Conviction in absentia

2024 PCrLJ 183 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 11EE(4), 21-L & Fourth Sched.Constitution of Pakistan, Art. 10ACriminal Procedure Code (V of 1898), Ss. 512, 87 & 88Proscription of personConviction in absentiaFair trialScopeAccused placed in Fourth Schedule to the Anti-Terrorism Act, 1997, violating terms of his bond by absconding

Prosecution case was that the name of accused was placed on the list of Fourth Schedule of the Anti-Terrorism Act, 1997, however, by violating the terms and conditions of the surety bonds submitted by him, he proceeded to foreign country and shifted there

Trial of the accused was carried out in his absence

Perusal of the record reflected that the personal attendance of the accused was not dispensed with rather he was tried and convicted in absentia without pleader of his own choice

Right to be represented by counsel of own choice was given by the Constitution of Pakistan, under Art. 10(1)

Further, there was possibility that the accused did not deliberately evade the process of criminal justice system, because his failure to appear before the trial Court, as and when required by the Trial Court, was due to lack of knowledge or some other reasons beyond his control

Even otherwise, if it was assumed that as a means to circumvent the process of criminal justice system, the accused deliberately absconded, even in that eventuality he could not have been tried and convicted in absentia

Rather, Trial Court could merely record evidence against him as envisaged under S. 512, Cr.P.C., after satisfying itself by adhering to the provisions of Ss. 87/88, Cr.P.C., that the accused had, in fact, absconded himself and there was no likelihood of his joining the trial proceedings in near future

Purpose of S. 512, Cr.P.C., was merely to preserve the evidence of a witness for an eventuality where protection was given to the deposition of such witness who might not be alive at the time of appearance of the accused or might have become incapable of giving evidence or attendance of said witness could not be procured without any delay, expense or inconvenience

Trial conducted in absentia violated both constitutional guarantees enshrined under Arts. 4, 8, 9, 10 & 10A of the Constitution of Pakistan, and principles of natural justice

Thus, the trial of the accused in absentia was illegal, unwarranted and of no legal effect

Hence, appeal was allowed by setting aside impugned judgment and case was remanded to the Trial Court for its retrial in accordance with the law.

2022 MLD 317 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 31-A & 32Absconding to avoid service of warrantsConviction in absentiaAccused was convicted and sentenced to three years' imprisonment in his absenceValidity

Held, it was not intention of the Legislature for trial of accused under S.31-A of National Accountability Ordinance, 1999 in absentia

High Court set aside conviction and sentence awarded to accused in his absence and remanded the matter to Trial Court for proceedings in accordance with law

High Court directed that accused was to remain on bail till the conclusion of trial

Appeal was allowed accordingly.

2022 MLD 438 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.365-AAnti-Terrorism Act (XXVII of 1997), Ss. 7& 21-LKidnapping or abduction for ransom, act of terrorismAppreciation of evidenceBenefit of doubtConviction in absentiaScopeAccused were charged for kidnapping the complainant for ransomNo charge was framed against the accused under S.21-L of the Anti-Terrorism Act, 1997 (Act)

Trial Court was required to satisfy itself according to S.19(10) of the said Act, that absence of the accused was deliberate

Trial Court had failed to follow the relevant provisions of law

Trial Court had convicted and sentenced the accused under S.21-L of the Act, in his absentia

Procedure adopted by the Trial Court was absolutely illegal

No doubt, accused had approached the court directly without filing an application under S.19(12) of the Act before Trial Court

However, under S.25 of Anti-Terrorism Act, 1997, there was no bar that a person convicted and sentenced in absentia under S.21-L of Anti-Terrorism Act, 1997, before Trial Court could not file appeal without filing application under S.19(12) of the Act

Record showed that accused had been acquitted in his absentia in the main offence under S.265-A, P.P.C., during the trial of co-accused persons

Circumstances established that the prosecution had failed to establish its case against the accused

Appeal against conviction in absentia was allowed, in circumstances.

2019 PLD 63 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 31-A & 32AppealLimitationConviction in absentia

Accused was convicted under S.31-A of National Accountability Ordinance, 1999 in his absence when he was declared proclaimed offender

Plea raised by authorities was that appeal was time barred

Validity

No opportunity was afforded to accused even otherwise, no evidence was called for by Trial Court and he was convicted only on basis of unserved process which was in sheer violation of S.31-A of National Accountability Ordinance, 1999

Judgment convicting accused was passed in absentia and he had no knowledge of passing of conviction against him therefore, limitation would run from date of gaining knowledge by accused

Moment the accused was arrested and he came to know about his conviction in absentia, he challenged his conviction

High Court set aside conviction and sentence awarded by Trial Court as prosecution had failed to prove that accused deliberately or intentionally evaded or avoided to appear before Trial Court to face trial

Appeal was allowed in circumstances.

