IN THE HIGH
COURT OF SINDH, BENCH AT SUKKUR
Crl. Jail Appeal No.D- 72 of 2019.
Before:-
Mr. Justice Naimatullah
Phulpoto,
Mr.
Justice Abdul Mobeen Lakho.
Appellant: Umedo son of Lal Bux by caste Narejo.
Through Mr. Nusrat Ali Shar
advocate.
The State: Through Zulfiquar
Ali Jatoi, Additional Prosecutor General.
Date of hearing: 03-09-2019
JUDGMENT
Abdul Mobeen
Lakho, J; The appellant Umeedo Narejo through the instant
Crl. Jail Appeal has impugned judgment dated 18-10-2012,
passed by learned Judge Anti-Terrorism Court, Khairpur,
whereby appellant and absconding accused have been convicted u/s 324 r/w
Section 149 P.P.C and sentenced to 10 years R.I and to pay the fine of
Rs.50,000/- each. In case of default in payment of fine, they shall suffer R.I
for six months more. They were further convicted u/s 353 r/w Section 149 P.P.C and
sentenced to suffer 02 years R.I and to pay the fine of
Rs.50,000/- each. In case of default in payment of fine, they shall suffer S.I
for one month more. They were further convicted under section 7/ATA, 1997 and
sentenced to 10 years R.I and to pay fine of Rs.50,000/-
each. In case of default in payment of
fine, they shall suffer further six months R.I more. All the above said
sentenced awarded to present appellant as well as proclaimed offenders were
directed to run consecutively.
2.
Briefly the facts of the case
are that on 02-03-2009 at 2130 hours complainant SIP Maqsood
Raza Manganhar lodged an F.I.R.
alleging therein that on 02-03-2009, he along with his subordinate staff namely
PCs Mujeeb Rehman, Dilbar Ali, Nazeer Ahmed Shah and
PC Khadim Hussain left PS
vide roznamcha entry No.10 at 1500 hours for patrolling on foot. While
patrolling when they reached at Khazir Machine, where
SIP Maqsood Raza Manganhar received spy information that notorious dacoits
namely Mushtaque @ Mustoo Narejo, Himath @ Yaseen Narejo, Ali Gul Narejo, Umedoo
Narejo, Murad Narejo and Mohib @ Shedi Narejo armed were present
in abandoned house situated in village Abul Narejo with intention to commit an offence. On receipt of
such information, complainant above named forwarded the information about the
presence of dacoits to his high-ups. Thereafter, complainant along with his
staff proceeded towards the pointed place, where they reached at about 1700
hours. As soon as the accused persons saw the police party, all the accused
persons started firing directly upon them with intention to commit their murder.
In retaliation, the police party after taking positions also fired upon the
accused persons. During cross firing, complainant and his staff identified the
accused to be Mushtaque @ Mustoo
Narejo, Himath @ Yaseen Narejo, Ali Gul Narejo, Umedoo
Narejo, Murad Narejo and Mohib @ Shedi they all were armed with Kalashnikovs. In the
meantime, during encounter SPO Ripri, SHO Ps TM Khan,
SHO PS Guloo Siyal and SHO
PS Sadiq Kalhoro along with
their respective subordinate staff also arrived at the place of encounter and
they also participated in the encounter which continued for about one and half
hour. Thereafter, all the accused persons succeeded in fleeing away from the
place of incident by taking the benefit of jungle. Complainant party found that
one PC Muhammad Khan had sustained firearm injuries at the hands of accused
persons. The said injured was immediately referred to hospital for medical
treatment and certificate. Ultimately the complainant lodged FIR on behalf of
the State. It was recorded vide Crime No.03/2009, u/s 324, 353, 148, 149 PPC
r/w Section 7 ATA at Police Station Phullu District Khairpur.
3. During
investigation police arrested accused Mohib Shedi and also made efforts to arrest the other nominated
absconding accused persons, but they could not be arrested and on the
conclusion of usual investigation SIO submitted the challan
against accused namely Muhib @ Shedi
@ Shahnawaz Narejo u/s 324,
353, 148, 149 PPC r/w section 7 ATA, co-accused Mushtaque,
Himath @ Yaseen, Umedo, Muradoo and Ali Gul, were shown absconders.
