2003 P Cr (PLP)

(f) Penal Code (XLV of 1860)‑‑‑-- ‑‑‑‑Ss. 302/324‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 6, 7, 8, 19(10) & 25(4)‑‑‑Criminal Procedure Code (V of 1898), Ss. 417, 439 & 561‑A‑‑‑Appeal against acquittal of accused tried in absentia alongwith arrested accused‑‑‑Contention of prosecution was that such acquittal was not on merits, but was mere technical acquittal, which could not create any right in favour of accused‑respondent for not being tried again for same evidence‑‑‑Validity‑‑‑High Court declined to consider such point in appeal directed against acquittal of accused by Trial Court which was left open‑‑‑Parties would be at liberty to raise same in appropriate proceedings, if so advised. Habib Ahmed, A.A.‑G. for Appellant. Nemo for Respondent. Date of hearing: 19th August, 2002. MUHAMMAD MUJEEBULLAH SIDDIQUI, J.‑‑‑Through‑ this appeal under section 25(4) of the Anti‑Terrorism Act, 1997 read with sections 417/439/561‑A, Cr.P.C. the State has assailed the judgment, dated 17‑5‑2002 passed by the learned Judge, Anti‑Terrorism Court No.2, Karachi in Special Case No. 202 of 2001, whereby the respondent has been acquitted of the charge under sections 302/324/34, P.P.C. read with sections 6, 7 and 8 of the Anti‑Terrorism Act, 1997, arising out of F.I.R. No.121 of 1999, Police Station, AI‑Falah, Karachi. Heard Mr. Habib Ahmed, learned A.A.‑G. for the State/Appellant. At the very outset the learned A.A.‑G. has candidly sated that. so far, the acquittal of respondent/accused Muhammad Umer alias Chotoo son of Muhammad Siddique, on the basis of prosecution evidence 'ed during the course of trial is concerned, is unassailable. His contention is that, the respondent was sent up to face trial in absentia in accordance with the relevant provisions contained in the Anti‑Terrorism Act, 1997. Some accused persons were arrested and the accused under arrest, as well as the respondent Muhammad Umer who was absconding were tried together. The arrested accused persons were convicted under section 302, P.P.C. and were sentenced to imprisonment for life. However, the respondent was tired in absentia and acquitted with .the following observations:‑‑‑ "So far as the absconding accused are concerned, there is no evidence against them, The Investigating Officer has only sated in his cross‑examination that, they are implicated because of the arrested accused had named them. When there is no other evidence against them worth implicating in this case, they are therefore, entitled to acquittal." , The respondent has been arrested in another case, after the judgment of acquittal was pronounced in this case. During the course of interrogation the accused in another case, he is alleged to have admitted his guilt in the present case and several other cases and has led the Police to recovery of large quantity of explosive material for which another F.I.R. bearing No.161 of 2002, under section 5 of the Explosive Substances Act, has been registered. It is a very interesting case in which the prosecution has raised objections to the course adopted by itself and has contended that, the A learned trial Court ought not to have accepted and followed the course, suggested by the prosecution. It is stated in the grounds of appeal as follows:‑‑ (i)???????? That the learned trial Court has not applied his mind at the time of framing of the charge, that there is no legal evidence available against the respondent at that stage, therefore, his trial in absentia was not warranted under the law. (ii)??????? That in the circumstances of the present case the learned trial Court could have separated the case of the absconder from the case of the arrested accused as there was no legal evidence available against them except statement of co‑accused during the interrogation. (iii)?????? That the acquittal order passed by the learned trial Court has tied the hands of the prosecution and they cannot arrest the accused in this case, until his acquittal order is set aside by this Hon'ble Court. (iv)?????? That the accused was not arrested at the time of first challan, therefore, the. prosecution was having no opportunity to get the accused identified through the eye‑witnesses of this case nor any other material could have been collected by the prosecution at that stage, hence the acquittal order passed by the learned trial Court is not. sustainable under the law. " A perusal of the above grounds shows, that, according to the prosecution itself no material was produced before the learned trial Court warranting conviction of the respondent. The logical conclusion is that, the learned trial Court was fully justified in recording the judgment of acquittal in respect of the respondent. The contention that the learned trial Court ought to have separated the case of the respondent, is not available to the prosecution, as during the course of arguments the learned A.A. ‑G. had no option but to concede that in a normal trial under Cr.P.C. an accused person cannot be tried in his absence and the Court can merely record the evidence against an absconding accused person under section 512, Cr.P.C. and that after arrest of the accused, fresh trial takes place. In this manner the trial of an absconding accused is separated from the trial of the accused appearing before the Court. However, there is a special provision contained in section 19(10) of the Anti‑Terrorism Act, 1997, whereby an absconding accused can be tried in absentia by Anti‑Terrorism Court. It s established principles of the, administration of justice, that nobody/party can be allowed to bow hot and cold at the same time and no I person can be allowed to approbate and reprobate in the same matter. In this case, the prosecution itself prayed the Anti‑Terrorism Court to try the respondent in absentia and the learned trial Court proceeded accordingly in accordance with the law governing the trial before the Anti‑Terrorism Court. Now it is not available to the prosecution to say that, the learned trial Court ought not to have tried the respondent in absentia and ought not to have, framed the charge against him as no evidence was available against the respondent. If a charge is framed by the trial Court at the instance of prosecution, then an accused person can take exception to the framing of the charge but the prosecution cannot be H allowed to raise any objection to the framing of charge against the accused person, who has been sent up by the prosecution to face trial. If in a particular case, certain accused persons have been arrested and investigation is conducted against them, while the some other suspects are gill at large, the investigation is not closed against the other suspects and therefore, instead of submitting challan against such suspects it is always open to the prosecution to submit charge‑sheet against such accused persons only in respect of whom the prosecution is able to collect the sufficient evidence. It can be observed in a charge‑sheet that, there are other suspects also against whom sufficient evidence has not been collected and the prosecution reserves its tight to investigate the case against the other suspects /absconding accused persons as and when apprehended. By adopting such course the prosecution can conduct the investigation against such persons as and when arrested and they can be separately charge‑sheeted if in the subsequent investigation, sufficient evidence is collected against them. However, if the prosecution adopts a course, whereby an accused person has been challaned in absentia and the trial in absentia is permissible under the relevant law for .the time being in force, and the Court adopts the course suggested/proposed by the prosecution, the prosecution is debarred from raising objection to such course adopted by the trial Court. Even otherwise the judgment of acquittal recorded by the trial Court is not open to any exception for the simple reason that, the memo. of appeal itself contains that, the prosecution was not able to collect any material against the respondent and there was no evidence whatsoever, connecting the respondent with the offence for which he was challaned to face trial. It is further contended in the grounds of appeal that', the acquittal of the respondent is not on merits of the case as it is a mere technical acquittal which cannot create any right in favour of the respondent for not being tried again for the same evidence. We would not like to delve on this point, in the present appeal directed against the acquittal of the respondent by the trial Court. This point is left open and the parties are at liberty to raise this point in the appropriate proceedings, if so advised. For the foregoing reasons, we are not persuaded to admit the appeal for regular hearing which stands dismissed in limine. N.H.Q./S‑231/K????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.