1997 P Cr (PLP)

MUHAMMAD AQIL MIRZA, J.

This judgment shall dispose of Criminal Appeal No.547 of 1994 and Writ Petition No.12331 of 1994, as the same impugned order has been challenged in both the cases.

2. Criminal Appeal No.5,47 of 1994 challenges the order, dated 7-9-1994 whereby Muhammad Rafique, Muhammad Khan appellants and their co-accused Dost Muhammad have been convicted and sentenced under section 420/468/ 471/34, P.P.C. by the learned Special Court (Offences in Banks), Lahore. Each one of them was sentenced to 4 years' R.I. and a fine of Rs.10,000 or in default 6 months' R.I. under section 468/34, P.P,C., one year's R.I. and a fine of Rs.10,000 or in default 3 months' R.I. under section 471/34, P.P.C. and one year's R.I. and fine of Rs.10,000 or in default 6 months' R.I., under section 420/34, P.P.C. The sentences of imprisonment are to run concurrently.

3. The prosecution case is that Muhammad Ishaque, Dost Muhammad, Muhammad Rafiq and Muhammad Khan accused on 27-2-1975 and 13-3-1975 forged loan applications in the name of Din Muhammad, Muhammad Saleem and Ali Nawaz, and deceitfully received a total sum of Rs.3,750 as agricultural loan in fictitious names from the Agricultural Development Bank of Pakistan, Chung Branch, District Lahore. Prosecution examined 16 witnesses. The learned Special Court acquitted Muhammad Ishaque and sentenced the remaining three persons in the above terms.

4. This appeal has been filed on behalf of Muhammad Rafiq and Muhammad Khan. Dr. A. Basit, learned counsel for the appellants has contended that the appellants were convicted in the trial held in absentia. Such a trial being violative of Fundamental Right No.10, guaranteed by the Constitution, is void ab initio. He further contends that there was no sufficient material on the file, on the basis of which the learned trial Court could have ordered proceedings in absentia against the appellants.

5. We have perused the record. On 20-12-1989 it was observed by the learned trial Court that the summons in the name of Muhammad Rafiq had been received by his brother, therefore, it could be presumed that he had intimation of the hearing of the case, and on taking this view his bail was cancelled. Whereabouts of Muhammad Khan were not known. The trial Court, in these circumstances, directed publication of the proclamation. On 7-3-1990 statement of Muhammad Sharif, A.S.-I. was recorded on the question of publication of the proclamation. In view of the deposition made by him the trial Court felt satisfied that absence of Dost Muhammad, Muhammad Rafiq and Muhammad Khan was deliberate and brought: about with a view to impede the course of justice. Accordingly, proceedings were directed to be taken against them in their absence.

6. We find that submission of the learned counsel that statement of Muhammad Sharif, A.S.-I. was not sufficient to pass the said order, is totally justified. Muhammad Sharif, A.S.-I. in his statement, dated 7-3-1990 stated as follows:-- "I was given proclamation Exh. P.A. with respect to Dost Muhammad, Exh. P.B. with respect to Muhammad Rafique, Exh. P.C. with respect to Muhammad Khan and Exh. P.D. with respect to Muhammad Ishaque accused for their presence in Court today. The address of Muhammad Ishaque on the proclamation Exh. P.D. was not correct. I made report Exh.P.E./1 to that effect. However, Muhammad Ishaque accused has today appeared in Court. The proclamation Exhs. P.A., P.B. and P.C. were affixed outside Court and known residences of the accused. These were proclaimed by beat of drums also. My reports respectively are Exhs.P.A./1, P.B./1 and P.C./1. These are correct and signed by me. Dost Muhammad, Muhammad Rafique and Muhammad Khan accused are deliberately absent from Court today, in spite of proclamations They are absconders. " From the perusal of the record, however, it is found that Exhs. P.A., P.B., P.C. and P.D. referred to in the statement of Muhammad Sharif, A.S.-I. are not available on the record. These exhibited proclamations are on the connected file pertaining to Criminal Appeal No.548 of 1994: It appears that the proclamations were issued only in the other case, while they have also been pressed into service in the present case. This obviously could not have been done. Separate proclamation, in respect of each trial required to be issued. That having not been done, appellants herein could not be tried in absentia. In the connected Criminal Appeal No.548 of 1994, we have already found that even in that case the proclamation had not been properly executed and the trial was bad on that account. Accordingly, we find that the order of conviction and sentence regarding the appellants is liable to be set aside, and it is so ordered.

6. Since on the factual side we have come to the conclusion that the proceedings in absentia were bad for want of proper proclamation, we have not touched the legal proposition raised by the learned counsel for the appellants that the trial held in absentia is void on account of being violative of Article 10 of the Constitution. Accordingly, we refrain from giving any finding on this point, which may be attended to in some other appropriate case.

7. For what has been discussed above, the appeal is accepted, the conviction and the sentence imposed on the appellants are set aside. The case is remanded to the learned Special Court for fresh trial, in accordance with law. Since the relief has been granted in the criminal appeal, no decision is called for in the writ petition, which is being disposed of as having become infructuous. N.H.Q./M-2167/1 Case remanded