4. The
NBWS against all the absconding accused were issued, but the police failed to
arrest anyone of them. Such statement of process server SIP Nisar
Ahmed was recorded at Ex:02. SIP Nisar
Ahmed submitted in his statement that one of the absconding accused namely Ali Gul Narejo had been murdered in
police encounter on 05-10-2009 within the jurisdiction of PS Gambat and such F.I.R. bearing Crime No. 212/2009 was
lodged which he produced along with his endorsement at Ex:02/A at 02/B
respectively. In view of statement of process server, the proceedings against
absconding accused/dead accused Ali Gul Narejo were abated vide order dated 17-02-2010. Thereafter,
proceedings U/S 87/88 Cr.P.C were also initiated against the remaining
absconding accused persons and in this regard statement of process server ASI
Sultan Ali was recorded at Ex:03. He has produced his endorsement at Ex:3/A to 3/H respectively. The report of proclamation U/s 88
Cr.P.C was also received from concerned Mukhtiarkar in respect of moveable or
immoveable property against the absconding accused which is placed at Ex:4. The
publication in daily three national newspapers against the absconding accused
was also got published and such newspapers are marked at Ex:5
to 5/B respectively. On conclusion of the legal formalities, all the above
named absconding accused were declared as proclaimed offenders and the case was
ordered to be proceeded against them in absentia.
5. Mr.
Abdul Latif Memon Advocate was appointed as an advocate for pauper accused Mohib so also all the proclaimed offenders on the State
expenses to defend the rights of absconding accused in their absence, as
required under the ATA, 1997, vide order at Ex.06.
6. The
charge against the accused persons was framed at Ex.8. To which
accused Mohib
pleaded not guilty and claimed for trial vide Ex.8/A.
7. The
prosecution to prove its case examined PW/1 PC Ali Hassan Kalahoro
at Ex.11, he produced mashirnama of arrest of accused
Mohib at Ex.
11/A, PW/2 PC Muhammad Khan Odhano at Ex.12, PW/3
Complainant S.I.P Maqsood Raza
Manganhar at Ex.14, he produced roznamcha
entries and copy of F.I.R. at Ex. 14/A to 14/C respectively. PW/4 HC Gul Bahar Koari
at Ex.15, he produced mashirnama of inspection of
injuries of injured PC Muhammad Khan and mashirnama of place of wardhat at Ehx.15/A and 15/B, PW/5 Investigation Officer
Inspector Hamid Ali Jumani at Ex.18, he produced copy
of letter issued to medical officer and copy of letter issued to Jail
authorities at Ex.18/A and B and PW/6 Dr. Azharuddin Farooqi at Ex.19, he produced medico legal certificate of
injured at Ex.19/A. Thereafter, the learned SPP closed side
of prosecution vide his statement at Ex.20.
8. The
statement of accused was recorded under section 342 Cr. P.C. at Ex.21. The accused
druing his examination denied the prosecution
allegations. He has stated that he is innocent and has been falsely implicated
in this case by the police. He also stated that the complainant including the
witnesses are police officials and they are interested witnesses and they have
deposed against him falsely He did not examine himself on oath and also
declined to record the statements of defence
witnesses.
9. On
conclusion of the trial, learned trial Court convicted and sentenced the
appellant as stated above, so also the three other appellants namely Mushtaque, Himath @ Yaseen and Muradoo in absentia.
10. Mr.
Nusrat Ali Shar Advocate
for the appellant submits that after usual investigation challan was submitted
by the SHO Police Station Phullo in Crime No.03/2009
for offences u/s 324, 353, 148,149 PPC and 7 ATA, 1997. It is further mentioned
that at that time accused Mohib alias Shedi alias Shahnawaz Narejo was arrested during investigation, who faced the
trial and he was convicted by the learned Judge Anti-Terrorism Court Khairpur
vide judgment dated 18.10.2012. Appellant Mohib along
with Proclaimed Offenders namely Mushtaque, Himat, Umedoo and Muradoo were convicted in absentia under section 7 ATA and
sentenced to suffer R.I for 10 years and to pay fine of Rs.50,000/- each and in
case of default in payment of fine they have been ordered to suffer R.I for six
months more. Mr. Nusrat Ali Shar
Advocate appearing for appellant Umedoo submits that
accused Mohib had filed Cr.J.
Appeal No.D-77/2012 against his conviction recorded by the trial Court and this
Court vide judgment dated 10.08.2017 dismissed the appeal, however his sentence
was reduced to that of already undergone. Counsel for the appellant submits
that appellant Umedoo has been arrested on 22.04.2019
and presently he is confined at Central Prison, Khairpur. The appellant has
filed this Criminal Jail Appeal against his conviction and sentence awarded to
him in his absence. In support of his contention he has relied upon the cases
of Mir Ikhlaq Ahmed and another v/s The State (2008
SCMR 951), Muhammad Arif v/s The State (2008 SCMR
829) and Muhammad Saddique v/s The State (2018 SCMR
71).
11. Learned
Additional Prosecutor General recorded no objection in case the appeal is
disposed of with direction to the trial Court to conduct the trial in presence
of the accused in accordance with law.
