THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Crl. Appeal No.D-34 of 2020
Present :
Naimatullah Phulpoto, J.
Zulfiqar Ali Sangi, J.
Appellant : Zubair Jakhrani, through M/S Habibullah G. Ghouri & Faiz Muhammad Larik, advocates.
Respondent : The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 10.11.2020.
Date of decision: 10.11.2020.
J U D G M E N T .
Naimatullah Phulpoto, J- This Criminal Appeal is directed against the judgment dated.06.04.2012, passed by the learned Judge Anti-Terrorism Court, Jacobabad in Special Case No.28 of 2011 re: State v. Dost Ali and others, whereby appellant was acquitted in his absentia for main offences under section 365-A, PPC R/w Section 6 & 7 of the Anti-Terrorism Act, 1997. However, appellant was convicted under section 21-L of the Anti-Terrorism Act, 1997 and sentenced to five years R.I. His movable and immovable properties were ordered to be forfeited and perpetual warrant was ordered to be issued against him.
2. Appellant being aggrieved and dissatisfied against his conviction and sentence recorded in his absentia surrendered before this Court by filing instant Crl. Appeal No.D-34 of 2020. Appellant was taken into custody and remanded to jail.
3. Brief facts of the impugned judgment are as under :
"The FIR of this incident was lodged by complainant Abdul Jabbar Sarki on 21.04.2011 at 1730 hours, stating therein that on the day of this incident i.e.21.04.2011, he, his brother Muhammad Ali, cousin Abdul Raheem by motorcycle from Jacobabad started to their village Garhi Hassan. They were near to curve Arz Muhammad on link road leading to Thul, at about, 4.00 a.m, a Prado Car Registration No.13/JCD of black colour crossed and stopped, from it driver Bakhshan Marhato, Dost Ali @ Goro Jakhrani having T.T Pistols, Kareem Bux @ Karoo Jakhrani, Mehrab Bangulani and two unknown persons with open faces having Kalashanicovs came down, directed their weapons at complainant party to stop motorcycle, due to fear complainant stopped it. All the accused forcibly started dragging complainant to the said car, told his brother Ali Muhammad for arranging amount for his release. In the meantime, complainant saw a police mobile coming there. The accused Bakhshan driver of Prado started car went towards Jacobabad, the accused Dost Ali, Kareem Bux, Mehrab and unknown persons, dragged complainant by foot and went at the distance of about 100 paces. The police Mobile also had arrived there and stopped there, the witnesses gave facts to police and police started chasing complainant and accused persons started firing at them, during course of which accused persons left complainant. The firing was still going on in between the accused and police party, the complainant along with witnesses appeared at police station and lodged FIR.
4. Case proceeded against accused Dost Ali and Kareem Bux. Absconding accused Mehrab, Bakhshan Marhato and Zubair (appellant) were declared proclaimed offenders. Proceedings under section 87 & 88, Cr.P.C were concluded against them. The trial Court framed charge against accused Dost Ali and Kareem Bux at Ex-8 and recorded evidence of the prosecution witnesses. Thereafter, prosecution side was closed at Ex-13. Trial Court recorded statements of the accused Dost Ali and Kareem Bux under section 342, Cr.P.C, in which they claimed false implication in this case and denied the prosecution case. The trial Court after assessment of the evidence by judgment dated.06.04.2012, acquitted the accused Dost Ali and Kareem Bux including present appellant in his absentia in main case. However, appellant was convicted under section 21-L of Anti-Terrorism Act 1997 and sentenced to five years R.I as stated above. Hence, this appeal is filed.
5. Mr. Habibullah G. Ghouri, learned advocate for the appellant mainly contended that conviction of the appellant passed by learned Judge, ATC under section 21-L of Anti-Terrorism Act in his absentia was violative of Article 10-A of Constitution of Islamic Republic of Pakistan, 1973; that appellant has already been acquitted in the main offence under section 365-A, PPC; that the trial Court recorded conviction of the appellant under section 21-L of Anti-Terrorism Act, 1997, without framing charge and recording evidence. It is further submitted that the conviction of accused in absentia is repugnant to the Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his contentions reliance is placed upon the unreported judgment of this Court passed in Crl. Appeal No.D-14 of 2016 dated.17.05.2016, Haji Muhammad v. The State (PLD 2003 Supreme Court 262) and Arbab Khan v. The State (2010 SCMR 755).
6. Mr. Muhammad Noonari, D.P.G, appearing for the State did not support the impugned judgment passed by the trial Court mainly on the ground that conviction in absentia of accused has already been declared by the Hon'ble Supreme Court in the case of Arbab Khan v. The State (2010 SCMR 755) as violative of the Constitution of Islamic Republic of Pakistan, 1973.
7. We have heard learned counsel for the parties and perused the record minutely.
8. Record reflects that proceedings under Section 87 and 88, Cr.P.C were initiated for declaring the appellant/accused and two others as proclaimed offenders for the purpose of proceedings with the case in absentia. Thereafter, charge was framed against the appellant in the main offences in his absence along with acquitted accused Dost Ali and another. Record further reveals that before recording conviction, no charge was framed against the appellant under Section 21-L of the ATA, 1997. Trial Court was required to satisfy itself according to Section 19(10) of the said Act, 1997 that absence of the accused was deliberate. Trial Court had failed to follow the relevant provisions of law strictly. Learned trial Judge has sentenced and convicted the appellant under section 21-L of the ATA, 1997 in his absentia. The procedure adopted by the trial Court was absolutely illegal.
