IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.D-142 of 2010

PRESENT:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Salahuddin Panhwar,

Appellant : Kareem Bux Tunio, through Mr. Rafique Ahmed K.

Abro, Advocte.

Respondent : The State, through Mr. Imtiaz Ali Jalbani,

Assistant Prosecutor General.

Date of hearing: 21-05-2014. Date of Judgment: 21.05.2014.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- Appellant/accused Kareem Bux Tunio alongwith other accused was tried by the learned Judge, Anti-Terrorism Court, Jacobabad in absentia in Special Case No.19/2009, re State v. Bashir Tunio & others, arising out of Crime No.14/2009, registered at Police Station Gaheja, District Shikarpur, under Sections 365-A, 148, 149, PPC and Section 7 of the Anti-Terrorism Act, 1997. After full-dressed trial, appellant Kareem Bux and co-accused Bashir Ahmed, Mehar, Ismail, Qadir Bux, as well as Qadir Bux alias Baboo and Baboo, all by caste Tunio, were acquitted of the charge, by judgment dated 23.06.2010. However, appellant Kareem Bux on account of his absconsion was convicted under Section 21-L of the Anti-Terrorism Act, 1997 and sentenced to 05 years R.I, his movable and immovable properties were forfeited.

2. Appellant Kareem Bux surrendered before this Court by filing the aforesaid appeal against his conviction and sentence recorded in his absentia, as stated above.

3. Brief facts of the prosecution case, as unfolded in the F.I.R, are that on 31.3.2009, at 1300 hours, one Ghulam Nabi lodged his report, alleging therein that on 26.3.2009, he alongwith his son Sarfraz Ali, maternal cousin Sadam Hussain and Gulshan Umrani, were present in front of their Otaque on a link road, where it is alleged that accused persons, namely, 1. Qadir Bux alias Bassar son of Rahim Bux, 2. Mehar, 3. Kareem Bux, 4. Qadir Bux, 5. Ismail, 6. Baboo Tunio, all armed with Kalashnikovs, and 7. Bashir Ahmed, armed with a gun, appeared there at 6.00 p.m. It is alleged that accused persons by show of force kidnapped Sarfraz Ali, Saddam Hussain and Gulshan Umrani for ransom. F.I.R of the incident was lodged on 31.3.2009 at P.S Gaheja, vide crime No.14/2009, under Section 365-A, PPC.

4. After usual investigation, challan was submitted against accused Bashir Ahmed, Mehar, Ismail and Qadir Bux under Section 365-A, PPC read with Section 7 of the Anti-Terrorism Act, 1997. Appellant Kareem Bux and co-accused Qadir Bux alias Baboo and Baboo, were shown as absconders. N.B.Ws were issued against them by the trial Court, which returned unexecuted. Case was ordered to proceed under Section 512, Cr.P.C. Proceedings under Sections 87 and 88, Cr.P.C were concluded against them.

5. Mr. Bilawal Khan was appointed as an advocate for absconding accused to defend them on State expenses.

6. After framing of the charge, the case proceeded before the trial Court. On the conclusion of the trial, after hearing the learned Counsel for the parties, accused Bashir Ahmed, Qadir Bux as well as appellant Kareem Bux were acquitted of the charge under Section 365-A, PPC read with Section 7 of the Anti-Terrorism Act, 1997. However, trial Court convicted appellant Karim Bux under Section 21-L of the Anti-Terrorism Act, 1997 on account of his absconsion for the term as stated above. Relevant portion of the judgment of the trial Court is reproduced as under :-

“Since the prosecution has miserably failed to prove the charge, against accused beyond the shadow of reasonable doubt, therefore, accused Bashir Ahmed s/o Haji Adam by caste Tunio, Mehar s/o Taj Muhammad by caste Tunio, Ismail s/o Hakim alias Hako by caste Tunio, Qadir Bux s/o Hadi Bux by caste Tunio, as well as absconding accused Qadir Bux alias Baboo s/o Rahim Bux by caste Tunio, Karim Bux s/o Talib by caste Tunio, Baboo s/o Ghous Bux by caste Tunio are acquitted from charge U/S 265-H(I) Cr.P.C. Accused Bashir is present on bail, his bail bond stand cancelled and surety is hereby discharged. Accused Mehar, Qadir Bux and Ismail are present in custody produced by Jail authorities and remanded back with directions to release them forthwith if they are not required in some other case/crime respectively. Issue such release writ for accused to the concerned jail authorities, respectively.

I am satisfied with the deliberate abscondence of accused Qadir Bux alias Baboo s/o Rahim Bux by caste Tunio, Karim Bux s/o Talib by caste Tunio, Baboo s/o Ghous Bux by caste Tunio, therefore, above named absconding accused are hereby convicted and sentenced U/S 21-L of Anti-Terrorism Act 1997, for (FIVE YEARS) with forfeiture of their movable and immovable properties. Therefore perpetual warrants be issued against absconding accused named above.”

