2008 SCMR 829 (PLP)

MIAN HAMID FAROOQ, J.

The petitioner-convict, through the present petition, seeks leave to appeal against the judgment, dated 30-3-2005, whereby, the learned Division Bench of Balochistan High Court at Quetta, found him guilty for committing murder of Tayyab Khan and Mst. Fateh Khatoon, confirmed his death sentence awarded by Special Judge Anti-Terrorism Court and answered the Murder Reference sent by the trial Court in affirmative.

2. Facts relevant for the decision of the present petition are that a case under sections 302/420/147/148 and 149, P.P.C. was registered with Police Station Dera Murad Jamali, at the instance of Hasil Khan vide F.I.R. No.95 of 2001, dated 28-7-2001, against Muhammad Arif (petitioner), Saleh Muhammad and Attaullah for the murder of Tayyab Khan son of Hasil Khan and Mst. Fateh Khatoon wife of Tayyab Khan; pursuant thereto investigation was taken in hand and two accused, namely, Saleh Muhammad and Attaullah were arrested, while the petitioner Muhammad Arif could not be arrested, he was declared proclaimed offender and the prosecution after completing formalities submitted challan before trial Court showing him absconder. The learned trial Court issued warrants of his arrest, which remained unexecuted, it proceeded against him under section 87, Cr.P.C., publication was made in the daily newspapers and thus, he was tried in absentia. The case was initially pending before Special Judge, Suppression of Terrorist Activities, wherefrom it was transferred to Special Judge constituted under Anti-Terrorism Act, 1997. The prosecution produced eight witnesses, the afore-stated arrested accused were examined under section 342, Cr.P.C., Attaullah, accused get recorded his statement under section 340(ii), Cr.P.C. and also produced defence witnesses. The learned trial Court concluded the trial, held that the prosecution failed to establish case against accused Saleh Muhammad and convicted absconding accused (Muhammad Arif) and Attaullah under section 302(b)/34, P.P.C. read with section 6(2)(a) of Anti-Terrorism Act, 1997 and sentenced them to death, vide judgment, dated 2-5-2002.

3. The petitioner was convicted and sentenced in absentia, he was not arrested till then and he did not file any appeal against the said judgment, however, Attaullah filed the appeal. The learned trial Court sent Murder Reference No.ATA(s) 7 of 2002 to the High Court of Balochistan, Quetta, for confirmation of death sentences awarded to the afore-noted persons. The High Court after finding that the case of Attaullah should have been tried under Juvenile Justice System Ordinance, 2000, set aside the judgment, dated 2-5-2002 to his extent and remanded the case to the Court established under Juvenile Justice System Ordinance, 2000. As regards the murder reference, since he was still absconding and despite publication of notices in different newspapers for his service none entered appearance, therefore, Taalat Waheed, Advocate was appointed to defend him at State expenses. The learned High Court after believing the ocular testimony of P.W. to P.W.3, corroborated by medical evidence, and recovery of empties came to the conclusion that the petitioner was rightly found guilty for committing murder of both the deceased, the death sentence awarded to him was confirmed and the reference was answered in affirmative, vide judgment, dated 30-3-2005, hence the present petition.

4. We have heard the learned counsel for the petitioner as well as Additional Advocate-General, Balochistan and examined the available record of the case. Admittedly, the trial of the petitioner was conducted by the Special Judge and murder reference was answered in affirmative by the High Court in his absence. The only question involved herein is as to whether the trial against the petitioner in absentia was validly and legally conducted. The said question came up for determination before this Court in the case of Mir Ikhlaq Ahmad v. State Criminal Appeal No.682 of 2006 and it was held that the trial of the accused in absentia is violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of Anti-Terrorism Act, 1997. It appears appropriate to reproduce operative portion of the judgment which reads as follows:- "

13. In the case in hand, the trial of the appellants was conducted by the Special Judge and murder reference was answered in affirmative by the High Court in their absence. Now the question arises as to whether the trial against the appellants, in absentia, was validly and legally conducted. Article 9 of the Constitution of Islamic Republic of Pakistan envisages that no person shall be deprived of life or liberty save in accordance with law. Article 10(1) of the Constitution; inter alia, provides that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of his choice. Subsection (11-A) to section 10 of the Anti-Terrorism Act, 1997, which was inserted vide Ordinance No.XIII of 1999, dated 27-8-1999 and Ordinance No.IV of 1999; dated 27-4-1999, states that an accused person shall not be denied the right to consult or defend by a legal practitioner of his own choice. The aforenoted provision of law is in line with Article 10(1) of the Constitution and in fact reiterates the said Article of the Constitution in letter and spirit. The appellants were absconding at the relevant point of time, therefore, they, undoubtedly were denied the right to defend themselves and deprived the right to consult or defend by legal practitioner. The above question came up for determination before the Lahore High Court and the learned Division Bench of the said Court in the case reported as Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554 has held that the trial of an accused person in absentia is violative of Article 10 of the Constitution of Islamic Republic of Pakistan. It may be noted that the said judgment was assailed by the Government of Punjab in Civil Appeal No.680 of 1989 and this Court in a case report as Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 dismissed the appeal and upheld the judgment. Another Division Bench of the Lahore High Court in a case reported as Qari Abdul Hayee and another v. The State 2005 YLR 1865 while relying upon the aforesaid cases of Zia Ullah Khan and others and Government of Punjab through Secretary, Home Department (ibid) has also taken the similar view.

14. 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 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."

5. As the trial of the petitioner was conducted in absentia and without providing him opportunity of hearing, therefore, for the reasons recorded in the case of Mir Ikhlaq Ahmad (ibid), we hold that the judgments, convictions and sentences rendered by both the Courts in the absence of the petitioner, to his extent, are not sustainable under the law and violative of the provisions of the Constitution, which necessitated retrial of the case.

6. In view of the above, we allow this petition and convert into appeal, which is hereby accepted. Resultantly, the impugned judgment of the High Court is set aside and the conviction and sentence awarded to the petitioner by the trial Court and maintained by the High Court is also set aside. The case is remanded to the trial Court for fresh trial of the petitioner in accordance with law. N.H.Q./M-137/SC Case remanded.