Conviction in absentia law declared void

ISLAMABAD: The Supreme Court has held that the NRO opened the door of parliament for persons convicted in absentia, contrary to the constitutional provisions and case laws. The detailed judgment of the 17-member full court said, therefore, no other forum can declare conviction in absentia as void, except a judicial forum and that too by filing an appeal. In the NAB list of persons convicted in absentia given to the Supreme Court figure Interior Minister Rehman Malik, Begum Nusrat Bhutto, MB Abbasi and Sardar Mansoor Leghari, Inamur Rehman, Adnan Imtiaz, Mian M Rashid, Raheel J Qureshi, Sadiq Ali Khan and Ibrar Ahmed.

The verdict said that in instant case, by amending a law, conviction in absentia was declared void, which was unconstitutional and illegal, adding that it was also against the National Accountability Ordinance (NAO), which provides remedy to such a convict to file appeal.

It said that the disqualification for a person to become an MP and for an MP under Article 63(1)(p) was removed for such a convict with this stigma so that he is qualified to enter into parliament, contrary to the constitutional provisions as well as the law laid down in the case of Abdul Baqi vs Muhammad Akram.

The judgment said that the question as to whether a person has been rightly convicted in absentia or otherwise is to be decided by the court of law and its powers could not be substituted or conferred according to the NRO on the legislature to declare that an order or judgment passed by a court of competent jurisdiction in absentia is void ab initio and shall not be acted upon.

According to the decision, firstly, Section 6 of the NRO is general in its nature and benefit of the same can be derived by a candidate for becoming MP, or for an MP, or by other ordinary person; secondly, it has not been made applicable for a specific period. Therefore, if an amended provision continued to remain intact for all the times to come, conviction in absentia under Section 31A of the NAO shall be void and for all practical purposes this clause shall be deemed to have been annulled.

Before proceeding further, the judgment said, it is necessary to answer that the observation made in Mehram Ali's case (PLD 1998 SC 1445) and in Gulzaman Kasi's case (Criminal Appeal No 269 of 2003) could have not been made in view of the distinctive facts. In this case, the court was authorised to remove the accused from it on his misbehaviour and in his absence the trial was concluded and he was sentenced to death, therefore, it was considered violation of Article 9 of the Constitution.

The verdict said that be that as it may, Justice Tassaduq Hussain Jillani, in his subsequent judgment in the case of Manzoor Qayyum vs the State (PLD 2006 SC 343) held that the question whether the petitioner had absconded, "in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance" would be a question of fact to be decided by the Trial Court in the light of the material brought before it.