2011 MLD 867 (PLP)

SYED ZAKIR HUSSAIN, J.

This criminal appeal has been preferred by the appellant Bashir Ahmed Chang against the common judgment dated 24-8-2004, passed by the learned Judge, Anti-Terrorism Court No. III, Sukkur and Larkana Division @a Sukkur, in the cases bearing ATC Cases Nos.79, 80 and 89 of 2002, whereby the appellant was convicted in absentia in terms of the provisions of subsection (10) of section 19, of the Anti-Terrorism Act, 1997, in the case bearing Crime No. 58 of 2002 of Police Station Lakhi Ghulam Shah, District Shikarpur, lodged therewith for the offences punishable under sections 365-A, 342, 344, 120, 120-B, 109, 148 and 149 P.P.C.; 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 7 of the Anti-Terrorism Act, 1997, together with other charge-sheeted persons, and ordered to suffer sentence for the offences punishable under sections 365-A, 148, 149, P.P.C. for life imprisonment and so also the appellant was convicted and sentenced under section 7(e) of the Anti-Terrorism Act, 1997, to suffer for life imprisonment, plus his movable and immovable properties were ordered to stand forfeited. The appellant has now challenged the said findings by having surrendered himself before this Court as the time for the remedy provided in a case of absentia conviction by the same Court, in terms of subsection (12) of section 19 of the Anti-Terrorism Act, 1997, is already gone. He has prayed that the said findings be set aside and he be acquitted of the charge of the case as a whole on the facts and grounds mentioned in the appeal.

2. The notice of this appeal has been waived by Mr. Naimatullah Bhurgri, the State counsel. With the consent of the parties, the matter is heard and the Court proceeded to dispose of the appeal.

3. The learned counsel argued that other convicts of the same case had already challenged their conviction and the judgment went under adjudication in their respective Appeals bearing Nos. D-77/2004, 7, 8 and 17 of 2005, which stood concluded by the common judgment of the Division Bench of this Court dated 15-12-2005. The said convicts/ appellants were respectively acquitted in the said appeals, for the reasons incorporated in nutshell in para 15 of the judgment; which is reproduced hereunder:-- "After considering the material, available on the record we are of the considered view that the prosecution has failed to prove the case in respect of offences punishable under sections 148, 365-A and 149, P.P.C., read with section 7(e) of Anti-Terrorism Act, 1997, therefore, the appellants are liable to'. be acquitted from the said offences."

4. The learned counsel, therefore, states that the case on merits was held to have not been established beyond shadow of any reasonable doubt in case of the appellants who had faced the trial, whereas the reasoning given in the judgment by this Court carries references including the role or contradictions thereagainst appearing in the evidence led on the part of the prosecution against the matter of payment of ransom, which involves the present appellant; and such references of the judgment show that the evidence to the very factum of such involvement of the appellant was also discussed and held doubtful. The relevant para of the judgment is reproduced as under: "The second aspect of the case is in respect of demand of payment of ransom money. The case of the prosecution, as set up earlier, is that no ransom amount was paid but on the contrary it was the ease that the complainant was released as his relatives were searching for the complainant by taking Holy Quran. In the evidence the complainant stated that accused Bashir Chang had received Rs.850,000 from P.W.2 and thereafter he was released. P.W.2 stated that after the incident the brother of accused Niaz Chang namely Bashir Ahmed approached him for the release of the complainant subject to payment of ransom amount of Rs.800,

000. Thereafter he paid ransom amount of Rs.800,000 to co-accused Bashir Ahmed in presence of P.W. Ghulam Muhammad Ghanghro and Iftikhar Soomro. After payment of ransom amount his cousin complainant Imdad Ali was released after three days. P.W.9 Ghulam Muhammad stated that after the abduction of the complainant; he, P.Ws. Saffar and Iftikhar contacted accused Bashir Ahmed Chang, the brother of accused Niaz Chang, and then they paid Rs.850,000 to him and thereafter the complainant was released. Thus, the evidence of both these witnesses are contradictory to each other on material aspects of the case as P.W.2. disclosed that accused Bashir Ahmed approached him for the release of the complainant but P.W.9. disclosed that he, P.W.2 and Iftikhar Soomro contacted accused Bashir Ahmed for the release of the complainant. As regards the payment of amount, both the witnesses gave different amount, as according to P.W.2, Rs.800,000 were paid whereas according to P.W.9 and complainant Rs.850,000 were paid. Such facts were not disclosed by the P.Ws. in their 161 Cr.P.C. statements as they were silent with regard to the payment of ransom amount. Such facts were brought to their knowledge by drawing their attention to their 161, Cr.P.C. statements and proved from the statements of Investigating Officer. However, P.W.9 admitted that he had not disclosed such facts in his 161, Cr.P.C. statement. As such, on this account also the witnesses have improved their statements from the stand earlier taken by them in their 161, Cr.P.C. statements. Therefore, they have made their own statements doubtful. Both the witnesses further disclosed that the bus was secured by the police on the next day of incident but no evidence has been led by the prosecution to show that the bus was secured by the police."

