P L D 2008 Peshawar 57 (PLP)

RAJ MUHAMMAD KHAN, J.

By way of instant application for quashment, the petitioners Shamshad Iqbal (complainant) and Zafar Iqbal abductee, have assailed the judgment dated 5-4-2007 delivered by Muhammad Yousaf Khan, Additional Sessions Judge-I, Bannu, whereby, in a case under sections 365-A/347, P.P.C./Section 20 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered vide F.I.R.No.88 dated 4-5-2006 at Police Station Domail, he has acquitted one of the accused Ghulam Rasool alias Sanni as he was not charged by the complainant as well as the alleged abductee in their statements before the trial Court as probably compromise was effected by the complainant party with the acquitted accused but rather had exonerated him whereas his co-accused named Shehzad, against whom proceedings under section 512, Cr.P.C. were being carried out, was also discharged from the case in absentia and the proceedings against him under section 512, Cr.P.C. were considered as abated. The case property was, however, ordered to be kept intact till the expiry of the period of appeal/revision.

2. After investigation of the case referred to above, joint challan was submitted to the trial Court against Ghulam Rasool and absconding accused Shehzad. After conclusion of the prosecution evidence, the impugned order followed which has been challenged before this Court to the extent of absconding accused Shehzad inasmuch as he was exonerated and discharged from the case in absentia. Admittedly the alleged abductee, whose statement was recorded as P. W.3 on 31-3-2007, had charged absconding accused Shehzad for kidnapping him from District Lahore to District Kasur where he was kept under guard.

3. Shamshad Iqbal petitioner and Mr. Tariq Aziz Baloch, Deputy Advocate General for the State were heard and record perused.

4. Several notices were issued against respondent Shehzad but his service could not be procured. It appears from the record that unwarranted observations were made by the trial Court in the case of absconding accused Shehzad that in case he is also arrested without any legal justification, the complainant party and the police would make illegal demand from him and so justice demanded that he was also to be exonerated from the charge in his absence. One does not know as to under what provisions the proceedings under section 512, Cr.P.C. are abated in any case, other than when an accused during trial happens to be no more in the world or any enactment has specifically provided for it, as section 512, Cr.P.C. is basically meant for preservation of the evidence. Although the law as contained in section 366, Cr.P.C. may not invalidate a judgment delivered by any criminal Court by reasons only of the absence of any party but since an absconding accused is considered to be fugitive from the law and courts, would lose some of his normal rights granted by procedural as well as substantive law. Moreover, if the policy of delivering judgments, particularly in criminal cases, is allowed to follow, it will not only sidetrack the Investigating Agency from interrogation of the accused leaving culprits to go scot free but would also encourage culprits to abscond from the cluches of law and Courts.

5. It is presumed from the text and tenor of the impugned judgment that neither the complainant nor the State counsel were heard by the trial Court in this case against the absconding accused.

6. For the reasons mentioned above, I accept the instant petition, set aside the impugned judgment to the extent of still absconding accused Shehzad and remand this case back to the trial Court with the direction to reconsider the case against the absconding accused Shehzad after hearing the petitioner and State counsel and dispose of the case against him afresh in accordance with law. The petitioners are directed to appear before the learned Additional Sessions Judge-I, Bannu on 29-3-2008. H.B.T./8/P Petition accepted.