PLJ 2011 Cr.C. (Lahore) 854
[Rawalpindi Bench Rawalpindi]
[Rawalpindi Bench Rawalpindi]
Present:
Tariq Shamim and Malik Saeed Ejaz, JJ.
Mian
MUHAMMAD NAWAZ SHARIF--Appellant
versus
STATE--Respondent
Crl.
Appeal No. 2-E of 2009, heard on 26.6.2009.
Limitation--
----Question
of--Superior Courts in Pakistan are always slow in
dismissing petitions on question of limitation and are inclined to hear the
cases on merits in order to prevent grave miscarriage of justice. [P. 865] A
1978 SCMR 292, PLD 1973 SC 469 & 2001 SCMR 1405, ref.
National
Accountability Ordinance, 1999--
----Ss.
10 r/w 9(a)(v) & 32--Conviction and
sentence--Assailed--Allegation--Appellant had purchased a helicopter and used
and maintained the same for his election compaign--Costs and maintenance
expenses incurred by appellant were beyond his known sources of income--It was
a case of no evidence as not a single PW has stated before trial Court that any
money had been paid by appellant towards the wet-lease of the helicopter or its
operation or maintenance or in respect of sale price thereof--Helicopter had
been obtained on wet-lease for the election campaign of Pakistan Muslim League
and not for personal use of appellant--Prosecution did not produce any voucher
or any document for proving payment in connection with the
helicopter--Prosecution has miserably failed to establish any connection of
appellant with the helicopter as owner or otherwise and in the given background
the appellant could not have been charged for owning assets in terms of
transactions relating to the helicopter beyond his known sources of
income--Appellant possessed pecuniary resources disproportionate to his
declared sources of income is not based on any convincing material hence not
proved at the trial--Apart from committing a number of illegalities and
irregularities, the trial Court, contrary to all norms of justice, had allowed
the D.P.G. who was prosecuting the case against the appellant to re-examine PW
for no apparent legal or just cause--Only two persons who were privy to the
sources from which the payments were allegedly made for the wet-lease and
expenses and subsequently the purchase of the helicopter were Saif-ur-Rehman
and his brother however, at the conclusion of the trial, Saif-ur-Rehman, was acquitted
by the trial Court whereas his brother was neither cited as an accused nor as
witness in the case--Transactions relating to the helicopter revolved was not
produced by the prosecution at the trial--During investigation no effort was
made by the NAB to even associate that person with the investigation of the
case--The record is bereft of any evidence which could show that even an
attempt was made by the NAB to establish contact with that person--Trial Court
had committed serious error in permitting the prosecution to bring on record as
evidence a number of documents notwithstanding that these documents had neither
been proved through any scribe or executant nor produced from proper custody. [Pp. 867, 868 & 869] B, C, D, E
& H
National
Accountability Ordinance, 1999--
----S.
14--Constitution of Pakistan, 1973--Arts. 10 &
4--Presumption of guilt--Invoked against appellant--Another error committed by
the trial Court was that Section 14 of the National Accountability Bureau
Ordinance, 1999 which raised a presumption of guilt against the accused was
invoked against the appellant although the pre-conditions mentioned therein for
its applicability were not fulfilled--Trial Court had proceeded on the
presumption that in fact the Helicopter was purchased by the appellant on the
basis of a benami transaction however, there is no evidence on the record to
even remotely suggest that it was such a transaction--Having gone through the
entire evidence available on the record and having perused the judgment of the
trial Court--Appellant has been convicted by the trial Court on no evidence
direct or indirect; that the charge framed against the appellant was in fact
defective; at gross illegalities and irregularities were committed by the trial
Court during the trial proceedings; that the appellant was denied his
fundamental rights as enshrined in Art. 10 of the Constitution and that in fact
the conviction and sentence passed against the appellant was an outcome of an
unfair trial conducted in violation of due process of law guaranteed in Art. 4 of the Constitution. [P.
869] F & G
Khawaja
Haris Ahmad, Advocate assisted by M/s. Mustafa Ramday and Saad Rasool,
Advocates for Appellant.
M/s.
Abdul Baseer Qureshi, Addl. P.G. Accountability, Mirza Idrees Baig, Senior
Legal Consultant N.A.B., Mr. Waheed Iqbal and Mr. Afzal Hussain, Advocates for
Respondent.
Date
of hearing: 26.6.2009.
Judgment
Tariq
Shamim, J.--This judgment is in continuation of our short order dated 26.6.2009
whereby the appeal filed by Mian Muhammad Nawaz Sharif against his conviction
and sentence recorded by the learned Judge, Accountability Court, Attock Fort
vide judgment dated 22.7.2000 was accepted and he was acquitted of all the
charges. Our detailed findings are as under.
