IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Criminal Appeal No. D- 39 of 2020.
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar Ali Sangi.
2. Bashir.
3. Meenhon alias Shah Gul, through Mr. Saeed Ahmed Bijrani, Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Dates of hearing/
decision: 25.11.2020.
Date of the reasons: 30-11-2020.
JUDGMENT
Zulfiqar Ali Sangi, J-. Through this criminal appeal, appellants Nazir Ahmed son of Kandal, 2. Bashir son of Khuda Bux and 3. Meenhon alias Shah Gul son of Bakhtiar alias Allah Bux have impugned the judgment dated 20.05.2015, passed by learned Judge, Anti-Terrorism Court, Kashmore @ Kandhkot, in Special case No.02/2014, re; St. v. Gaman, arisen out of Crime No.03/2014 of Police-station B-Section Kandhkot whereby the appellants were convicted and sentenced for offences under Section 21-L of Anti-Terrorism Act, 1997. The appellants were sentenced for five years each.
2. Appellants being aggrieved and dis-satisfied against their conviction and sentence recorded in their absentia surrendered before this Court by filing captioned appeal. The appellants were taken into custody and remanded to jail.
3. The facts of the prosecution case are that on 03.01.2014 complainant Tahir Ahmed Khoso appeared at P.S B-Section and reported the matter to the effect that on fateful day he alongwith his cousins Zahid Hussain and Imtiaz Ahmed were standing at their fish-farm situated near village Munir Ahmed Khoso, when thirteen accused persons attacked upon them; out of them the complainant party identified eight persons who were nominated in the F.I.R while five were shown as unknown; they were duly armed with deadly weapons. It was further stated in the F.I.R that accusedSaindad alias Mushki fired rocket launcher upon them and rest of accused Liaquat, Rawaat alias Raho, Sher Muhammad, Anwar Ali, Sultan alias Jurio, Illimuddin, Faizoo, Sajan alias Ghato alongwith five unidentified accused made straight firing with G-3 rifles, kalashnikovs and guns upon them with intention to kill them, but they saved themselves by falling on the ground. The complainant party due to fear remained silent and after firing all the accused fled away from the scene. After departure of accused persons the complainant party came to know that the gang of culprit Raheem Dad Muhammadani have also attacked upon village Deedar Khan Khoso with rocket launcher, resulting close relative of complainant Asif Ali Khoso received injuries who succumbed to injuries. Thereafter, the complainant party remained busy in the funeral ceremony of their close relative Asif Ali Khoso and thereafter the complainant went to police-station on 05.01.2014 and lodged report to the above effect with further addition that since complainant party refused to pay “Bhatta” to the accused persons, therefore, they have made attack.
4. During course of investigation none of the accused nominated in the F.I.R was arrested as such police filed challan in terms of Section 512 Cr.P.C showing all the accused as absconders and NBWs were issued against all of them by the learned trial Court.
5. Police submitted supplementary challan on 12.2.2014 against accused Meenhon Khan alias Shah Gul and after completing necessary formalities against rest of absconding accused they were declared as proclaimed offenders and case was ordered to proceed in their absentia under Section 512 Cr.P.C. It appears from the record that on 07.4.2014 another supplementary challan was filed against accused Gaman. However, both the accused jumped bail on 13.8.2014. Later-on accused Gaman was produced by the surety, therefore, case against him was proceeded while rest of the accused were tried in absentia.
6. After framing the charge the prosecution examined PW-1 Tahir Ahmed Khoso at Ex.21, he produced F.I.R at Ex.21-A. PW-2 Imtiaz Ahmed Khoso was examined at Ex.22. PW-3 Zahid Hussain Khoso at Ex.23. PW-4 Shop keeper/ mashir Muhammad Afzal Khoso was examined at Ex.24, he produced memo of vardat and memo of arrest of accused Meenhon at Ex.24-A to Ex.24-B respectively. PW-5 ASI Muhammad Siddique Soomro was examined at Ex.25. PW-6 SHO Hussain Ali Shahani was examined at Ex.26, he produced memo of arrest of accused Gaman at Ex.26-A. PW-7 I.O Abdul Haq Qureshi was examined at Ex.27, he produced departure roznamcha entry; copy of letter addressed to S.S.P Kashmore @ Kandhkot and Technical Report at Ex.27-A to 27-C respectively. Thereafter, prosecution side was closed at Ex.29.
