2015 P Cr (PLP)

SHAKEEL AHMED BALOCH, J.

This Criminal Appeal No.32 of 2015 has been filed by the appellant Dad Muhammad alias Dada son of Khudai Dina alias Wahid Bakhsh, against the judgment dated 10th December, 1997 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge, S.T.A. Quetta (hereinafter referred as, "the learned trial Court"), whereby the appellant was convicted in absentia under section 302, P.P.C. and sentenced to death with fine of Rs.200,000 the amount of fine in case of recovery was directed to be paid to the legal heirs of deceased persons equally; the appellant was also convicted under section 324, P.P.C. and sentenced to suffer imprisonment for two years' R.I. with fine of Rs.5,000.

2. Facts of the case are that on 26th November, 1995 the complainant Moula Bakhsh lodged FIR No.174/1995 at Police Station Civil Line Quetta under sections 302, 324, 34, 147, 149, 109, P.P.C., stating there that he along with his family is residing at Mengal Abad Quetta and doing business of fishing. He is assisted in the business by his brother Shah Muhammad, nephew Qalandar Bakhsh, Muhammad Ramzan and Arbab, whereas Abdul Sattar was an employee. He was informed that his brother Shah Muhammad, nephew Qalandar Bakhsh, Abdul Sattar and Muhammad Ramzan have been assassinated and Arbab has been injured. The deceased had been killed by means of fire-arm. The motive behind the occurrence was stated to be an old enmity with him by accused Zulfiqar, Ali Muhammad, Dad Muhammad, Muhammad Waris sons of Khudai-Dina.

3. It is evident from the record that after registration of FIR, accused Zulfiqar alias Bhutta, Muhammad Waris and Ali Muhammad were arrested and were challaned in the trial Court, whereas process to the extent of the appellant were issued and subsequently were declared as proclaimed offender and a counsel was appointed on behalf of the appellant. Hence, charge was framed to the extent of the appellant in absentia and after recording evidence, he was convicted and sentenced for death, vide impugned judgment. After pronouncement of judgment the appellant could not be arrested for a long period and recently he was arrested, hence he preferred the instant appeal for setting aside his conviction.

4. Learned counsel for the appellant stated that the appellant is residing in far flung area of this province i.e. Dera Bugti, where no facility of electronic or print media is available and even no proper notices were sent and served upon the appellant, thus the registration of FIR and pendency of proceeding as well as his conviction in absentia were not in his knowledge; that the conviction of the appellant in absentia is violative of Articles 9 and 10(1) of the Constitution of the Islamic Republic of Pakistan, 1973 and thus not sustainable in the eyes of law; that the appellant was condemned unheard as no opportunity of hearing was afforded to him.

5. Learned Deputy Prosecutor General frankly conceded to this proposition and did not oppose the appeal.

6. Heard.

7. In this case the appellant was tried and convicted in absentia by the Special Judge STA, Quetta under the repealed law i.e. Suppression of Terrorist Activities (Special Court) Act, 1975. After promulgation of Anti-Terrorism Act, 1997 ("the Act 1997") subject to provision of its section 39-B, since the special court STA is no more in existence but acts done under S.T.A. Act, 1975 were given due protection by section 39(2), of the Act 1997. Though the present case was instituted under the repealed Act of 1975 but now the case of appellant could be tried by a judge of the Anti-Terrorism Court under the Act, 1997, therefore, the provision of section 19 of the Act, 1997 will come into play.

8. The record reflects that the appellant was awarded conviction in absentia as the matter was tried in his absence and due to such reasons no counsel was appointed by him, which otherwise was his constitutional right to consult or to be defended by a legal practitioner of his own choice, thus he has been deprived of his constitutional right. It is entirely possible that the accused did not present himself before the court due to lack of information but not to deliberately evade justice, as according to him he was not aware of the fact that a case had been lodged against him. The question whether appellant was aware about the case or he was unaware cannot be resolved without leading the evidence on that particular point.

9. The Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") is a living document, wherein the right of fair trial is guaranteed under Article 10-A, which stipulates as under: "10-A. Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process." The appellant was not convicted according to law because the pre-requisites of fair trial were not provided to him, thus the procedure adopted by the learned trial court was not in accordance with the law and Articles, 9, 10 and 10-A of the Constitution. Therefore, conviction recorded against the appellant would not be sustainable in view of dictum laid down by the Hon'ble Apex Court. The proposition regarding the trial in absentia came for hearing before the Hon'ble Supreme Court of Pakistan in Arbab Khan's case reported in 2010 SCMR 755, whereby the trial in absentia was declared ultra vires to the Constitution of Islamic Republic of Pakistan, 1973. In another case where a person was convicted when he was absconding a Division Bench of this court, (comprising of Hon'ble Chief Justice, Qazi Faez Isa and Justice Muhammad Noor Meskanzai) in Criminal Appeal No.274 of 2009, the dictum laid down in Arbab Khan's case was followed and it is inter alia held that, when no charge was framed and or the evidence in respect of wilful absconsion was not lead by the prosecution, the conviction would be against the norms of natural justice. It may be noted here that while dealing with the proposition of trial in absentia the Hon'ble Supreme Court of Pakistan under sections 19 and 10(1) of the Anti-Terrorism Act, 1997 authorized the special court to try the accused in his absence, if it is satisfied that such absence is deliberate and brought about with a view to impede the course of justice. However, subsequently the said questions came for consideration before the Hon'ble Supreme Court of Pakistan and the same was dealt with in the case of Mir Ikhlaq Ahmed v. The State 2008 SCMR 951 and the trial of accused in absentia was declared as illegal and unconstitutional in view of the Articles 9 and 10(1) and it was held 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 retrial of the case." Therefore, it is more appropriate that subject to Article 10-A of the Constitution and the dictum laid down by the Hon'ble Apex Court, in the first instance he be produced before the court and to defend himself on both charges i.e. a wilful absconsion and on murder of the deceased.

10. Since, the conviction awarded in absentia has already been declared illegal by the Hon'ble apex Court, therefore, keeping in consideration the dictums of Hon'ble Supreme Court, we are convinced that the conviction awarded to the appellant in absentia cannot be sustained, therefore, the appeal is accepted and the impugned judgment dated 10th December, 1997 is set aside and the matter is remanded back to the learned Special Judge, Anti-Terrorism Court Quetta for trial of the appellant afresh. HBT/49/Bal. Case remanded.