MUHAMMAD ARIF SAIGOL Versus FEDERATION OF PAKISTAN

ALI NAWAZ CHOWHAN, J,‑‑ This appeal is directed against the judgment dated 4‑8‑2001 passed by Mr. M.A. Shahid Siddiqui, Judge, Accountability Court, Lahore, whereby the appellant Muhammad Arif Saigol has been convicted under section 31‑A of the NAB Ordinance, 1999 and sentenced to three years' imprisonment. His brother Abid Saigol was also accordingly punished. Whereas his another brother Asif Saigol was convicted under section 10 of the NAB Ordinance and sentenced to 7 years' imprisonment and to pay a fine of Rs.10(M) recoverable under section 386, Cr.P.C. This happened in Accountability Court Reference No. 18 of 2000.

2. In paragraph 4 of the judgment, it was said:

"Before the commencement of the trial attempt was made to procure the attendance of Arif Saigol and Abid Saigol, accused through non bailable warrants of arrest. On 13‑9‑2001 Bilal Ahmad, S.I., of Police Station Gulberg who was to execute the warrants of arrest appeared in person alongwith the statement of Muhammad Nawaz, Security Guard, Sehgal House, Lahore. He did not return the original warrant of arrest, therefore, fresh warrants of arrest of both the said accused were issued which were handed over to Bilal Ahmad, S.I. On 20‑9‑2000, Bilal Ahmad, S.I. stated on oath that he searched for both the accused but both were not found at their residence and in this manner his effort to cause the arrest of the accused failed. He testified situation, the Court was left with no option but to issue a proclamation under section 87, Cr.P.C requiring both the accused to appear on 19‑10‑2000. Again Bilal Ahmad, S.‑I, was entrusted with law. Bilal Ahmad, S.‑I. submitted his report Exh. CW/E and made a statement on 19‑10‑2000, which is to the following effect:

Two proclamations Exh.CW/C and Exh,CW/D issued against Muhammad Abid Saigol and Muhammad Arif Saigol accused under section 87, Cr.P.C were entrusted to me for execution. On 21‑9‑2000 I left the P.S. after making an entry in the Roznamcha at Serial No.27. I searched for both the accused but I failed to arrest them. My reports are Exh.CW/C‑1 and Exh.CW1/D‑1. I read out the proclamations publicly in front of the house of the accused and affixed a copy of each proclamation at the outer door of the house of the accused. I then came to this Court and affixed copy of each proclamation outside the Court premises. My report is Exh.CW/E which bears my signatures.

After having been satisfied that Muhammad Arif and Muhammad Abid Saigol, accused have concealed themselves to avoid legal proceedings/punishment, I decided to proceed against Muhammad Asif, accused only vide an order dated 17‑10‑2000."

While in the last paragraph of the judgment, it was said:

"Besides Muhammad Asif Saigol, accused, "the instant reference has also been filed against Muhammad Arif Saigol and Abid Saigol, accused. In view of my observation in para. 4 of this judgment, I am satisfied that both these accused have absconded in order to avoid the proceedings or punishment tinder this Ordinance. I, therefore, punish Muhammad Arif Saigol and Abid Saigol, accused also to imprisonment for three years each under section 31‑A of the NAB Ordinance, 1999. Perpetual warrant of Arrest my be issued against them."

Hence this appeal.

3. According to learned counsel for the appellant, Arif Saigol appellant had never absconded rather he had gone for Tabligh to some other country and when he returned, he learnt about the filing of the Reference against him. In this connection, a report Exh.CWA/1 submitted by an S.‑I. of Police Station, Gulberg was shown to the Court, which reads as under:

4. Learned counsel for the appellant stated that this report clearly shows that he was not available in Pakistan and, therefore, service could not be effected.

5. I According to learned counsel for the NAB his brother Asif Saigol was already an under trial and he was a co‑director with him as they belonged to a well‑off and educative family, it will be naive to think that appellant will not be in the knowledge of the proceedings before the NAB.

6. Arif Saigol appellant has now been apprehended. His brother has already been tried and the evidence which was recorded in his absence, is to be now re‑recorded which minimises all chances for any interference by him as almost the same evidence is to be produced. That he is in jail ever since 3‑4‑2003 while his trial has not so far commenced.

7. The trial Court merely depended on the reports of the police with respect to the question of service. One such report of 17‑9‑2000 referred to above indicates that he was not available having gone somewhere. Which means that there was a presumption attached to his abscondence.

8. We also find from the facts reflected in pa:agraph 4 of the judgment, that the process‑server may have searched for the appellant and affixed a proclamation outside his house and he was never sure whether the appellant was absconding. He was being presumptive and he depended on information provided to him: He did not come in the witness‑box for the testimony. Nor did the trial Court make him stand in the dock.

8‑A. Anyway, as all brothers knew each other and Arif Saigol was already under arrest, it will be equally naive to think that Arif Saigol remained totally oblivious of the trial of this case.

9. Chapter VI of the Cr.P.C deals with processes to compel appearance. This Chapter provides an exhaustive procedure because we cannot otherwise trust the factum of service at the hands of the police. The procedure prescribed under section 87 (Proclamation for person absconding) is to be adopted only after recording of evidence and this is followed by section 88 of the Cr.P.C. authorising attachment of his property. Whereas section 89 of the Cr.P.C. speaks of restoration of the attached property.

10. Whereas, in the case of attachment of property and proclamation, an exhaustive procedure has to be followed, how can the trial Courts while exercising jurisdiction under section 31‑A of the NAB Ordinance take the factum of service so lightly as even not to record the testimony of one entrusted to serve the process. Section 31‑A provides punishment in absentia and here the appellant has been given a full dose. We have also to see whether he should have been given an opportunity of explanation. And if the said explanation was persuasive, an opportunity of setting aside of his sentence or him getting bail until he was tried for the main offences as well as under section 31‑A of the NAB Ordinance in one go. We have also to keep in view the principle laid down in the case of Mehram Ali (PLD 1998 SC 1445).

11. These are some of the thoughts which arose to us while dictating the judgment but as these issues were not discussed before this Court, we leave a decision on these for some other time.

12. Anyway, as he has surrendered and he is incarcerated since April, 2003 this appears to be a sufficient punishment against any absence from the Court.

13. The appellant has yet to face the main trial and suffer the consequences in accordance with law for the main offence. For the present and under the circumstances while upholding the order under section 31‑A of the NAB Ordinance, 1999, we reduce his sentence to one already undergone. He is ordered to be released forthwith in this case. As the trial in this case has yet to commence, we direct him to deposit his passport with the Registrar of the Accountability Court before he is actually released.

14. With these observations, the appeal stands disposed of.

M.B.A./M‑2017/L Order accordingly.