2. Through this appeal, Mian Muhammad Nawaz
Sharif (hereinafter to be referred as the "Appellant") has assailed
the judgment passed by the learned Judge Accountability Court Attock Fort dated
22.7.2000 whereby he had been convicted in Reference No. 2 of 2000, under
Section 10 read with Section 9(a)(v) of the National
Accountability Bureau Ordinance, 1999 (promulgated on 16.11.1999) and awarded
sentence of rigorous imprisonment for 14 years and a fine of Rs. 20,000,000/-. In default of payment of fine, to further imprisonment for a period
of three years. He was also disqualified for 21 years for seeking or
from being elected, chosen, appointed or nominated as member or representative
of any public office or any statutory or local authority of the Government of
Pakistan.
3. Briefly the allegation against the appellant
in the reference was that in October of 1993, the appellant had purchased a
Helicopter and used and maintained the same for his election campaign. The
costs and maintenance expenses incurred by the appellant were beyond his known
sources of income. It was also alleged that in fact the appellant had purchased
the Helicopter with the aid and active connivance of Saif-ur-Rehman (acquitted
accused) but had dishonestly shown the Helicopter to have been purchased by one
Abdul Rehman Bin Nasir Al Thani. The Reference was sent to the Accountability Court for trial on 28.2.2000
and the accused were summoned by the Court for 12.05.2000.
4. After supply of copies of the reference and
all other relevant documents, on 2.6.2000, the following charge was framed
against the appellant and his acquitted co-accused Saif-ur-Rehman:--
"Firstly: That
from August 1993 to June 1997 you Main Muhammad Nawaz Sharif accused possessed
pecuniary resources disproportionate to you known and declared sources of income
which you could not reasonable account for, as;
In
August, 1993, you got imported in Pakistan one MI-8 Helicopter
from Moscow bearing Russian
Registration No. RA-27092, on wet lease for 60 days @ $ 550 per flying hour;
In
October 1993, you purchase the said aircraft in consideration of US $ 8,00,000/- and
From
July 1993 to June 1997, you spent US $ 13,77,000/-
& Rs. 88,00,000/- on the wet lease, purchase, maintenance and operation of
the said aircraft.
And
you thereby committed an offence punishable u/S. 10 read with Sec. 9(a)(v) of the N.A.B. Ordinance, within the cognizance of this
Court.
Secondly: That
you Mian Muhammad Nawaz Sharif accused with the assistance, aid and abetment of
your co-accused Saif-ur-Rehman purchased the said Helicopter from M/s. Special
Cargo Airlines and dishonestly made it appear that the said aircraft was
purchased by Abdur Rehman Bin Nasir Al Thani and, you did so in order to
unlawfully secure for yourself the pecuniary advantage of not paying the taxes
payable on the ownership and use of the said aircraft and you thereby committed
an offence punishable u/S. 10 read with Section 9(a)(iv) of the N.A.B.
Ordinance, within the cognizance of this Court.
Thirdly: That
you Saif-ur-Rehman accused assisted, aided and abetted your co-accused Mian
Muhammad Nawaz Sharif in the commission of the offence stated in the above 2nd
Head of the Charge and you thereby committed an offence punishable u/S. 10(b)
read with Section 9 (a)(iv) of the N.A.B. Ordinance, within the cognizance of
this Court.
Fourthly: That
you Saif-ur-Rehman accused dishonestly manipulated the execution of the
contract of purchase of the aircraft, in a manner so that you co-accused
Muhammad Nawaz Sharif may acquire illegal pecuniary advantage and you thereby
committed an offence punishable u/S. 10 read with Section 9 (a)(iv) of the
N.A.B. Ordinance, within the cognizance of this Court."
