2010 PLP 755 (SCMR)

RAHMAT HUSSAIN JAFFERI, J.

The appellant Arbab Khan was tried in absentia and convicted by the learned Anti-Terrorism Court-II, Sukkur Division, Sukkur; vide judgment dated 2-10-2007, for offence punishable under section 7(b) of Anti-Terrorism Act, 1997 (hereinafter referred to as `the Act'), under section 3 of Explosive Substance Act, 1908, under sections 148, 149 and 429, P.P.C. and sentenced to 10 years' R.I. and other terms of imprisonment with fine. He was also convicted for offence punishable under section 21-L of the Act and sentenced to suffer R.I. for 5 years. All the sentences were ordered to run concurrently.

2. In the challan, the appellant was shown as absconder, therefore, warrants and proclamation as required under sections 87 and 8 of Cr.P.C. were issued to procure his attendance. Notices were published in the newspapers and thereafter the learned trial Court declared him absconder for proceeding with the case in absentia, as required under section 19(10) of the Act. The appellant was arrested in another case, therefore, he filed an appeal before the learned High Court of Sindh, Bench at Sukkur, but the same was dismissed under the impugned order dated 23-7-2009. In the meantime, the appellant had also moved an application under section 19(12) of the Act before the learned trial Court for setting aside the judgment dated 2-10-2007. The appellant preferred the petition for grant of leave. The learned counsel for the appellant did not press the petition except conviction and sentence under section 21-L of the Act on the ground that for setting aside the judgment concerning other conviction and sentence he had filed application under section 19(12) of the Act before the trial Court, which is pending. Therefore, this Court, vide order dated 20-4-2009, granted leave to appeal in respect of conviction and sentence under section 21-L of the Act. A relevant portion of leave granting order reads as under:-- "A. Could the Trial Court under its judgment dated 2-10-2007 convict and sentence the petitioner under section 21-L of Anti-Terrorism Act, 1997 without recording and discussing the evidence in that behalf particularly when no charge to that effect was framed; B. Whether on an appeal preferred by the petitioner, could the Appellate Court non-suit him on technical ground without adverting to the above aspect of the matter; and C. Whether during pendency of an application under section 19(12) of ATA, 1997 moved by the petitioner before the trial Court could the Appellate Court without taking the said fact into account dismiss his appeal under the impugned order?"

3. We have heard the learned counsel for the appellant, the learned State Counsel and perused the record of this case very carefully. The learned counsel for the appellant has stated that section 21-L of the Act is similar to section 31-A of National Accountability Bureau Ordinance, 1999 (hereinafter referred to as `the Ordinance'); that the trial in absentia has' been declared violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 (hereafter referred to as `the Constitution') for offence punishable under section 31-A of the Ordinance by this Court in Criminal Appeal No.269 of 2003 Gul Zaman Kazi v. State decided on 11-10-2004; that relying upon the said decision, the learned High Court of Sindh has also declared the trial in absentia as against the provisions of the Constitution and illegal in two cases viz. Mst. Mubarak Salman v. State PLD 2006 Kar. 678 and Noor Muhammad Khatti v. State 2005 PCr.LJ 1889, therefore, the trial of the appellant in absentia is also illegal. The learned State counsel has conceded the above position and has not supported the impugned order as well as the judgment of the learned trial Court in respect of conviction and sentence for offence punishable under section 21-L of the Act.

4. Having heard the learned counsel for the parties and perusing the record, we find that the proceedings under sections 87 and 88 of Cr.P.C. were initiated for the purpose of proceeding with the case in absentia, thereafter the charge was framed for other offences except section 21-L of the Act. The record further reveals that no evidence was recorded to prove the ingredients of section 21-L of the Act. No point for determination concerning the offence under section 21-L of the Act was framed in the judgment by the trial Court. There is no discussion in the impugned order and in the judgment of the trial Court with regard to any evidence available on record. In cursory manner, the learned trial Judge convicted and sentenced the appellant for the said offence. Thus, the procedure adopted by the trial Court in convicting and sentencing the appellant is not warranted by law and illegal.

5. We have also gone through section 21-L of the Act and section 31-A of the Ordinance and find that both the sections are similar to each other. The said sections read as under: "[Section 21-L. Punishment for an absconder.

Whoever being accused of an offence under this Act, absconds and avoids arrest or evades appearance before any inquiry, investigation or Court proceedings or conceals himself, and obstructs the course of justice, shall be liable to imprisonment for a term not less than [five years] and not more than [ten years] or with fine or with both]. [31-A. Absconding to avoid service of warrants.

Whoever absconds in order to avoid being served with any process issued by any Court or any other authority or officer made this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance shall be guilty of an offence punishable with imprisonment which may extend to three years notwithstanding the provisions of sections 87 and 88 of Code of Criminal Procedure, 1898, or any other law for the time being in force]."

6. This Court in the above unreported decision had held that the trial in absentia and conviction under section 31-A of the Ordinance was violative of Article 9 of the Constitution. Relying upon the said decision, the learned High Court of Sindh in the cases of Mst. Mubarak Salman and Noor Muhammad Khatti (supra) had also formed the similar opinion and further added that the trial Court did not adopt correct procedure of framing the charge, recording the evidence and discussing the same. Thus the trial in absentia without adopting the legal procedure for trial of such offence is violative of Article 9 of the Constitution. Further in the case of Ikhlaq Ahmad v. State 2008 SCMR 951 this Court set aside the conviction and sentence passed by the Special Judge, Anti-Terrorism Court, in a case of murder in which the accused were tried in absentia as they were absconders and it was held that trial in absentia was violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of the Act. The relevant portion of the judgment reads as under:

"In view of the above, we feel that the trial of the appellants, in absentia, undertaken by the Special Judge, Anti-Terrorism Court, was violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of the Anti-Terrorism Act, 1997, thus, cannot be allowed to sustain. Furthermore, the appellants were not afforded any opportunity of hearing and thus, they were condemned unheard which is contrary to the principle of natural justice. We are convinced that the judgments, convictions and sentences rendered and awarded by both the Courts, in the absence of the appellants, to-.their extent are not sustainable under the law and violative of the Constitution and law, which has necessitated the re-trial of the case."

7. In the light of above discussion, the conviction and sentence awarded to the appellant under the impugned judgment and that of the trial Court are set aside. However, this judgment shall not be construed to preclude the trial Court from taking any proceedings in accordance with law and adopt legal procedure for trial of offence punishable under section 21-L of the Act. Consequently, the appeal is allowed. N.H.Q./A-1/SC Appeal accepted.