesab Commissioner 1999 SCMR 1619. (iii) Mohtarma Benazir Bhutto and another y. The State 1999 SCMR 2726. He further submits that the appellant had left the country sometime during the year 1996; that she was not residing at her Karachi residence and the Court had been wrongly sending process at the said address; that the appellant was never served with any summons and was wrongly tried in absentia; that at present she is residing at Dubai and has filed the appeal through her daughter. According to the learned counsel, the appeal merits admission as of right under section 32 of the NAB Ordinance. He adds that the question regarding maintainability of the appeal may be decided at the time of final hearing of the appeal.

4. On the other hand, the learned Additional Deputy Prosecutor General, NAB, Punjab urged that in view of the express provisions of section 32 of the Ordinance only a convicted person who feels aggrieved of the judgment can prefer an appeal; that this appeal can be dismissed even at this stage on the ground that it is not maintainable; that the appellant is a fugitive from the law and cannot invoke the provisions of appeal without first surrendering before the Court or the Jail Authorities.

5. The question of maintainability of the appeal has to be decided first before its formal admission and decision on merits. By virtue of the provisions of section 32 of the Ordinance an appeal can be filed by a convicted person who is aggrieved by the final judgment or the Prosecutor General Accountability if so directed by the NAB. The convict in the present case is Begum Nusrat Bhutto but the power of attorney/authority letter in favour of the appellant's learned counsel has been executed by Mst. Sanam Bhutto, daughter of the convict. She stated therein that her mother was seriously ill and not capable of giving instructions to any counsel. The medical certificate regarding ailment of the convict shows that she is suffering from severe chronic progressive senile dementia and has difficulties in reading, writing and comprehension. Even if it is so, no other person can file an appeal on behalf of the convict and execute power of attorney in favour of an Advocate. It is settled principle of law that if law provides a thing to be done in a particular manner it ought to be done in that manner or not at all. The appellant's learned counsel has laid emphasis on the principle that any procedure which is not prohibited under the law is deemed to be permitted, therefore, even a third person can file an appeal. The question as to who can file an appeal primarily falls within the realm of substantive and not the procedural law. Therefore, the principle that a procedure not expressly prohibited is deemed to be allowed cannot be pressed into service to clothe a third person with a right to file an appeal on behalf of the convict. For the above reasons, the judgment in the case of Nur Elahi (relied upon by the appellant's learned counsel) is of no avail to him.

6. There is yet another difficulty, in entertaining the present appeal. Under the law a convict is bound to surrender before the Court to undergo the sentence of imprisonment passed against him/her. The convict who becomes a fugitive from the law is not entitled to invoke the provisions of section 32 of the Ordinance to challenge his conviction. This Court had expressed this view in the case of Haq Nawaz v. The State 1999 PCr.LJ 1381 which was upheld by the Hon'ble Supreme Court of Pakistan in the case reported as Haq Nawaz and others v. The State and others 2000 SCMR

785. The appellant's learned counsel has heavily relied on the judgment in the case of Mohtarma Benazir Bhutto (supra) to urge that a convict can file an appeal even without surrendering before the Court. This case is distinguishable because the appellant in the said case remained absent during the course of trial with the leave of the Court and for that reason her appeal was entertained in her absence on the consideration that the appeal was a continuation of trial. In the case in hand no such permission was granted to the convict by the trial Court.

7. The appellant was convicted on 18‑11‑2000. An application for a certified copy of the judgment was filed on 20‑11‑2000 which was delivered on the same day and the appeal was filed on 27‑11‑2000. The office raised an objection that the power of attorney was not attached with the memo. of appeal and returned it to the appellant's learned counsel. The authority letter from Mst. Sanam Bhutto in favour of the appellant's learned counsel was attested by the High Commissioner for Pakistan at London on 27‑11‑2000 and was placed on record on 3-3‑2001 when the appeal was refiled after removing the objection. By that time, the appeal had become time‑barred. The appellant's learned counsel strenuously urged that the appellant being seriously ill was not in a position to understand anything and did not even know that she had been convicted and had to surrender before the Court. Originally when the appeal was filed on 27‑11‑2000 no medical certificate regarding the appellant's alleged ailment was placed on the record. Her medical certificate dated 11‑12‑2000 also appears to have been placed on the record subsequently, presumably on 3‑3‑2001 when the appeal was re‑filed after removing the office objection. Be that as it may, if the appellant is really not possessed of her senses and is not conscious of her rights and obligations under the law then she may avail of the remedy of an appeal as and when she regains normalcy, after placing on record reliable medical evidence to establish her above‑noted "continuous" ailment. The question whether she will deserve condonation of delay can be decided in the light of the quality of the material/medical evidence brought on record.

8. For the foregoing discussion, this appeal cannot be entertained and, is, therefore, dismissed leaving it open to the convict to file an appeal at the appropriate time, in accordance with the law and the observations made above. Q.M.H./M.A.K./A‑60/L Order accordingly.