The
appellant pleaded not guilty to the charge and claimed trial. In order to prove
its case the prosecution produced as many as 17 prosecution witnesses. Niaz
Hussain Siddiqui (PW-1) signed the contract (Ex. PA) of wet-lease as a lessee
on behalf of Orient Air on 9.8.1993, Col. (Rtd.) Muhammad Zarif (PW-2) was
approached by Saif-ur-Rehman for flying the Helicopter during the election campaign
and his services were hired verbally as no written agreement was signed in this
behalf, Dr. Sajid Latif Khan (PW-3) in whose presence a sale contract (Ex. PJ)
was made which was signed by Mr. Levedev on behalf of M/s Special Cargo Airline
and by Col. Zareef on behalf of Sheikh Abdul Rehman Bin Nasir Al Thani,
Anwar-ul-Haq, Additional Commissioner Income Tax, Range II, Company Zone, I,
Lahore (PW-4) produced Income Tax and Wealth Tax Returns of Mian Muhammad Nawaz
Sharif, appellant for different assessment years before the Court,
Ata-ur-Rehman, Senior Airworthiness Surveyor, Civil Aviation Authority, Karachi
(PW-5) joined the investigation of the case and produced certain documents
before the Investigating Officer who took the same into possession vide recovery
memo. Ex. P.BBB, Muhammad Ilyas Majeed (PW-6) issued a Certificate of
Registration (Ex. P.AAA) in the name of Mian Muhammad Nawaz Sharif regarding
the Helicopter, Syed Javed Iqbal (PW-7) produced certified copy of the judgment
(Ex. P.CCC) of Mr. Mumtaz Rasool Khan, Member Judicial Custom, Central Excise
and Sales Tax, Appellate Tribunal, Islamabad and certified copy of the order
dated 23.4.1994 (Ex. P.DDD) of Collector of Custom, Central Excise and Sales
Tax, Islamabad before the Investigating Officer who took the same into
possession vide memo. Ex. P.EEE, Kaleem-ur-Din, Qureshi, Stenographer, National
Accountability Bureau, Islamabad (PW-8) was working as Stenographer in the
office of National Accountability Bureau, Islamabad and on 14.1.2000 in his
presence certified copies of Income and Wealth Tax Returns of the appellant
were produced by Anwar-ul-Haq, Air Commodore Hashim Yamin, Chief Pilot
Investigator, Safety Investigating Board, C.A.A., Karachi (PW-9) produced the
interim report of MI-8 Helicopter (EX. P.GGG) as well as the final report (EX.
P.HHH) regarding accident of the said aircraft; Sartaj Aziz (PW-10) had signed
the letter (Ex. P.YY) in his capacity as Secretary General of the Pakistan
Muslim League, Nawab Hussain, Stenographer, National Accountability Bureau,
Islamabad (PW-11) joined the investigation on 15.1.2000 and prepared the list
of the documents (Ex. PH) produced by Col. Niaz Hussain Siddiquie before Mr.
Khaliq-uz-Zaman, the Investigating Officer, Gulzar Muhammad Stenographer (PW-12)
in whose office, on 30.11.1999, Mr. Javed Iqbal produced several documents
before the Investigating Officer who took the same into possession vide
recovery memo. Ex. P.EEE, Hamid Mukhtar, U.D.C., A.F.U., Custom Islamabad
(PW-13) in whose presence Mr. Wazir Zulfiqar, Principal Appraiser, A.F.U.
Customs, produced documents before the Investigating Officer who took the same
into possession vide memo. Ex. P.JJJ, Muhammad Masood Iqbal, Inspector, F.I.A.,
Commercial Bank Circle, Islamabad (PW-14) was the witness
of recovery memo. Ex. P.BBB and Ex. PL; Halim Ahmad Siddique (PW-15) delivered
a envelope in the Headquarter of C.A.A. at Karachi Airport and received the
Registration Certificate (Ex. P.AAA), Wazir Zulfiqar Ali (PW-16) answered some
questions put to him by the Court and Khaliq-uz-Zaman, Assistant Director,
F.I.A., Assets Branch, Karachi (PW-17) was entrusted with the investigation of
the Reference on 23.11.1999 by the Deputy Chairman, National Accountability
Bureau. He secured the record relating to the Registration of MI-8 Helicopter
from Air worthiness directorate of C.A.A., Karachi and recorded the statements
of Engineer Ata-ur-Rehman, Muhammad Arshad, Masood Iqbal, Air Commodore (Rtd.)
Mr. Ilyas Majeed, Ex-Director and Chief of Airworthiness, C.A.A., Engineer
Ghulam Murtaza, Controller Airworthiness Aero Space, Air Commodore Hashim
Yamin, Chief Pilot Investigator, C.A.A., Karachi and Mr. Haleem Ahmad Siddiqui,
Ex-M.N.A. and after observing due formalities and completion of investigation
he submitted the Reference in the Court through National Accountability Bureau
on 28.2.2000.
5. The statements of the appellant and his
co-accused were recorded under Section 342 Cr.P.C. In response to the question
"Why this case against you and why the PWs have deposed against you?"
