P L D 2004 Quetta 39 (PLP)

C. The alleged offence does not fall within the definition of section 6 of the Act. Syed Ayaz Zahoor, learned counsel for the complainant, emphatically opposed the contentions of learned counsel for appellant. The learned, counsel argued that oath was duly taken by the learned Presiding Officer of the Anti‑Terrorism Court, as required under section 16 of the Act and no such objection was ever raised before the trial Court nor any ground has been taken in the appeal and now at a very subsequent stage, an application has been filed. wherein the said objection has been raised To strengthen his argument, learned counsel drew our attention to the order sheet dated 20‑8‑2002, wherein it has been mentioned that, Presiding officer took oath. After making reference to said order sheet, learned counsel contended that, said ground is not available to the appellants. Learned State Counsel, Mr. Jaffer Raza, also strongly opposed the legal contention of the counsel for appellants. Mr. Muhammad Aslam Chishti, learned amicus curiae, however, disagreeing with the legal contention of counsel for appellants, strenuously contended that, even if the oath was taken, but not in terms of section 16 of the Act, it would merely be an omission and further even assuming that oath was not taken, still it would not invalidate the proceedings; unless some prejudice is caused to the appellants Moreover, such objection was also not raised before the trial Court. In support of his contention, learned amicus curiae, referred to the provisions of Oaths Act and the definition of `oath' as given in `The Law Lexicon by P. Ramanatha Aiyar' and `The Black's Law Dictionary'. Mr. Ehsanul Haq Khan, learned amicus curiae, also vigorously opposed the contentions of learned counsel for the appellants, by arguing that, policy of the Legislature for incorporating the provisions of oath was only for the satisfaction of parties, as the .fudge has taken oath under section 16 on Holy QUR'AN, to the effect; that he will decide the case honestly, faithfully and consider himself accountable to Almighty ALLAH. Learned amicus curiae further stated that, since no procedure for taking oath has been prescribed, thus the order‑sheet 20‑8‑2002, indicates that, oath has been taken by the learned which was sufficient to meet the requirements of section 16 of the Before dilating upon the respective contentions of learned counsel for parties, it is worth while to mention here that, many appeals against the judgments of the Anti‑Terrorism Courts, were assailed by numerous appellants, who were convicted in absentia and to resolve the controversy; whether appeals can be filed by convicts in absentia, the matter was referred to a Larger Bench of this Court. The said Bench heard all the appeals and through a consolidated judgment dated 17th June, 2003, held that, an appeal in absentia is not maintainable without surrendering. Coming to the first contention of learned counsel for appellants, it would be useful to reproduce section 16 of the Act, which reads as under:‑‑ "Oath by (Anti‑Terrorism Courts).‑‑A `Member' of an (Anti‑Terrorism Court) shall, at the commencement of a proceeding under this Act, make oath, in the case of a Muslim, on the Holy Qur'an, to the effect that he shall decide the case honestly, faithfully and considering himself accountable to Almighty Allah and in case of a non‑Muslim in accordance with (the Constitution law and his conscience)." A plain reading of the aforesaid section would show that, Presiding Officer, if Muslim, shall take an Oath on Holy QUR'AN and in case of non‑Muslim, in accordance with the Constitution and his conscience The connotation `oath' has been defined in `The Law Lexicon' and `The Black's Law Dictionary', in the following words:‑‑ (i) The Law Lexicon: "OATH, is an affirmation or denial of anything, before one or more persons who have authority to administer the same, for the discovery and advancement of truth and right, calling God to witness that the testimony is true; therefore it is termed Sacra menium, a wholly band or tie; it is called a corporal oath, because among persons professing the Christian faith, the witness when he swears, lays his right hand on the new Testament. " (ii) The Black's Law Dictionary: "Oath. An affirmation of truth of a statement, which renders one wilfully asserting untrue statements punishable for perjury. An outward pledge by the person taking it that his attestation or promise is made under an immediate sense of responsibility to God. A solemn appeal to the Supreme Being in attestation of the truth of some statement. An external pledge or asseveration made in verification of statements made, or to be made, coupled with an appeal to a sacred or venerated object, in evidence of the serious and reverent state of mind of the party, or with an invocation to a Supreme Being to witness the words of the party, and to visit him with punishment if they be false. In its broadest sense, the term is used to include all forms of attestation by which a party signifies that he is bound in conscience to perform the act faithfully and truly. In a more restricted sense, it excludes all those forms of attestation or promise which are not accompanied by an imprecation." It may be observed that a `presumption of truth' is attached to the judicial proceedings. A Judge, who decides cases, ought to decide the same strictly in accordance with law, as if he is answerable to his conscience and Almighty Allah. The contention of Mr. Muhammad Aslam Chishti, learned Amicus Curiae has substance that, `presumption of truth' is attached to all judicial proceedings, conducted by a Judge and even if the Judge has not taken oath, still it would not invalidate the I, proceedings and thus; the appellants had to show that, by not taking oath, prejudice has been caused to them. Without going into the definitions of `oath', it is worth to point out that, order sheet dated 20‑8‑2002, clearly indicates that the Presiding Officer, at the time of commencement of trial, took oath, as envisaged under section 16 of the Act and besides, since the case of appellants was being tried by a Special Court and incorporation of a specific provision in the said law, is only for the satisfaction of the accused persons that, justice will be done to them, else it had no other purpose and object. The contention of learned counsel Syed Ayaz Zahoor, has substance that, no such objection was raised by appellants at the time of trial or while filing appeal and that, Presiding Officer has taken oath, which is indicative from the order‑sheet dated 20‑8‑2003. Although it was objected during arguments that