IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-12 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                  :     11.07.2018                  

Date of decision                :     11.07.2018                              

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) He is convicted and sentenced to suffer R.I for imprisonment of life and to pay fine of Rs.2,00,000/- each (two lacs each) compensation under section 544-A Cr.PC to the LRs of deceased ASI Qamaruddin, PC Zulfiqar Ali and PC Muhammad Mithal.

(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, after having formed an unlawful assembly and in prosecution of their common object, deterred the police party of P.S Aqil, which was led by SIP Khadim Hussain Umrani, from discharging their lawful duty as public servants by making fires at them with intention to commit their murder, as result of that firing ASI Qamaruddin, PC Zulfiqar Ali and PC Muhammad Mithal, 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 11.11.2012) 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, which was submitted by the police before learned trial Court, he after usual observance of the formalities was declared to be proclaimed offender. No charge was framed against the appellant and he was tried and convicted in 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