12. We
have considered the above arguments, perused the record and gone through the
case law. Admittedly the trial
of the appellant was conducted by the Judge Anti-Terrorism Court, Khairpur and convicted him for offences u/s 324, 353, 149
PPC and 7 ATA, in his absence, as such the question
arises as to whether the trial against the appellant in absentia was validly
and legally conducted. In the case of Mir Ikhlaq Ahmed
v/s The State (2008
“13. In the case in
hand, the trial of the appellants was conducted by the Special Judge and Murder
reference was answered in affirmative by the High Court in their absence. Now
the question arises as to whether the trial against the appellants, in
absentia, was validly and legally conducted. Article 9 of the Constitution of
Islamic Republic of Pakistan envisages that no person shall be deprived of life
or liberty save in accordance with law. Article 10(1)
of the Constitution; inter alia, provides that no person who is arrested shall
be denied the right to consult and be defended by a legal practitioner of his
choice. Subsection (11-A) to Section 10 of the Anti-Terrorism Act, 1997, which
was inserted vide Ordinance No.XIll of 1999, dated
27-8-1999 and Ordinance No.IV of 1999; dated
27-4-1999, states that an accused person shall not be denied the right to
consult or defend by a legal practitioner of his own choice. The aforenoted provision of law is in line with Article 10(1)
of the Constitution and in fact reiterates the said Article of the Constitution
in letter and spirit. The appellants were absconding at the relevant point of
time, therefore, they, undoubtedly were denied the right to defend themselves
and deprived the right to consult or defend by legal practitioner. The above
question came up for determination before the Lahore High Court and the learned
Division Bench of the said Court in the case reported as Zia Ullah Khan and others v. Government of Punjab and others
PLD 1989 Lah. 554 has held
that the trial of an accused person in absentia is violative
of Article 10 of the Constitution of Islamic Republic of Pakistan. It may be
noted that the said judgment was assailed by the Government of Punjab in Civil
Appeal No.680 of 1989 and this Court in a case report as Government of Punjab through
Secretary, Home Department v. Zia Ullah Khan and 2
others 1992 SCMR 602 dismissed the appeal and upheld the judgment. Another
Division Bench of the Lahore High Court in a case reported as Qari Abdul Hayee and another v.
The State 2005 YLR 1865 while relying upon the aforesaid cases of Zia Ullah Khan and others and Government of Punjab through
Secretary, Home Department (ibid) has also taken the similar view.
14.
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 absence of the appellants, to their extent are not sustainable under the law
and violative of the Constitution and law, which has
necessitated the retrial of the case.”
13. In
the following cases also similar view was taken. Relevant portions of which are
reproduced as under:-
In the case
of ARBAB KHAN v/s THE STATE (2010 S C M R
755)
“3. We have heard the learned counsel for the
appellant, the learned State Counsel and perused the record of this case very
carefully. The learned counsel for the appellant has stated that section 21-L
of the Act is similar to section 31-A of National Accountability Bureau
Ordinance, 1999 (hereinafter referred to as `the Ordinance'); that the trial in
absentia has' been declared violative of Article 9 of
the Constitution of Islamic Republic of Pakistan, 1973 (hereafter referred to
as `the Constitution') for offence punishable under section 31-A of the
Ordinance by this Court in Criminal Appeal No.269 of 2003 Gul
Zaman Kazi v. State decided
on 11-10-2004; that relying upon the said decision, the learned High Court of
Sindh has also declared the trial in absentia as against the provisions of the
Constitution and illegal in two cases viz. Mst.
Mubarak Salman v. State PLD 2006 Kar. 678 and Noor
Muhammad Khatti v. State 2005 PCr.LJ
1889, therefore, the trial of the appellant in absentia is also illegal. The
learned State counsel has conceded the above position and has not supported the
impugned order as well as the judgment of the learned trial Court in respect of
conviction and sentence for offence punishable under section 21-L of the Act.
4. Having heard the learned counsel for the
parties and perusing the record, we find that the proceedings under sections 87
and 88 of Cr.P.C. were initiated for the purpose of
proceeding with the case in absentia, thereafter the charge was framed for
other offences except section 21-L of the Act. The record further reveals that
no evidence was recorded to prove the ingredients of section 21-L of the Act.
No point for determination concerning the offence under section 21-L of the Act
was framed in the judgment by the trial Court. There is no discussion in the
impugned order and in the judgment of the trial Court with regard to any
evidence available on record. In cursory manner, the learned trial Judge
convicted and sentenced the appellant for the said offence. Thus, the procedure
adopted by the trial Court in convicting and sentencing the appellant is not
warranted by law and illegal.