Mian Muhammad Nawaz Sharif, appellant, replied as under:--
"Because they were under the instructions of the G.H.Q.
to give evidence against me. There is no allegation against me regarding
kickbacks, commission or embezzlement of Government money. I do not known why this case has been made against me. This Ordinance
(N.A.B.) has been made by a single person who wants to destroy me and this
country."
The
appellant neither opted to appear as his own witness in disproof of the
allegations levelled against him nor did he produce any evidence in defence.
6. At the conclusion of the trial, the
co-accused of the appellant was acquitted whereas the appellant was convicted
and sentenced as stated above. The appellant has challenged his conviction and
sentence through this appeal.
7. While arguing on the point of limitation, as
the appeal was barred by 8 years and 260 days, the learned counsel for the
appellant contended that since the period of limitation provided for filing an
appeal before this Court under the National Accountability Ordinance, 1999 was
10 days, which was different from the period of limitation provided for filing
of appeals in criminal cases under the Limitation Act, 1908 as such, Section 5
of the Limitation Act was not applicable, hence the application for condoning
the delay was filed under the enabling provisions of law including Section
561-A of the Code of Criminal Procedure, 1908 and Article 203 of the
Constitution of the Islamic Republic of Pakistan, 1973 on the grounds that upon
imposition of Military Rule by General Pervez Musharaf after over throwing the
democratically elected Government of which the appellant was the Prime Minister
and his refusal to recognize the legality of the new dispensation and various
laws promulgated pursuant thereto and certain allied events, it was natural for
the appellant to have harboured skepticism about the then state of judicial
independence. He further maintained that since the trial was a mockery as it
was conducted in violation of Articles 4, 9, 10 and 25 of the Constitution of
the Islamic Republic of Pakistan, 1973, therefore, the question of limitation
would not arise which in any case was liable to be condoned in the given
circumstances. During the period Mian Muhammad Nawaz Sharif was in Pakistan after his conviction by
the trial Court he was pre-occupied in pursuing the appeal for his acquittal as
well as the State appeal filed for enhancement of sentence from life
imprisonment to death. Subsequently, the appellant was forced to leave the
country and his attempts to return were thwarted by the administration despite
observation made by the honourable Supreme Court of Pakistan in the cases of
Pakistan Muslim League (N) v. Federation of Pakistan and others (PLD 2007 SC
642) and Mian Muhammad Shabaz Sharif v. Federation of Pakistan (PLD 2004 SC
583). The appellant returned to Pakistan on 27.11.2007, however,
he consciously restrained from assailing the impugned judgment till the
restoration of the judiciary to its pre November
3, 2007
position. As being head of his political party he had taken a principle stand
to desist from taking any legal matter to the Superior Courts till the
restoration of the judiciary and insofar as the period after 16th of March,
2007 till the filing of the appeal was concerned, the appellant had applied for
certified copies of certain orders which were not provided till the filing of
the appeal.
8. The learned counsel for the appellant while
arguing on merits stated that the conduct of proceedings against the appellant
in the Attock Fort was not fair and in the course of the proceedings, the
constitutional guarantees were denied to the appellant and as such, the trial
stood vitiated. It was also argued that the trial was conducted with unholy
haste without providing the appellant and his co-accused the right to have
proper access to their lawyers and without affording an opportunity to the
appellant to discuss the case and impart instructions to them. It was
maintained that the National Accountability Ordinance was a newly introduced
law which was not free from legal technicalities, complications and ambiguities
and the appellant had himself challenged the Ordinance before the Honourable
Supreme Court through C.P. No. 27 of 2000 and therefore, it required specialized
expertise and extensive knowledge of law particularly as the arrangement under
which the Helicopter was brought inside the country and the transactions in
connection therewith were of highly technical nature. However by denying access
to highly skilled professional lawyers, the Court had perpetrated injustice and
consequently, the conviction and sentence passed by the Court were a nullity in
the eye of law. It was urged on behalf of the appellant that the impugned
judgment was based on no evidence as not a single witness had stated before the
trial Court that any money was paid by the appellant either for the wet lease
of the Helicopter or its operation and maintenance and in fact the only witness
who had said something about the payment in respect of wet lease etc. was
Surtaj Aziz (PW-10) who unequivocally stated that the Helicopter was
requisitioned and obtained for the election campaign of the Pakistan Muslim
League and the payments were made from the funds of the party. It was also
urged that the only witness who was privy to the facts associated with the
payments with respect to transactions relating to the Helicopter was
Saif-ur-Rehman who had stated before the trial Court that no payments were ever
made by the appellant, thus reflecting that there was no evidence on the record
to prove that the appellant had spent any money towards the wet lease,
maintenance, operation or for that matter the purchase of the Helicopter and as
such, the charge of possessing or owning assets beyond the known sources of income
could not be established. The learned counsel for the appellant further
contended that the most material witness was Sheikh Abdul Rehman Bin Nasir Al
Thani in whose name the sale-deed in respect of the Helicopter had been
executed, but he was not produced by the prosecution at the trial. The trial
Court had further committed grave jurisdictional error by invoking the
provisions of Section 14 of the National Accountability Ordinance, 1999, for
raising a presumption of guilt against the appellant without taking into
consideration that the pre-conditions stipulated for its applicability had not
been fulfilled.
