PLJ 2011 Cr.C. (Lahore) 854
[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.
