1998 P Cr (PLP)

MUHAMMAD NASEEM CHAUDHRI, J.

On the basis of the registration of F. I. R. No. 141, dated 6-9-1991 at Police Station Batapur, District Lahore the accused persons were tried for the commission of the offences under section 302/324/148/149 of the Pakistan Penal Code. Abdul Majeed alias Fauji and Hafiz Sultan Ahmad defended themselves. Karamat Ali petitioner was arrested on 7-10-1991 while in an injured condition who made good his escape from Services Hospital, Lahore Where he was under treatment. Karamat Ali, Liaquat Ali and Muhammad Ishfaq were declared as the fugitive of law and they were tried in absentia. Karamat Ali petitioner was convicted and sentenced by the Special Court, Suppression of Terrorist Activities, Lahore to death on two counts and to fine of Rs.50,000 on each count or in default to undergo R.I. for a period of two years under section 302/ 149 of the Pakistan Penal Code, to seven years R.I. and to fine of Rs.20,000 or in default to further undergo R.I. for one year under section 324/149, Pakistan Penal Code and to one year's R.I. and to fine of Rs.2,000 or in default to undergo three months' R.I. under section 148 of the Pakistan Penal Code.

2. It is proper to express that each of the under trials Abdul Majeed alias Fauji and Hafiz Sultan Ahmad as well as two other absconders namely Liaquat Ali and Muhammad Ashfaq were also convicted and sentenced as narrated above.

3. Karamat Ali petitioner got himself arrested on 15-11-1996 who filed this writ petition on 20-1-1997 wherein he assailed the vires of the impugned judgment passed in absentia on the ground that he has been deprived of getting himself defended who has been condemned unheard, that the procedure adopted to conclude the trial qua him was manifestly illegal and that his conviction in absentia was void. This writ petition has been resisted by the State.

4. We have heard the learned counsel for Karamat Ali petitioner as well as the learned State Counsels On the command of the Supreme Court of Pakistan incorporated in the; ruling printed as Government of the Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 the foremost assertion of the learned counsel for the petitioner is that the petitioner has been tried and convicted in absentia, that the impugned judgment to his extent is coram non judice and that the impugned judgment cannot be sustained thereof. He continued that the impugned judgment to the extent of Karamat Ali petitioner being void and illegal and trial shall have to be held afresh so that he is able to defend himself in accordance with law. Learned counsel for the State has laid the emphasis that the trial could be held in the absence of Karamat Ali petitioner and that he has rightly been convicted in absentia. We are of the view that if any accused becomes a fugitive of law the trial can continue to the extent of the accused who have been arrested and have been directed to defend themselves. The limited controversy to be resolved is as to whether the trial against the absconding accused can be conducted after the submission of the challan in his absence and can he be convicted in absentia. We are fortified by the aforesaid judgment of the Supreme Court of Pakistan and seeking the advice from the same we express that the holding of the trial in absentia without providing the opportunity of defence to an accused who even if becomes a fugitive of law is against the canons of justice and against the principle that nobody can be condemned unheard. This is the crux of the matter to make us hold that Karamat Ali petitioner has rightly contended that the trial against him has not been held and concluded in accordance with law and that the judgment holding him criminally liable in the matter is illegal, void and inoperative to his extent. Thus, his Constitutional right stands infringed.

6. For what has been said above, we accept this writ petition filed by Karamat Ali, set aside the sentence and conviction to this extent recorded in the impugned judgment and remand the matter to the learned trial Court for holding the trial afresh in accordance with law in his presence. 7.Karamat Ali petitioner is stated to be in jail and shall be treated as an under trial prisoner.

8. Under the Notification dated 26-9-1996 the learned Sessions Judge/learned Additional Sessions Judge-I, Lahore are the Special Judges under the Suppression of Terrorist Activities (Special Courts) Act, 1975. We pass the order that the trial shall be held by the learned Sessions Judge, Lahore. The office shall send a copy of this judgment to the learned Sessions Judge, Lahore for placing the same before him on 9-3-1998 so that after collecting the relevant record and summoning Karamat Ali petitioner the trial is started. H.B.T./K-55/L Petition accepted.