9. On the other hand, the learned Additional
Prosecutor General Accountability contended that the delay in filing the appeal
against conviction was contumacious and could not be condoned by any stretch of
imagination particularly as the Ordinance had provided a specific time frame
for filing an appeal. Even if the time spent by Mian Muhammad Nawaz Sharif
abroad is excluded, he had no legal justification for not filing an appeal
after his return to Pakistan on 27.11.2007. Further,
the appellant had failed to provide any plausible explanation or cause for not
preferring an appeal after restoration of judiciary on 16th of March, 2009 till
the filing of appeal on 23rd of April, 2009. On merits the learned counsel
contended that the evidence collected by the National Accountability Bureau in
the course of investigation was sufficient to connect the appellant with the
commission of crime committed by him and that the charge as framed by the Court
was fully proved through evidence adduced by the prosecution witnesses at the
trial which was sufficient by all standards to connect the appellant with the
crime. He also contended that in fact the transaction relating to the purchase
of the Helicopter was a benami transaction as Sheikh Abdul Rehman Bin Nasir Al
Thani was a fictitious person and since he was non-existent, he was, therefore,
neither cited as a witness nor produced at the trial and that the charge against
the Appellant had been fully proved beyond a shadow of doubt through oral as
well as documentary evidence collected by National Accountability Bureau in the
course of investigation. It was lastly stated by the learned Additional
Prosecutor General Accountability that the sentence passed by the trial Court
was in consonance with law and based on proper appraisal of evidence, hence, no
interference was called for by this Court.
10. We have heard Khawaja Haris Ahmad, Advocate,
the learned counsel for the appellant at length as well as the learned
Additional Prosecutor General Accountability and have gone through the record
of the case with their able assistance.
11.
In the light of the arguments advanced by the learned counsel for the appellant
we can divide the delay in filing of the appeal broadly into three parts i.e.
the first pertaining to the period from 22.7.2000 till the departure of the
appellant from Pakistan, the second part relating to the period during which
the appellant was forced to remain outside Pakistan and the third in respect of
the period commencing from his return to Pakistan on 27th of November, 2007
till the filing of the appeal on 23rd of April, 2009.
12. Insofar as the first part is concerned, as
has rightly been pointed out by the learned counsel, the appellant remained
pre-occupied in pursuing appeal against his conviction and sentence recorded by
the Anti-Terrorism Court at Karachi as well as the appeal
filed by the State for enhancement of his sentence from imprisonment for life to
that of death. Since it was a more pressing matter as it involved the question
of life and death of the appellant, all his energy and concentration was
focused in contesting the appeals referred to above. Soon thereafter the
appellant got involved in more serious matters which ultimately culminated in
his departure from Pakistan for the above referred
period, therefore, in our view this part of delay has been adequately explained
hence, non-filing of appeal by the appellant during this period is justified.
13. Now adverting to the period when the
appellant was absent from the country, it is a matter of record that Mian
Muhammad Nawaz Sharif had left the country on 10th of December, 2000 and had
returned after about seven years on 27th of November, 2007. During this period
the appellant admittedly did not file any appeal. However, it has been noticed
that attempts were made by the appellant and his brother to return to Pakistan but the same were
frustrated by the then administration. In the case of Pakistan Muslim League
(N) v. Federation of Pakistan and others (PLD 2007 SC 642) it was observed by
the honourable Supreme Court of Pakistan that the appellant was entitled to
enter and remain in Pakistan and no hurdle or obstruction was to be created by
any authority to prevent his return and pursuant to the said direction the
appellant embarked on a return journey to Pakistan, which, as stated earlier,
was thwarted by the administration. A contempt of Court application was also
filed before the honourable Supreme Court of Pakistan for violation of the said
order. In the above discussed background, when the appellant was restrained
from returning to Pakistan, the question of his
filing an appeal against his conviction does not arise. Even otherwise, the
delay in filing of the appeal during this period has not been seriously
challenged by the learned Additional Prosecutor General Accountability who has
conceded that in the given circumstances the appellant could not have preferred
an appeal against his conviction and sentence passed by the trial Court.