order‑sheet dated 20‑8‑2003, shows that, after cutting the said line has been incorporated, but be that as it may, nothing has been brought on record to show that, there had been any mala fides on the part of Presiding Officer. Even otherwise, in case of any mala fides alleged, the onus to prove the same, entirely lies on the person alleging it. It may be observed that in the instant case, nothing has been brought on record to show as to what prejudice has been caused to the appellants. We have nothing in our mind to doubt the contents of the order‑sheet dated 20‑8‑2003, wherein it has been clearly mentioned that, oath has been taken by the learned Presiding Officer, at the time of commencement of trial and no such objection, was ever raised throughout the proceedings, and inasmuch as, the, memo. of appeal, also lacks incorporation of any such ground. Thus the objection is accordingly repelled. Adverting to the second contention that, publication was not made and proper time was not provided, in accordance with the provisions of section 19(10) of the Act. Before dilating upon the said contention, it would be advantageous to refer to section 19(10) of the Act, which reads as under:‑‑ "Any accused person may be tried in his absence if the Anti Terrorism Court, after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice: Provided that the accused person shall not be tried under this subsection unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing‑ which action may also be taken against him under section 88 of the Code: Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an Advocate at the expense of the State to defend the accused person who is not before the Court. " A simple browse on the said section would reveal that, object is to inform the absconding accused persons, about the commencement of trial by publication in three Daily Newspapers, if the accused cannot be served by ordinary process. Mr.Abdul Waheed Katpar, learned counsel, contended that, law provides that, at least seven days' time be given to the accused persons, for making their appearance before the trial Court, but in the case in hand only three days' time was given to appellants to make their appearance before the Court; 'thus the publication was not proper and further when the law requires, something to be done in a particular way and if not done, it would be deemed to have not done at all. Syed Ayaz Zahoor, learned counsel for complainant pointed out that, since it has been held by the Larger Bench that, appeal cannot be heard in absentia, unless the appellants surrender themselves, therefore, they cannot agitate such grounds before this Court and further, defective publication would be no ground, to invalidate the proceedings. Mr Ehsanul Haq, learned amicus curiae, also stated that the ground is not available to appellants, as they did not appear before by trial Court, after having knowledge about the trial. Besides after passing of the judgment, this ground is not available to them, as appeal has bee filed by them in absentia and they were very well aware of the proceedings. Mr. Muhammad Aslam Chishti, learned amicus curiae, also contended that, since appellants are fugitive of law and after conviction have not surrendered themselves, thus they cannot agitate this point Besides the defective publication could be an irregularity, which curable and thus, it would not vitiate the whole proceedings. The contentions of learned counsel for complainant and learn amicus curiae, have substance that, after publication in the newspaper the appellants could have surrendered at any stage of the proceeding but they have deliberately avoided to appear. Besides under the Act, "In accused person can be tried in absentia but there is no provision lard filing appeal in absentia, as filed by absconding convict‑appellant. Appellants had sufficient knowledge about their conviction, thus the could have approached the trial Court and besides it has been consistently held by the superior Courts that, accused seeking any revised of judicial order, must surrender to the process of law and in case abstaining to attend the proceedings, he loses his right of hearing. In this regard, reference is made to the case of Haq Nawaz v. The State (1999 PCr.LJ 1381, wherein following observations were made:‑‑ We do not subscribe to the view that merely because in a certain situation trial of an accused can be held in absentia by a Special Court, there is no obligation on the convict to surrender to the process of the law before filing an appeal. It is inherent in the very scheme of administration of criminal justice that after conviction, an accused, if on bail, has to be taken into custody and lodged in jail to undergo the sentence. If a licence is given to accused persons to decamp on conviction and still avail of the remedy of appeal, this would encourage lawlessness and might lead to ugly situations in Courts and add to the problems of law enforcing agencies. That is why superior Courts in our country have taken the view that an individual seeking review of a judicial order must surrender to the process of law and if he decamps, he loses right of audience and his appeal can be dismissed and sentence of death confirmed on merits in his absence." There is no impediment in way of the appellants, as they can surrender any time; therefore, appeal in absentia is not maintainable. Reverting to the last contention of learned counsel for appellants that the alleged offence does not fall within the definition of `terrorism' as contained in section 6 of the Act; therefore the Anti‑Terrorism Court had no jurisdiction to try the case. Without going into the merits of the case, suffice it to observe that, deceased Muhammad Aslam Gichki, was a renowned person of the area and after attending a funeral, he was coming to his house, where he Was waylaid and ambushed alongwith two persons, which sent a wave of terror in the public and also sown seeds of a tribal feud. Thus the alleged act clearly falls within the ambit of section 6. of the Act and the Anti‑Terrorism Court had jurisdiction to try the case. As a result of above discussion, Criminal Appeal No.97 of 2002, is dismissed for want of appearance of the appellants and whereas Criminal Appeal No.96 of 2002, alongwith Murder Reference No.27 of 2002, will be heard on merits. The observations made hereinabove are only for the purpose of disposing of the legal objections, raised by learned counsel for appellants and shall have no bearing on the merits of case. Office to fix Criminal Appeal No.96 of 2002 and Murder Reference No.27 of 2002, for regular hearing for a date in office. N.H.Q./3/Q Order accordingly.