IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-14 of 2018

 

                                                            Present

                                                                      Mr. Justice Rasheed Ahmed Soomro,

         Mr. Justice Irshad Ali Shah,

 

Appellant                             :     Dur Muhammad s/o Muhammad Waris Jatoi

         Through Mr. Habibullah Ghouri, Advocate

 

State                                      :     Mr.Khadim Hussain Khooharo, A.P.G

 

Date of hearing                  :     10.07.2018                  

Date of decision                :     10.07.2018                              

 

J U D G M E N T

 

IRSHAD ALI SHAH. J-, The appellant in his absentia was convicted by learned A.T.A Judge Larkana as under;

(i)                For an offence punishable u/s.324, 34 PPC read with Section 7 of Anti-Terrorism Act, 1997 and sentence him to suffer R.I for ten years and to pay compensation to the victim/injured person to the tune of Rs.30,000/-. In case of default of payment of amount, the accused shall further suffer R.I for six months.

 

(ii)              For an offence punishable u/s.353 PPC and sentence him to suffer R.I for two years.

 

 

2.                    The facts in brief necessary for disposal of instant appeal are that the appellant with rest of the culprits, allegedly assembled adjacent to village Hamzo Jatoi for the purpose of committing dacoity and in that way deterred the police party of P.S Aqil, which was led by SIP Ameer Ali Shah, from discharging their lawful duty as public servants by making fires at them with intention to commit their murder, as result whereof PW/ASI Bashir Ahmed Shah sustained fire shot injury and then appellant with rest of the culprits made their escape good by making aerial firing to create harassment by leaving behind, their associate Ghulam Ali, who died at the spot after sustaining fire shot injuries, for that the present case was registered. On investigation, the challan was submitted by police before learned trial Court, for trial of the appellant and others, wherein the appellant was shown to be absconder. The appellant was tried in his absentia and was convicted by learned trial Court, as stated above, that conviction (through judgment dated 31.01.2011) on arrest the appellant has impugned before this Court by way of instant appeal.

3.                    It is contended by learned counsel for the appellant that the appellant being innocent was involved in this case by the police, otherwise he was having no concern with the alleged incident. The trial of the appellant in his absentia was in violation of fundamental rights and natural justice. By contending so, he sought for remand of the case to learned trial Court for fresh trial of the appellant in accordance with law.  

4.                    Learned A.P.G has recorded no objection to remand of the case to learned trial Court for fresh trial of the appellant in accordance with law.

5.                    We have considered the above arguments and perused the record.

                       

6.                   Admittedly, the appellant was shown to be absconder in the challan-sheet by the police, he after usual observance of the formalities was declared to be proclaimed offender, no charge was framed against him and he was tried in his absentia by learned trial Court. In that situation, the conviction which is recorded against the appellant as              is detailed above, by learned trial Court could not be sustained being violative of principles of natural justice.

7.                    In case of Mir Akhlaq Ahmed and others vs. the State (2008 SCMR-951), it was held that;

“Validity---Trial of accused persons in absentia, undertaken by Trial Court was violative of Arts.9 and 10(1) of the Constitution and S.10(11-A) of Anti-Terrorism Act, 1997, could not be allowed to sustain”.  

                                   

8.                    In view of the facts and reasons discussed above and while relying upon the case law which is discussed above, the conviction recorded against the appellant by learned trial Court could not be sustained, it is set aside. Consequently, the case is remanded to learned trial Court for fresh trial of the appellant in accordance with law.

9.                    The instant appeal is disposed of in above terms.

 

                                                                                                J U D G E

      J U D G E

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