14. Now coming to the last phase i.e. after
returning to Pakistan on 27th of November, 2007 till the filing of the instant
appeal on 23rd of April, 2009 the stand taken by the appellant was that after
the military coup on 12th of October, 1999 pursuant to which General Pervez
Musharaf had imposed himself as Chief Executive of the country and had required
the Honourable Judges of the Superior Courts to take oath under the new
dispensation, five Honourable Judges of the Supreme Court of Pakistan refused
to accede to the said requirement and consequently, they ceased to hold their
judicial offices. In the said circumstances and certain other allied events it
was natural for the appellant to have entertained genuine apprehension about
the state of judicial independence in the country. On his return to Pakistan the country was in the
grip of judicial crises as 63 honourable Judges of the Superior Courts had been
restrained from performing and continuing their judicial functions in the garb
of imposition of Emergency on 3rd of November, 2007. In view of the previous
events as well as the judicial crises referred to above, the appellant and his
party members took an oath for restoration of the judiciary to its pre November
3, 2007 position and pursuant thereto the appellant had declared that he would
not appear before the Judges of the Superior Courts prior to reinstatement of
all the Hon'ble Judges who had been illegally deposed on November 3, 2007. We
are convinced that this was a principled stand taken by the appellant as not
only did he abstain from filing an appeal against his conviction and sentence
in the instant case but he also did not contest the election petition preferred
against the acceptance of his nomination papers. Legal proceedings in
furtherance thereof were also not challenged or contested by the appellant.
However, after the restoration of the judiciary on 16th of March 2009 the
appellant filed review petitions Bearing Nos. 45 and 46 of 2009 in Civil
Petitions Nos. 778 and 779 of 2008 titled `Federation of Pakistan v. Mian
Muhammad Nawaz Sharif and others' and on the question as to whether the
appellant's non-appearance could be condoned for reasons given by him in the
review petitions the honourable Supreme Court of Pakistan observed:--
"The
restoration of the Hon'ble Chief Justice of Pakistan and other Judges who were
deposed on the imposition of "State of Emergency" and the immediate
appearance of the petitioners by way of filing these review petitions indicate
that the stance taken was based on a certain moral ground which stood
vindicated. The same cannot be dubbed as either contumacious or reflective of
acquiescence to warrant the impugned findings."
Thus,
the principled stand taken by the appellant referred to above was also accepted
by the honourable Supreme Court of Pakistan while accepting the explanation
extended by the appellant for his non-appearance before the Superior Courts
after his return to Pakistan from exile.
15. It was vehemently argued by the learned
Additional Prosecutor General that the appellant had no plausible reason for
not filing an appeal immediately after 16th of March, 2009 i.e. from the date
of restoration of the judiciary. We are afraid the argument has no force as
after having gone through the record of the case we are convinced that the
delay in non-filing of the appeal is attributable to non-supply of copy of the
order dated 2.6.2000 recorded separately by the trial Court on the application
filed by the appellant under Article 10 of the Constitution. Be that as it may,
mere delay of a few days in filing of the appeal would not deter this Court
from condoning the delay and hearing the appeal on merits.
16. For the above discussed reasons we are
inclined to accept the plea advanced by the appellant for non-filing of the
appeal soon after returning to Pakistan. It is also worth noting that the
Superior Courts in Pakistan are always slow in
dismissing petitions on question of limitation and are inclined to hear the
cases on merits in order to prevent grave miscarriage of justice. In the case of Zia-ul-Rehman v. The State (2001 SCMR 1405)
while condoning delay of 266 days the honourable Supreme Court of Pakistan
observed as under:-
"No
doubt, the petition which was filed by the appellant from jail has been shown
to be barred by 266 days, but in view of the circumstances of the case, we
condone the delay as dismissal of the appeal for such technical reasons will
cause grave injustice to the appellant under the circumstances of the present
case."
In a similar situation in the case of Abdur Rehman v. The State (1978 SCMR
292) the honorable Supreme Court of Pakistan condoned the delay of 1119 days in
filing of a review petition. While holding that the Supreme Court generally
condones delay in criminal cases, the honourable Supreme Court of Pakistan in
the case of Muhammad Sadiq v. Muhammad Sarwar (PLD 1973 SC 469) observed as
under:--
"Once
the Court has come to the conclusion that injustice has been done and has
granted leave to appeal, there is no reason as to why an appeal by special
leave should be treated differently to an appeal as of right. Both appeals
should stand on the same footing and should be determined according to the same
principles of administration of justice by the Court. Now that the Supreme
Court is no longer merely exercising a prerogative jurisdiction but is
exercising powers conferred by the Constitution, there appears to be no valid
reasons for this Court to be inhibited by the limitations which the Judicial
Committee of the Privy Council had imposed upon itself. There is no reason to
go back again to the rule in Dillet's case and narrow down the scope and
content of its own constitutional jurisdiction. The Supreme Court should have
the fullest power to do full justice without fettering itself with any
self-imposed restrictions which are no longer necessary in the context of the
changed circumstances in which it does now function."