2017 MLD 7 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 302(b)Anti-Terrorism Act (XXVII of 1997), S.19(10), (12)Constitution of Pakistan, Arts.9, 10 & 10-AQatl-i-amdAppreciation of evidenceConviction in absentiaRight to fair trial

Accused after having been declared proclaimed offender, had been sentenced to death and application filed by accused under S.19(12) of the Anti-Terrorism Act, 1997, was also dismissed by the Trial Court

Section 19(10) of Anti-Terrorism Act, 1997, which dealt with trial of a proclaimed offender in absentia, stipulated and made it mandatory for the Trial Court to conduct an inquiry in respect of deliberate absence of accused; without fulfilling the direction made therein, no conviction could be sustained

Accused, who was sentenced to death in absentia, could not be arrested and his non-bailable perpetual warrants remained in field

Accused, was subsequently arrested and he submitted application under S.19(12) of Anti-Terrorism Act, 1997, which was dismissed vide impugned order

Contention of accused was that he did not present himself before the court due to lack of information, and not to evade justice deliberately as according to him he was not aware of the fact that a case had been lodged against him

Accused was not convicted according to law, because the pre-requisites of fair trial were not provided to him

Procedure adopted by the Trial Court, was not in accordance with law and Arts.9, 10, 10-A of the Constitution

Right of fair trial was guaranteed under Art.10-A of the Constitution

Trial Court having passed the conviction and recorded the sentence of accused in hasty manner, without appreciating the evidence on record, conviction and sentence of accused, could not be sustained

Impugned judgment passed by the Trial Court was set aside and case was remanded to the Trial Court for trial fresh.

2015 PCrLJ 944 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 302 & 324Anti-Terrorism Act (XXVII of 1997), Ss.19 & 39-BConstitution of Pakistan, Arts.9, 10 & 10-AQatl-i-amd, attempt to commit qatl-i-amdConviction in absentiaAppreciation of evidenceCo-accused were arrested and challanedProcess to the extent of accused was issued and subsequently accused was declared as proclaimed offender

Charge was framed to the extent of accused in absentia, and after recording evidence, he was convicted and sentenced to death

Accused could not be arrested for a long period after pronouncement of judgment

Accused at last was arrested and he filed appeal for setting aside his conviction

Possibility existed that accused did not present himself before the court due to lack of information and not deliberately to evade justice, as according to accused he was not aware of the fact that a case had been lodged against him

Question whether accused was aware about the case, or he was unaware, could not be resolved without leading evidence on that particular point

Accused was not convicted according to law, because the pre-requisites of fair trial were not provided to him

Procedure adopted by the Trial Court, was not in accordance with the law and Arts.9, 10 & 10-A of the Constitution

When no charge was framed and the evidence in respect of wilful absconsion was not led by the prosecution, conviction would be against the norms of justice

Conviction recorded against accused would not be sustainable in circumstances

Appropriate procedure to be adopted was that accused was produced before the court to defend himself on the both charges i.e., wilful absconsion and murder of the deceased

Conviction awarded to accused in absentia being not sustainable, said order was set aside, and matter was remanded to the Special Judge Anti-Terrorism Court for trial of accused afresh.

2015 PCrLJ 1787 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 31-A & 32Constitution of Pakistan, Art. 10-AConviction in absentiaPrinciple of fair trial, applicability ofLimitation for filing appeal against conviction, commencement ofDate of knowledge of conviction

Accused was convicted in absentia by Trial Court vide order dated 2-9-2003, whereas, appeal against such order was filed on 10-9-2015

Plea raised by accused was that on 1-9-2015, when he was sent to jail on judicial remand, only then he got knowledge of order of conviction

Contention of the National Accountability Bureau was that appeal was barred by limitation

Validity

Provisions of S.31-A of National Accountability Ordinance, 1999 were against the mandate of Art. 10-A of the Constitution

Accused did not participate in proceedings in reference filed against him, as such period of limitation was to be computed from the date of knowledge of accused which according to memorandum of appeal was 1-9-2015

High Court set aside the conviction and sentence awarded to accused in his absence

Appeal was allowed.

2013 MLD 1469 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 6(2)(b)(k) & 7(c)(h)Conviction in absentia

Accused persons against whom conviction had been awarded in absentia; and accused who had been shown absconder, and whose case had been kept on dormant, were not present before the Trial Court

No opportunity whatsoever to defend their case on merits was provided to them

Impugned judgment also did not suggest that accused had deliberately avoided the process of the court, or remained wilfully absent from the court

Conviction awarded to accused persons in absentia, were set aside, and case was remanded to the Trial Court to decide the same after providing them proper opportunity of being heard

Accused persons would surrender before the Trial Court and would attend the court on each and every date

During the trial accused persons would remain on bail; if they would misuse the concession of bail, Trial Court would be at liberty to pass appropriate order in accordance with law.