9. No doubt, appellant has approached this Court directly without filing an application under section 19(12) of Anti-Terrorism Act, 1997 before trial Court. It is observed that under Section 25 of Anti-Terrorism Act, 1997, there is no bar that a person convicted and sentenced in absentia under section 21-L of Anti-Terrorism Act, 1997 before trial Court cannot file appeal without filing application under section 19(12) of ATA, 1997. It is the matter of record that appellant has been acquitted in his absentia in the main offence under section 365-A, PPC during the trial of co-accused Dost Ali and Kareem Bux, mainly for the following reasons. Relevant paragraph of judgment is reproduced as under :
"10. Point No 3.
From the above discussion on Points No.1 and 2, I am of the humble opinion, that the prosecution has failed to bring home charge against the accused facing trial and absconding accused to connect them in the commission for this offence. The evidence of material prosecution witnesses do not implicate any accused to hold them responsible that they on the day of this incident had kidnapped complainant Abdul Jabbar Lashari for ransom and created havoc, terror, or sense of insecurity in the minds of people of locality, as such I am of the humble opinion to extend benefit of doubt to the accused. As a result the accused facing trial, namely Dost Ali Jiskani and Kareem Bux and the absconding accused Bakhshan Marhato, Mehrab Bangulani and Zubair Jakhrani, are extended benefit of doubt and they are acquitted Under Section 265-H(1), Cr.P.C, of the above charge. The accused Dost Ali and Kareem Bux, both Jakhrani by caste are present on bail, their bail bonds are cancelled and their sureties are discharged.
11. From the above, I conclude that it appears that accused 1.Bakhshan son of unknown Marhato, 2.Mehrab son of Shakar Bangulani, and Zubair son of Baqa Muhammad Jakhrani, are absconding in this case. I am satisfied with their deliberate abscondence, therefore, each of them is convicted Under Section 21-L of the Anti-terrorism Act, 1997 and each of them is sentenced for (FIVE YEARS) with forfeiture of their movable and immovable property, as such perpetual warrants be issued against these absconding accused.
12. The record and proceedings of the case be transmitted to the Honourable High Court of Sindh, Circuit Court Larkana, within (03) days.
10. Learned advocate for the appellant has read out the entire prosecution evidence. Prosecution has failed to prove the case under section 21-L of the Anti-Terrorism Act, 1997 against the appellant. Learned D.P.G has conceded to contentions of learned advocate for the appellant. As regards to the legal position, regarding conviction of the appellant in his absentia, the Hon'ble Supreme Court in the case of Arbab Khan v. The State (2010 SCMR 755), was pleased to hold that trial in absentia was violative of Articles 9 & 10(1) of the Constitution and S.10(11-A) of Anti-Terrorism Act 1997. Relevant portion is reproduced as under :
"6. This Court in the above unreported decision had held that the trial in absentia and conviction under section 31-A of the Ordinance was violative of Article 9 of the Constitution. Relying upon the said decision, the learned High Court of Sindh in the cases of Mst. Mubarak Salman and Noor Muhammad Khatti (supra) had also formed the similar opinion and further added that the trial Court did not adopt correct procedure of framing the charge, recording the evidence and discussing the same. Thus the trial in absentia without adopting the legal procedure for trial of such offence is violative of Article 9 of the Constitution . Further in the case of Ikhlaq Ahmad v. State 2008 SCMR 951 this Court set aside the conviction and sentence passed by the Special Judge, Anti-Terrorism Court, in a case of murder in which the accused were tried in absentia as they were absconders and it was held that trial in absentia was violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of the Act. The relevant portion of the judgment reads as under :-
"In view of the above, we feel that the trial of the appellants, in absentia, undertaken by the Special Judge, Anti-Terrorism Court, was violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of the Anti-Terrorism Act, 1997, thus, cannot be allowed to sustain. Furthermore, the appellants were not afforded any opportunity of hearing and thus, they were condemned unheard which is contrary to the principle of natural justice. We are convinced that the judgments, convictions and sentences rendered and awarded by both the Courts, in the absence of the appellants, to their extent are not sustainable under the law and violative of the Constitution and law, which has necessitated the re-trial of the case."
7. In the light of above discussion, the conviction and sentence awarded to the appellant under the impugned judgment and that of the trial Court are set aside. However, this judgment shall not be construed to preclude the trial Court from taking any proceedings in accordance with law and adopt legal procedure for trial of offence punishable under section 21-L of the Act. Consequently, the appeal is allowed.
11. For the above stated reasons, while respectfully relying upon the above cited authorities, we have come to the conclusion that prosecution failed to establish its case against the appellant and conviction of the appellant for offence under section 21-L of Anti-Terrorism Act, 1997 in absentia, recorded by the learned Special Judge, Anti-Terrorism Court Jacobabad, in Special Case No.28 of 2011, vide judgment dated.06.04.2012 was violative of Articles 9 & 10 of Constitution of 1973.
12. Thus for the foregoing reasons, instant appeal is allowed. As a result whereof conviction and sentence recorded against the appellant for offence under section 21-L of the Anti-Terrorism Act, 1997 by judgment dated.06.04.2012 are set aside and appellant is acquitted of the charge. Appellant is ordered to be released forthwith, if he is not required in any other case. These are the reasons of our short order dated.10.11.2020.
Judge
Judge