5. We have also gone through section 21-L of the
Act and section 31-A of the Ordinance and find that both the sections are
similar to each other. The said sections read as under:
"[Section 21-L. Punishment for an absconder.--- Whoever being accused of an offence under this Act,
absconds and avoids arrest or evades appearance before any inquiry,
investigation or Court proceedings or conceals himself, and obstructs the
course of justice, shall be liable to imprisonment for a term not less than
[five years] and not more than [ten years] or with fine or with both].
[31-A. Absconding to avoid service of warrants.--- Whoever
absconds in order to avoid being served with any process issued by any Court or
any other authority or officer made this Ordinance or in any manner prevents,
avoids or evades the service on himself of such process or conceals himself to
screen himself from the proceedings or punishment under this Ordinance shall be
guilty of an offence punishable with imprisonment which may extend to three
years notwithstanding the provisions of sections 87 and 88 of Code of Criminal
Procedure, 1898, or any other law for the time being in force]."
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."
In the case of KHANZADO alias KETOO SABZOI v/s The
STATE (2015 P Cr. L J 1561)
“8. Having heard the learned counsel for the
parties and perusing the record, we find that the proceedings under sections 87
& 88, Cr.P.C. were initiated for the purpose of
proceedings with the case in absentia, thereafter the charge was framed for
other offences except section 21-L of the Anti-Terrorism Act, 1997. The record
further reveals that no evidence was recorded to prove the ingredients of
section 21-L of Anti-Terrorism Act, 1997. No point for determination concerning
the offence under section 21-L of Anti-Terrorism Act, 1997, was framed in the
judgment of the trial Court there is no discussion in the impugned judgment of
the trial Court with regard to any evidence available on record. In cursory
manner, the learned trial Court convicted and sentenced the appellant for the
said offence, thus the procedure adopted by trial Court in convicting and
sentencing the appellant is not warranted by law and illegal.
9. We have also gone through Section 21-L of
Anti-Terrorism Act 1997. For the sake of convenience it would be appropriate to
reproduce the said section, which reads as under:
"Section 21-L. Punishment
for an absconder. --- Whoever being accused of an offence under this
Act, absconds and avoids arrest or evades appearance before any inquiry,
investigation or Court proceedings or conceals himself, and obstructs the
course of justice, shall be liable to imprisonment for a terms not less than
[five years] and not more than [ten years], or with fine or with both]".
10. Admittedly, the appellant has been acquitted
from the charge of the offences framed against him under sections 365-A, 368,
148, 149, P.P.C, read with sections 6/7 of Anti-Terrorism Act, 1997. No charge
under section 21-L of Anti-Terrorism Act, 1997, has been framed against him,
but despite of this fact, appellant was convicted in his absentia.
11. In view of above, we feel that trial of the
appellant in absentia, undertaken by learned trial Court was violative of Articles 9 and 10(1) of Constitution of
Islamic Republic of Pakistan, 1973, and sections 10 and (11-a) of
Anti-Terrorism Act, 1997, thus conviction and sentence cannot be allowed to
sustain. Moreover the appellant was not afforded an opportunity of hearing and
thus he was condemned unheard, which is contrary to the principle of natural
justice. On this aspect of the case we are supported with case of Mir Akhlaq Ahmed and others v. The State
(2008 SCMR 951), and case of Ali Hassan v. The State
(2009 MLD 1198 Karachi).
12. As observed above the appellant has been
acquitted in main offences along with other accused on same evidence,
therefore, under the facts and circumstances of the case, no useful purpose
will be served by remanding the case to trial Court for re-trial.
13. In the light of the above discussion, this
appeal is allowed. The conviction and sentence awarded by trial Court against
the appellant by judgment date 15-2-2012, in his absentia, are set aside and he
is acquitted. The appellant is in custody, he shall be released forthwith, if
not required in any other case.”
14. Since
the trial of the appellant was conducted in absentia without providing him
opportunity of hearing, therefore, in view of the dictum laid down in the above
referred case, we are of the view that the conviction and sentence awarded to
appellant by the Judge Anti-Terrorism Court, Khairpr
is not sustainable under the law and is violative of above
provision of the Constitution.
15. For
the foregoing reasons and the guidance from the judgments above, we partly
allow this appeal. The conviction and sentence recorded by the trial Court vide
judgment dated 18.10.2012 passed by learned Judge Anti-Terrorism Court, Khairpur Mirs, in Special Case
No.40/2009, Crime No.03/2009, u/s 324, 353, 148, 149 PPC & 7 ATA of police
Station Phullu are set-aside. Case is remanded back
to the trial Court for fresh trial in accordance with law. Trial Court is
directed to conclude the trial expeditiously as provided under provisions of
Anti-Terrorism Act, 1997.
16. These are
the reasons for our short order announced by us on 03.09.2019.
JUDGE
JUDGE
Suleman Khan/P.A