17. Now coming to the merits of the case, at the
very outset we have noticed that the appellant was denied a fair trial being in
a breach of fundamental rights guaranteed by the Constitution. It is a matter
of record that the appellant and his acquitted co-accused Saif-ur-Rehman were
confined in separate cells in Attock Fort and were being produced before Courts
from time to time. Since the appellant and Saif-ur-Rehman were jointly charged,
one as principal offender and the other as abettor, an application under
Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 was
moved on behalf of the accused requesting for three weeks' time to consult and
brief their counsel to prepare their defence. However, to our amazement, the
order rejecting the said application is not available on the record although
reference has been made in the said regard by the trial Judge in its order
dated 2.6.2000. The relevant portion thereof is reproduced hereunder:
"Vide
order of even date recorded separately, the portion
under Article 10 of the Constitution has been rejected while on the other
application for providing better copies, order has been recorded on the said
application that better and legible copies of the requisite documents be
provided to the accused today."
We
are at a loss to understand as to what has happened to the said order as apparently
it has vanished into thin air.
18. After having rejected the request of the
appellant for providing reasonable time to his counsel for preparation of the
case, the trial Court proceeded to allow 7 days time from 2.6.2000 to 9.6.2000
for preparation of the reference which was spread over more than 900 pages.
This, by no stretch of imagination can be termed as adequate time for
preparation of a voluminous case involving hyper technicalities. Besides, the
trial Judge proceeded to record the prosecution evidence on 9.6.2000 and
continued therewith on day to day basis and after examining 17 prosecution
witnesses, admitting numerous documents in evidence and recording the
statements of the appellant and his co-accused without oath under Section 342
Cr.P.C., proceeded to convict the appellant vide judgment dated 22.7.2000.
During the period from 9th of June, 2000 till 27th of July, 2000 the Appellant
had attended a number of hearings of the hijacking case pending before the
Sindh High Court at Karachi. It is also worth
mentioning here that the trial Judge on account of non-association of the
appellant with the trial proceedings had proceeded to hear ex parte arguments
in the case on 19.7.2000. Thus, it is evident that the trial of the case was
conducted by the Court in a slipshod manner in undue haste and that too in
disregard of the due process of law rendering the trial a nullity in the eyes
of the law. In the case of New Jubilee Insurance Company Ltd. Karachi v.
National Bank of Pakistan, Karachi (PLD 1999 SC 1126) in the context of the
doctrine of "due process of law" the honourable Supreme Court of
Pakistan held as under:--
"It
may be observed that there are certain basic norms of justice. One of the
cardinal principles of above basis norms is that one cannot be a judge in his
own cause. The breach of the above cardinal principle of jurisprudence will in
fact be violative of the right of "access to justice to all" which is
a well-recognized inviolable right enshrined in Article 4 of the Constitution.
This right is equally founded in the doctrine of "due process of
law". The right of access to justice includes the right to be treated
according to law, the right to have a fair and proper trial and the right to
have an impartial Court or Tribunal. The term "due process of law"
can be summarized as follows as held by this Court in the case of Aftab Shahban
Mirani v. President of Pakistan (1998 SCMR 1863):-
(1) A person shall have notice of
proceedings which affect his rights.
(2) He shall be given reasonable opportunity
to defend.
(3) That the Tribunal or Court before which
his rights are adjudicated is so constituted as to give reasonable assurance of
his honestly and impartiality, and
(4) That it is a Court of competent
jurisdiction. Above are the basic requirements of the doctrine "due
process of law" which is enshrined, inter alia, in Article 4 of the
Constitution. It is intrinsically linked with the right to have access to
justice which is fundamental right. This right, inter alia, includes the right
to have a fair and proper trial and a right to have an impartial Court or
Tribunal. A person cannot be said to have been given a fair and proper trial
unless he is provided a reasonable opportunity to defend the allegation made
against him."