5. The learned counsel states that it is an established position that the case as a whole is doubtful as is observed by the Division Bench of this Court by way of its judgment referred to above and the role of the appellant is also un-established and the benefit of doubt; which has already been extended in case of others would also go to the appellant, and that as a matter of legal implication, the appellant stands benefited with the judgment passed by the Division Bench in appeals of the co-convicts.

6. Even otherwise, the perusal of the record shows that the name of the. appellant was disclosed by the co-accused during interrogation and he was neither arrested, nor subjected to interrogation nor was he ever produced before any competent Magistrate for identification parade test through the witnesses and there is no positive incriminating evidence against him on the basis of which the conviction for any offence against him, could be recorded, particularly, when the witnesses have been declared doubtful to material extent and the benefit of such doubtful position of such witnesses is available to the appellant and there will be no use of his fresh trial on same merits, as the result would not be productive in point of prosecution view point and that of law and justice as well and such exercise will be a futile one, rather an abuse of process of law. The learned trial Judge has pronounced conviction against the appellant in absentia in terms of the provisions referred to above, which had already stood held illegal and of no legal effect in the case of Mehram Ali v. The State reported as. 1998 MLD 1411, head-note (AAAA), P. 1510, and therefore, the findings as to conviction and sentence and the judgment impugned in this appeal to such effect, being contrary to law and against the natural justice and? system, are not sustainable. It is well settled principle of law that no one should be condemned unheard and no one will be punished for an act defined as an offence triable by a competent Court of law until a fair trial and chance of being heard are afforded to him. In regard to the propriety of the absentia conviction and sentence the Hon'ble Supreme Court of Pakistan has set a rule in the case of Muhammad Arif v. The State reported as (2008 SCMR 829), as also in another case pertaining to Mir lkhlaque Ahmed and another v. The State reported as (2008 SCMR 951). The relevant head-notes of the same are as follows: 2008 SCMR

829. Trial of accused was conducted in absentia and without providing him opportunity of hearing. Said trial of accused was violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of the Anti-Terrorism Act, 1997. Judgments, convictions and sentences rendered by both the Courts below in the absence of the accused, thus, were not sustainable under the law and necessitated retrial of the case. Petition for leave to appeal was consequently converted into appeal which was accepted and conviction and sentence awarded to accused by the trial Court and maintained by High Court, were set aside and the case was remanded to the trial Court for fresh trial of accused in accordance with law. 2008 SCMR

951. Leave to appeal was granted by Supreme Court to consider; whether in absence of proper service; accused could have been convicted in absentia; whether death penalty awarded to accused commensurated with the gravity of alleged offence as only proverbial Lalkara was attributed to him; whether principle of consistency was violated in case of accused who had been awarded death sentence whereas co-accused having assigned a similar role was acquitted; whether conviction could have been awarded on the basis of interested, partisan and contradictory evidence; and whether evidence which had come on record was appreciated in its true perspective, settled norms of justice and well-entrenched principles qua criminal administration of justice or otherwise. (b) Trial of accused persons in absentia, undertaken by trial Court was violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of Anti-Terrorism Act, 1997, and could not be allowed to sustain. Accused persons were not afforded any opportunity of hearing and thus they were condemned unheard which was contrary to the principles of natural justice. Judgments, convictions and sentences rendered and awarded by both the courts below, in absence of accused persons to their extent were not sustainable under the law same being violative of the Constitution and law, which had necessitated retrial of the case. Supreme Court set aside the conviction and sentence for decision afresh in accordance with law. Appeal was allowed.

7. Another case (Arbab Khan v. The State); reported as 2010 SCMR 755, vide head-notes (b) and (c); thereof, is also on same footings.

8. The learned State counsel does not support the impugned judgment, conviction and sentence of the appellant on the scores discussed above.

9. There is no need to keep the matter pending or of any order remanding the case to the learned trial Court in the case of the appellant, for as stated above, such exercise will be an abuse of process of law, for there will be no conviction, which is the actual purpose of the prosecution in terms of law. In these circumstances', we allow the appeal, set aside the impugned judgment and acquit the appellant from the charge of the case. The impugned judgment carries instructions to the administration for arrest and forfeiture as well as causing the appellant to be fixed for service of the conviction and sentence etc. The same will stand recalled and set aside. The concerned authorities as well as the learned trial Court be informed accordingly. H.B.T./B-7/K?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.