7. The trial Court recorded statement of accused Gaman under Section 342 Cr.P.C at Ex.30, in which he claimed false implication in this case and denied the prosecution case. The learned trial Court after assessment of the evidence by judgment dated 20.5.2015 convicted the accused the absconding accused Saindad alias Mushki son of Dhani Bux alias Bux, Liaquat son of Alam, Rawaat alias Raho son of Bakhtiaro, Sher Muhammad alias Sher son of Gelo, Anwar Ali son of Mundost, Sultan alias Jurio son of Illimuddin, Faizoo son of Gelo and Sajan alias Ghato son of Billand all by caste Mohammadani in their absentia under Section 265-H (2) Cr.P.C. and sentenced them for an offence under section 324 read with section 149 P.P.C to undergo imprisonment for 10 years and fine Rs.50,000/- each and in default to undergo S.I for six months more. They were also convicted under section 387 read with section 149 P.P.C to undergo R.I for 05 years and to pay fine Rs.5000/- each in default to undergo S.I three months more and were also convicted under section 7 (b) Anti-Terrorism Act, 1997 to undergo R.I for 10 years and to pay fine Rs.5000/- each n default to undergo R.I three months more, However acquitted accused Gaman including present appellants in their absentia in main case; and the appellants were convicted under Section 21-L of Anti-Terrorism Act, 1997, and sentenced them for five years R.I as stated above. Hence, this appeal is filed.
8. Learned counsel for the appellants mainly contended that conviction of the appellants passed by learned Judge, ATC under section 21-L of Anti-Terrorism Act in their absentia was violative of Article 10-A of Constitution of Islamic Republic of Pakistan, 1973; that appellant has already been acquitted in the main offences under sections 324, 387, 148, 149 P.P.C, 3/4 Explosive Act and 6/7 of Anti-Terrorism Act, 1997; that the trial Court recorded conviction of the appellants under Section 21-L of Anti-Terrorism Act, 1997, without framing charge and recording evidence. Learned counsel further contended 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 the learned counsel placed his reliance 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).
9. Learned Addl. 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.
10. We have heard learned counsel for the parties and perused the record minutely with their able assistance.
11. Record reflects that proceedings under Section 87 and 88, Cr.P.C were initiated for declaring the appellants/ accused as proclaimed offenders for the purpose of proceedings with the case in absentia. Thereafter, charge was framed against the appellants in the main offences in their absence. After the assessment of evidence accused Gaman alongwith other absconders including the present appellants were acquitted under Section 265-H (2) P.P.C. By recording such acquittal the learned trial Court convicted and sentenced the appellants for an offence punishable under Section 21-L of Anti-Terrorism Act, 1997, as is detailed above. For ready reference Section 21-L of Anti-Terrorism Act, 1997, is reproduced as under:
“21-L. Punishment for an Absconder.- Whenever being accused of an offence under this Act, absconds and avoids arrest or evades appearance before any inquiry, investigation or Court proceeding or conceals himself, and obstructs the course of justice, shall be liable to imprisonment for a term of not less than six months and not more than five years or with fine or with both.”
12. Record further reveals that before recording conviction, no charge was framed against the appellants 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 appellants under section 21-L of the ATA, 1997 in their absentia. The procedure adopted by the trial Court was absolutely illegal.
13. No doubt, the appellants have 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 by the trial Court cannot file appeal without filing application under section 19(12) of ATA, 1997.Reliance is placed upon the cases of Mir Ikhlaq Ahmed and another v. The State (2008 SCMR 951), Ali Hassan v. The State (2009 MLD Karachi 1198), Khanzado alias Ketoo Sabzoi v. The State (2015 PCr.LJ Sindh 1561) and unreported Judgment dated 13.08.2015 in Criminal Appeal No.D-38 of 2015 (Amanullah Brohi v. The State). The relevant portion of one of the above referred cases viz. Ali Hassan v. The State (2009 MLD Karachi 1198) is reproduced as under:-
"In law there are two options available to a person convicted in absentia. He can request the trial Court to set aside his conviction under section 19(12) of the Anti-Terrorism Act, 1997, by showing that he did not abscond and can also file appeal under section 25 ibid. Filing of application under section 19(2) ibid is not an indispensable condition for filing appeal under section 25 ibid. Powers of the appellate Court are wider than the powers of the trial Court in the matters of setting aside conviction in absentia. The trial Court after setting aside the conviction shall proceed to try the accused in his presence; while the appellate Court after setting aside the conviction may remand the case to the trial Court for fresh trial or may even acquit him on merits. If a case is fit for acquittal on merits, it will be futile to conduct fresh trial. If a person convicted in absentia is entitled to acquittal on merits, he cannot be forced to undergo the botheration of trial. Under section 25 ibid, there is nothing to suggest that a person convicted and sentenced in absentia cannot file appeal without first making application under section 19(2) ibid."
