2020 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

This Criminal Appeal is directed against the order dated 22nd April, 2019 ("impugned order") passed by the Court of Special Judge, Anti-Terrorism, Dera Allah Yar at Dera Murad Jamali, whereby the appellant was convicted under section 21-L of the Anti-Terrorism Act, 1997 (the Act 1997) and sentenced to suffer five years rigorous imprisonment with fine of Rs.2,00,000/- and in default whereof to further suffer SI for six months.

2. Briefly stated facts of the case are that on 09.02.2013 complainant Ali Asghar lodged an FIR No.07/2013 with Police Station Shaheed Aziz Bilo Nautal, alleging therein that on the stated date he along with other relatives were present at their house situated at Goth Nadeem Raeesani, Quba Sher Khan when at about 07:05 p.m the accused persons armed with deadly weapons i.e. Kalashnikov, Rocket Launcher, BM came there by 7/8 vehicles and started indiscriminate firing upon them. In result whereof Mushtaq Ahmed and Qadeer Ahmed sustained serious injuries and succumbed to their injuries. Accused persons also made fire through Rocket and other weapons due to which Buzger Raza Muhammad, minor Najma daughter of Raheem Baksh received serious injuries, while Nadeem Ahemd and Bangul Khan were abducted on force of weapons. Later on accused persons encircled the area and looted one tractor along with three trolleys, 02 thrashers, one motorbike, money Jewelry, and cattles and took away with themselves. Thus, the FIR No.07 of 2012 with Police Station Shaheed Aziz Bilo Nautal was lodged.

3. After usual investigation challan was submitted before the trial court, whereby the charge was framed and read over to the accused persons facing trial, who denied the charge and claimed trial. On conclusion of trial the accused persons facing trial were acquitted of the charge vide judgment dated 10.01.2018. Thereafter the complainant submitted supplementary application before the SHO of the concerned Police Station, whereupon the investigating officer submitted supplementary challan before the trial court against the appellant along with one Saeed Ahmed, whereupon on 22.4.2019 the trial court framed charge in absentia. On conclusion of trial, the appellant along with Saeed Ahmed was convicted vide impugned order in the above terms. Hence this appeal.

4. The learned counsel for the appellant contended that the appellant was not nominated in the FIR and he was not challaned by the Investigating officer; that in ATC case No.5/2017 the appellant was not arrayed as co-accused and nine co-accused were put on trial in ATA case No.05 of 2017, out of which eight were acquitted of the charge under sections 302, 324, 392,365, 147, 148, P.P.C. read with 7, ATA 1997 in FIR No. 07/2-17, Police Station Shaheed Aziz Bilo Nautal, while absconding co-accused Shaukat Ali was declared proclaimed offender by the Special Judge vide judgment dated 19th January, 2018; that after passing of judgment dated 19th January, 2018 in ATA case No.05 of 2017, a supplementary statement was made by the complainant on 12.10.2018, implicating the appellant and absconding co-accused, on the basis whereof challan was submitted without knowledge of the appeal; that without serving any notice or process of the special court, the appellant was convicted under section 21-L of the Act, 1997. He finally urged that in view of the dictum laid down by the Hon'ble apex court the trial in absentia is held as unconstitutional, thus, the convictions so recorded are not sustainable. He therefore prayed for setting aside the impugned judgment.

5. The learned Deputy Prosecutor General supported the impugned order and urged for dismissal of the appeal.

5. We have heard the learned counsel for the appellant, learned DPG and have gone through the record with their able assistance. Since the appellant has been convicted and sentenced under section 21-L of the Act 1997, therefore it would be appropriate to reproduce the same as under: "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."

7. The section 19 (10) of the Act 1997 deals with trial of a proclaimed offender in absentia, which stipulates and makes it mandatory for the Special Court to conduct an inquiry in respect of deliberate absence of the accused and without fulfilling the directions made therein no conviction can be sustained. Section 19(10) of the Act, 1997 being relevant is reproduced here as under: "19(10) - 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 persons shall not be tried under this subsection unless a proclamation has been published in respect of him in at least three national 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."

8. The record reflects that after declaring the appellant as proclaimed offender the trial court proceeded with the matter in his absentia and charge was framed against the appellant for the alleged offence. The record further reveals that no charge was framed against the appellant under section 21-L of the Act 1997. The trial court did not formulate the point for the willful absconsion of the appellant in the main judgment nor the prosecution produce any evidence in respect of willful absconsion of the appellants. Since the appellant is an employee of Agriculture Department Quetta as Naib Qasid and the complainant was well aware that the appellant is not residing at Dera Murad Jamali. Under such circumstances, it cannot be held that the appellant hindered the course of justice in terms of section 21-L of the Act 1997 and the trial court recorded the conviction against the appellant under section 21-L of the Act in cursory/slipshod manner which amounts to grave miscarriage of justice.

9. The Hon'ble apex Court has repeatedly held the conviction in absentia as violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), whereby right of fair trial has been guaranteed in the following words: "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."

10. The appellant was not convicted according to law because the pre requisites of fair trial were not provided to them, 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 is not sustainable in view of dictum laid down by the Hon'ble apex Court on the case of Mir Ikhlaq Ahmed v. The State 2008 SCMR 951, wherein the trial of accused in absentia was declared as illegal and unconstitutional in view of the Articles 9 and 10(1) of the Constitution 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."

11. The judicial dignity demands that every judgment delivered by the Hon'ble Supreme Court deserves on receipt the highest respect while any deviation whereof will amount to clear violation of Article 189 of the Constitution, which for ready reference is reproduced as under: "

189. Decisions of Supreme Court binding on other Courts. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." For the foregoing reasons, the appeal is allowed. The impugned order dated 22nd April, 2019, passed by the Court of Special Judge, Anti-Terrorism, Dera Allah Yar at Dera Murad Jamali is set aside. The case is remanded to the trial court to frame charge under section 21-L of the Act 1997 as well as for the alleged offence and to further proceed in accordance with law. This court has already granted ad-interim pre-arrest bail to the appellant vide order dated 15.07.2019. The ad-interim pre -arrest bail shall be confirmed or otherwise by the trial court. SA/91/Bal. Case remanded.