7. Thereafter, appellant Karim Bux through the instant appeal approached this Court for setting aside conviction and sentence recorded against him by the trial Court in his absentia.

8. Mr. Rafique Ahmed K. Abro, learned Counsel for the appellant, has argued that conviction of the appellant under Section 21-L of the Anti-Terrorism Act, in his absentia, is violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. Counsel for the appellant further argued that trial of appellant in his absentia was also illegal. Reliance has been placed upon the case of Ali Hassan v. The State, 2009 MLD 1198 (Karachi).

9. Mr. Imtiaz Ali Jalbani, learned Asstt. Prosecutor General, has conceded the above legal position and has not supported the impugned judgment passed by trial Court in respect of conviction and sentence awarded to the appellant for an offence under Section 21-L of the Act, 1997.

10. We have carefully heard the learned Counsel for the parties and perused the entire evidence.

11. Record reflects that proceedings under Sections 87 and 88, Cr.P.C were initiated for declaring the accused Karim Bux as proclaimed offender for the purpose of proceeding with the case in his absentia. Thereafter, charge was framed against present accused and others at Ex.10 for offences under Sections 365-A, PPC and Section 7 of the Anti-Terrorism Act, 1997. Record of the trial Court reflects that no charge was framed against the appellant under Section 21-L of the Act, 1997. Record further reveals that no evidence was recorded to prove the ingredients of Section 21-L of the Anti-Terrorism Act. Trial Court had also failed to formulate a point for determination regarding the offence under Section 21-L of the Act, 1997 in the impugned judgment. Absolutely, there was no evidence that absconsion of the appellant was intentional and no finding has been recorded to the effect that appellant was fugitive from the law. However, in the cursory manner learned trial Judge has convicted and sentenced the appellant for the aforesaid offence. Thus, procedure adopted by the learned trial Judge in convicting and sentencing the appellant under Section 21-L of the Anti-Terrorism Act, 1997 was absolutely illegal.

12. We have gone through Section 21-L of the Anti-Terrorism Act, 1997. The said Section reads as under :-

“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.

13. In the view of above, we feel that trial of appellant Kareem Bux in absentia, undertaken by learned Judge, Anti-Terrorism Court, Jacobabad, was violative of Articles 9 and 10(1) of the Constitution and Sections 10 and 11(a) of the Anti-Terrorism Act, 1997. Thus, conviction and sentence cannot be allowed to sustain. Moreover, the appellant was not afforded an opportunity of hearing, thus he was condemned unheard, which is contrary to the principles of natural justice. Powers of the appellate Court are wider than the powers of trial Court in the matters of setting aside conviction in absentia. The trial Court after setting aside 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 re-trial or may even acquit him on merits, if the case is found fit for acquittal on merits. It will be futile exercise to conduct a fresh trial if a person convicted in absentia is entitled to acquittal on merits and it would be unfair to order the accused to undergo re-trial. Under Section 25 of the Anti-Terrorism Act, 1997, there is nothing to suggest that a person convicted and sentenced in absentia cannot file appeal without first making application under Section 19(12) of the Anti-Terrorism Act, 1997. Reliance is placed on the reported case of Ali Hassan (supra). Relevant portion is reproduced as under :-

“10. Out of two abductees, one, namely, Khalid Hussain could not be traced out and other, namely, Dilmeer did not implicate either Wazir, in whose presence the trial was conducted, or the present appellant, who was tried in absentia. The evidence of two police officers, namely, SIP Najeebullah Pathan and H.C. Janib, who claimed to have identified the dacoits, was not believed by this Court in the appeal filed by Wazir. After the acquittal of Wazir by this Court, conviction in absentia of present appellant Ai Hussain, who has a better case for acquittal, cannot be sustained on same evidence. No useful purpose will be served to examine the same witnesses again. The learned Assistant Advocate General is also of the same opinion. Accordingly, the conviction and sentence of the appellant recorded in his absence are set aside and he is acquitted. He may be released immediately.”

14. In the present case, appellant has been acquitted for offences under Section 365-A, PPC and Section 7 of the Anti-Terrorism Act, 1997. Absolutely, there is no evidence against the appellant to prove the offence under Section 21-L of the Anti-Terrorism Act, 1997. Learned Asstt. Prosecutor General has also not supported the impugned judgment. After acquittal of the co-accused Bashir Ahmed, Mehar, Ismail and Qadir Bux, who faced trial and were acquitted, conviction of present appellant in absentia cannot be sustained on same evidence. Therefore, no useful purpose will be served by remanding the case to the trial Court for re-trial.

15. For the above-stated reasons, the appeal is allowed, conviction and sentence awarded by the trial Court against the appellant by judgment dated 23.06.2010 in his absentia, are set aside and he is acquitted.

16. These are the reasons for our short order passed on 21.05.2014.

Sd/- JUDGE

Qazi Tahir/*