14. It is the matter of record that appellantshave been acquitted in their absentia in the main offences during the trial of co-accused Gaman, mainly for the following reasons. Relevant paragraphs of judgment is reproduced as under:
“In view of my findings with reasons arrived at points No.1 to 3, I have reached to the conclusion that there is consistent and persistent evidence on the record, the prosecution has proved its case against nominated absconding accused Saindad alias Mushki son of Dhani Bux alias Bux, Liaquat son of Alam, Rawaat alias Raho son of Bakhtiaro, Sher Muhammad alias Sher son of Gelo, Anwar Ali son of Mundost, Sultan alias Jurio son of Illimuddin, Faizoo son of Gelo and Sajan alias Ghato son of Billand all by caste Mohammadani, therefore, there is sufficient evidence to award them punishment for an offence under Section 324, 387, 148, 149 P.P.C read with section 7 (b) Anti-Terrorism Act, 1997. I therefore, convict nominated absconding accused Saindad alias Mushki son of Dhani Bux alias Bux, Liaquat son of Alam, Rawaat alias Raho son of Bakhtiaro, Sher Muhammad alias Sher son of Gelo, Anwar Ali son of Mundost, Sultan alias Jurio son of Illimuddin, Faizoo son of Gelo and Sajan alias Ghato son of Billand all by caste Mohammadani in their absentia under Section 265-H (2) Cr.P.C. and sentenced them for an offence under section 324 read with section 149 P.P.C to undergo imprisonment for 10 years and fine Rs.50,000/- each and in default to undergo S.I for six months more. I also convict them under section 387 read with section 149 P.P.C to undergo R.I for 05 years and to pay fine Rs.5000/- each in default to undergo S.I three months more and I also convict them under section 7 (b) Anti-Terrorism Act, 1997 to undergo R.I for 10 years and to pay fine Rs.5000/- each n default to undergo R.I three months more.
Moreover, the present accused Gaman son of Tagio and Bashir son of Khuda Bux alias Bux, Meenhon Khan alias Shah Gul son of Bakhtiar alias Allah Rakhio are acquitted under Section 265-H (II) Cr.P.C of the charge. However, I am satisfied with deliberate absconding of accused Sain Dad alias Mushki son of Dhani Bux alias Bux, Liaquat son of Alim, Rawat alia Rho son of Bakhtiyaro, Sher Muhammad alias Shero son of Geelo, Anwar Ali son of Mundost, Sultan alias Jurio son of Illimuddin, Faizoo son of Gelo, Sajan alias Ghato son of Billand, Shahal son of Illimuddin, Nazeer Ahmed son of Kandal, Bashir son of Khuda Bux and Meenhon Khan alias Shah Gul son of Bakhtiar alias Allah Rakhio, therefore, they are convicted under Section 21-L of the Anti-Terrorism Act, 1997 and sentenced to five years each. The accused Gaman present on bail, he is set on liberty, his bail bond stand cancelled and surety discharged. Issue NBW against absconding accused for the period of one year through S.S.P, Kashmore @ Kandhkot. All the sentences shall run concurrently. The office is directed to prospect the R& Ps to Hon’ble High Court of Sindh, Circuit Court, Larkana, immediacy. The copy of judgment be delivered to the S.P.P appearing on behalf of the State.”
15. Learned advocate for the appellants 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 appellants. Learned Addl.P.G has conceded to contentions of learned advocate for the appellants. 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:
"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."
16. 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 appellants and conviction of the appellants for offence under Section 21-L of Anti-Terrorism Act, 1997 in absentia, recorded by the learned Special Judge, Anti-Terrorism Court Kashmore @ Kandhkot, in Special Case No.02/2014, vide judgment dated 20.5.2015 was violative of Articles 9 & 10 of Constitution of 1973.
17. Thus, for the foregoing reasons, instant appeal was allowed vide short order dated 25.11.2020, whereby conviction and sentence recorded against the appellants for offence under Section 21-L of the Anti-Terrorism Act, 1997 by judgment dated 20.5.2015 was set-aside and appellantswere acquitted of the charge; the appellantswere ordered to be released forthwith, if they were not required in any other case. These are the reasons of our short order dated 25.11.2020.
Judge
Judge