2014 P Cr (PLP)

SYED AFSAR SHAH, J.

This criminal appeal under section 25(3) of the Anti-Terrorism Act, 1997 is directed against the judgment dated 25-11-2013 rendered by learned Judge, Anti-Terrorism Court D.I. Khan, whereby the appellants were convicted under section 27 of the Act referred to ibid and sentenced to six months each (suspended) with a fine of Rs.50,000 each (suspended).

2. Relevant facts of this criminal appeal are that on 30-7-2013 a criminal case was registered with the local police of police station Cantt. D.I. Khan based on an information led by the Superintendent of Prison D.I. Khan consequent to infamous jail break incident. On completion of investigation in the case, final challan was submitted to the Court of learned Judge, Anti-Terrorism Court D.I. Khan for trial. On conclusion of the trial conducted in the trial Court, the learned Judge by extending the benefit of doubt acquitted the accused facing trial, while recorded conviction of the Investigating Officers of the case, the appellants, on the grounds that they have not been able to properly investigate the case and have also failed to discharge their duties as per law. 2(sic.) Learned counsel for the appellants contended that the impugned judgment vide which the appellants have been convicted and sentenced is against the facts and materials on record besides being against law on the subject and hence is liable to be set aside. He further added that the learned Court was not vested with the power to convict the appellants without giving them an opportunity to make their defence, if they have any. He went on to say that the observation of the learned Judge that the appellants have not been able to investigate the case fairly and that they have failed to discharge their duties in accordance with law is misconceived and unwarranted and in this view of the matter he urged that the conviction recorded by the learned trial Court is not sustainable in the eye of law. Developing his arguments, learned counsel for the appellants further added that the investigation conducted by the appellants as Investigating Officers is strictly in accordance with law and there is no flaw, whatsoever, in the said investigation. Lastly he argued that the learned trial Court has made acquittal of the accused by giving them the benefits of doubt and not due to any fault on the part of the appellants.

3. As against that, learned Additional Advocate-General by defending the impugned conviction of the appellants argued that since the appellants have conducted defective investigation in the case, therefore, they have rightly been convicted and sentenced.

4. We have considered the submissions of learned counsel for the parties and gone through record of the case.

5. Admittedly and while going through the impugned judgment, one could reach to an irresistible conclusion that before recording conviction of the appellants, show-cause notices have not been given to them inasmuch as omissions/commissions in the investigation on their parts were not highlighted. We know that under section 27 of the Anti-Terrorism Act, 1997, the learned Judge was having the power to convict the delinquent Officers when he comes to the conclusion that the Investigating Officer had failed to conduct the investigation fairly or had failed to pursue the case properly in breach of his duty, but at the same time it is a principle of natural justice that no one should be dealt with to his material disadvantage, or deprived of his liberty or property without having any opportunity of being heard and making his defence, as in the instant case, where show-cause notices have not been given to the appellants highlighting the omissions/commissions on their parts during the investigating of the case. It is a glaring and daring violation of the principle of natural justice enshrined in the maxim of "Audi alteram partem" i.e. no man shall be condemned unheard. The language of the above quotation is plain and well conceivable, therefore, leave nothing in doubt with regard to this principle that before convicting a person, he should be given an opportunity of hearing. In this respect, we are fortified by a case law titled Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 Supreme Court (Pak.) 45).

6. Again in a case law titled Mst. Abeda Begum v. Government of Pakistan etc. (NLR 1985 Civil 167) it was observed by their Lordships that:-- "It is settled principle that no person should be condemned unheard. This principle is said to be traceable to the dawn of time. Fortescue, J. in R.v. Chancelor of Cambridge (172 Medea 195 (1723) Fortesque 202) said: "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God Himself did not pass sentence upon Adam, "before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of tree, whereof I commanded thee that thou shoulst not eat? And the same question was put to Eve also." The above question is from: Fundamental Rights and Constitutional Remedies in Pakistan by Syed Sharifuddin Pirzada, page

522. It is not a principle of purely Hellenistic, Roman or Continental origin. It governs every civilized system of society. Murshed, C.J., in PLD 1965 'Journal Section' 1, has referred to a Hadith of the Holy Prophet (Peace be upon him) quoted in Mishkat Babul Qazaa from Tirmizi, Abu Da'ood and Ibne Maajah to the following effect:- "Once the Prophet of God (Peace be upon him) appointed Hazrat Ali, in his early youth, to the judgship of Yemen. Hazrat Ali pointed to his youth and inexperience and confessed his lack of acquaintanceship with the intricacies and requirements of such a reasonable undertaking. The Holy Prophet (PB) replied 'God will guide you and give you strength in your pronouncements, if in deciding issues between parties you will not decide in favour of one such party without hearing the other side."

7. In the present case, the appellants have been condemned unheard as no opportunity of defence has been given to them by the learned Judge Anti-Terrorism Court D.I. Khan violating therein the very principle of natural justice, resultantly, we accept the appeal, set aside the impugned conviction and sentences of the appellants recorded by the learned trial Court and acquit them from the charges levelled against them. ARK/330/P Appeal accepted.