19. Insofar as the factual aspects of the case
are concerned, we are
of the view that it is a case of no evidence as not a single
prosecution witness has stated before the trial Court that any money had been
paid by the appellant towards the west-lease of the Helicopter or its operation
or maintenance or in respect of sale price thereof. There is no evidence on the
record that the appellant had withdrawn any money from his accounts or the
accounts of his dependents or associates for making payment towards the
wet-lease etc. On the contrary, it is well established that the Helicopter had
been obtained on wet-lease for the election campaign of the Pakistan Muslim
League and not for personal use of the appellant. Reference is made to the
statement made by Sartaj Aziz who while appearing as PW-10 categorically stated
that the Helicopter was obtained for the election campaign of Pakistan Muslim
League and the payments for the Helicopter were also made by the party. We have
also noted with surprise that not a single witness has been produced by the
prosecution to show that the appellant had made any payment with respect to any
transaction relating to the Helicopter. There is not an iota of evidence on the
record to establish payment of any amount by the appellant to either the
initial owner of the Helicopter or for that matter Sheikh Abdul Rehman Bin
Nasir Al Thani. The prosecution did not produce at the trial any voucher or any
document for proving payment in connection with the said Helicopter. It is,
thus, evident that the prosecution has miserably failed to establish any
connection of the appellant with the Helicopter as owner or otherwise and in
the given background the appellant could not have been charged for owning
assets in terms of transaction relating to the said Helicopter beyond his known
sources of income. Thus, the finding of the trial Court that the appellant
possessed pecuniary resources disproportionate to his declared sources of
income is not based on any convincing material hence not proved at the trial.
20. It is also worth pointing out at this
juncture that apart from committing a number of illegalities and
irregularities, the trial Court, contrary to all norms of justice, had allowed
the Deputy Prosecutor General who was prosecuting the case against the
appellant to re-examine Sartaj Aziz (PW-10) for no apparent legal or just
cause. Apart therefrom the only two persons who were privy to the sources from
which the payments were allegedly made for the wet-lease and expenses and
subsequently the purchase of the Helicopter were Saif-ur-Rehman and his brother
Mujeeb-ur-Rehman however, at the conclusion of the trial, Saif-ur-Rehman, was
acquitted by the trial Court whereas his brother Mujeeb-ur-Rehman was neither
cited as an accused nor as witness in the case. Sheikh Abdul Rehman Bin Nasir
Al Thani around whom the transactions relating to the Helicopter revolved was
not produced by the prosecution at the trial. In fact during investigation no
effort was made by the National Accountability Bureau to even associate this person with the
investigation of the case. The record is bereft of any evidence which could
show that even an attempt was made by the National Accountability Bureau to
establish contact with this person. It has also been observed by us that the
trial Court had committed serious error in permitting the prosecution to bring
on record as evidence a number of documents notwithstanding that these
documents had neither been proved through any scribe or executant nor produced
from proper custody. A similar error was committed by the trial Court in
placing implicit reliance on the contents of the application filed by the
appellant for issuance of certificate of registration (Ex. PVV), as owner of
the Helicopter and rejecting the contents of most relevant document (Ex. PZZ)
on the basis of which the appellant had claimed the ownership of the Helicopter
although the said document had been produced by the prosecution itself in
support of its case and had got it exhibited as such. Another error committed
by the trial Court was that Section 14 of the National Accountability Bureau
Ordinance, 1999 which raised a presumption of guilt against the accused was
invoked against the appellant although the pre-conditions mentioned therein for
its applicability were not fulfilled. Apparently the trial Court had proceeded
on the presumption that in fact the Helicopter was purchased by the appellant
on the basis of a benami transaction in the name of Sheikh Abdul Rehman Bin
Nasir Al Thani, however, there is no evidence on the record to even remotely
suggest that it was such a transaction.
21. Having gone through the entire evidence
available on the record and having perused the judgment of the trial Court we
have no hesitation in holding that the appellant has been convicted by the
trial Court on no evidence direct or indirect; that the charge framed against
the appellant was in fact defective; that gross illegalities and irregularities
were committed by the trial Court during the trial proceedings; that the
appellant was denied his fundamental rights as enshrined in Article 10 of the
Constitution of the Islamic Republic of Pakistan, 1973 and that in fact the
conviction and sentence passed against the appellant was an outcome of an
unfair trial conducted in violation of due process of law guaranteed in Article
4 of the Constitution of the Islamic Republic of Pakistan, 1973.
22. For what has been discussed above, after
having condoned the delay in filing of the appeal, for reasons recorded
hereinabove we Accept the appeal and acquit Mian
Muhammad Nawaz Sharif, appellant, of all the charges.
(A.S.) Appeal accepted.
