2009 PLP 1198 (MLD)

Finding him guilty of abducting for the purpose of ransom Dilmeer and Khalid Hussain, the Anti-Terrorism Court-2 Sukkur and Larkana Divisions at Sukkur, by its judgment,. dated 18-5-2006, sentenced' the appellant in absentia to undergo to imprisonment for life and forfeiture of his property. Under the same judgment Wazir, Sajan and Rahimdad were also convicted for the same offence and were awarded the same sentence. The trial was conducted in presence of Wazir; while the latter two were convicted and sentenced in absentia.

2. Briefly, the facts are that on 29-1-2005, at 2030 hours, six dacoits armed with deadly weapons, including Kalashnikovs, abducted for ransom Dilmeer and Khalid Hussain from Kandhkot-Shikarpur National Highway, while they were on their way to Punjab.

3. On 2-2-2005, at 1300 hours, SIP Agha Najeebullah Pathan, the then S.H.O. of Police Station B-Section, Kandhkot, on receipt of secret information about commission of the offence, registered F.I.R. bearing No.6/2005, acting himself as complainant on behalf of the State.

4. On the same day, at 2200 hours, the S.H.O. claims to have rescued the two abductees after an encounter with dacoits near Jagan Patan deli Makhwani in which nobody was injured and nobody was arrested. However, police claimed to have identified the dacoits to be Wazir, Sajan, Ali Hassan and Rahimdad. Wazir was arrested on 12-6-2005.

5. At trial, which was conducted in presence of Wazir and in absence of Sajan, Ali Hassan and Rahimdad, the prosecution examined five witnesses including one of the two abductees, namely, Dilmeer and two of the police officers, namely, SIP Najeebullah Pathan and H.C. Janib, who claimed to have rescued the abductees from the dacoits after an encounter with them. The remaining three were formal witnesses.

6. The trial Court convicted all the four and sentenced 'them to undergo imprisonment for life and confiscation of their property.

7. On appeal, bearing Criminal Appeal No.56 of 2006, this Court, by its judgment, dated 20-2-2007, acquitted Wazir, mainly on the ground that abductee Dilmeer had not implicated Wazir or anybody else and evidence of two police officers that they had identified the dacoits in the dark night in the jungle at the time of encounter in which nobody was arrested and nobody was injured was not credible.

8. The present appellant, who was convicted in absentia under the same judgment, after his arrest on 11-11-2008, has appealed against his conviction and sentence without approaching the trial Court for setting aside his conviction.

9. In law there are two options available to a person convicted in absentia. He can request the trial Court to set aside his conviction under section 19(12) of the Anti-Terrorism Act, 1997, by showing that he did not abscond and can also file appeal under section 25 ibid. Filing of application under section 19(2) ibid is not an indispensable condition for filing appeal under section 25 ibid. Powers of the appellate Court are wider than the powers of the trial Court in the matters of setting aside conviction in absentia. The trial Court after setting aside the conviction shall proceed to try the accused in his presence; while the appellate Court after setting aside the conviction may remand the case to the trial Court for fresh trial or may even acquit him on merits. If a case is fit for acquittal on merits, it will be futile to conduct fresh trial. If a person convicted in absentia is entitled to' acquittal on merits, he cannot be forced to undergo the botheration of trial. Under section-25 ibid, there is nothing to suggest that a person convicted and sentenced in absentia cannot file appeal without first making application under section 19(2) ibid.

10. Out of two abductees, one, namely, Khalid Hussain could not be traced out and other, namely, Dilmeer did not implicate either Wazir, in whose presence the trial was conducted, or the present appellant, who was tried in absentia. The evidence of two police officers, namely, SIP Najeebullah Pathan and H.C. Janib, who claimed to have identified the dacoits, was not believed by this Court in the appeal filed by Wazir. After the acquittal of Wazir by this Court, conviction in absentia of present appellant Ali Hussain, who has a better case for acquittal, cannot be sustained on same evidence. No useful purpose will be served to examine the same witnesses again. The learned Assistant Advocate General is also of the same opinion. Accordingly, the conviction and sentence of the appellant recorded in his absence are set aside and he is acquitted. He may be released immediately. H.B.T./A-99/K Appeal allowed.