IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.D-33 of 2022

PRESENT:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Khadim Hussain Tunio,

Appellant : Mohammad Ismail Kandrani, through

Mr. Mohammad Akram Kamboh, Advocte.

Respondent : The State, through Mr. Ali Anwar Kandhro,

Additional Prosecutor General.

Date of hearing : 05-10-2022.

Date of Judgment: 05-10-2022.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- Appellant Mohammad Ismail Kandrani was tried by learned Judge, Anti-Terrorism Court, Sukkur in Special Case No.04/2022, re-The State v. Mohammad Ismail Kandrani, arising out of Crime No.146/2002, registered at Police Station A-Section, Thul, District Jacobabad, for offences under Sections 302, 324, 353, 449, 427, 109, 148, 149, PPC, 3/4 Explosive Substances Act, 1908 and Section 7, Anti-Terrorism Act, 1997. On the conclusion of the trial, appellant was acquitted of the main charges by the trial Court vide judgment dated 29.07.2022. However, the trial Court in it’s judgment as mentioned that appellant at the stage of recording statement of accused jumped over the bail and was fugitive from the law. Because of his absconsion, he was convicted by the trial Court u/s 21-L of Anti-Terrorism Act, 1997 and sentenced to undergo 05 years R.I. and to pay the fine of Rs.50,000/-; in case of default in payment of fine, he was ordered to undergo S.I. for 15 days. Appellant was extended benefit of Section 382-B, Cr.P.C. Being dis-satisfied, appellant filed appeal. Appeal was admitted to the regular hearing.

2. Learned advocate for the appellant mainly contended that the appellant has been acquitted by the trial Court in the main offences by disbelieving the prosecution evidence and his conviction on the absconsion without recording the evidence to that effect was unwarranted in law. It is also argued that conviction of the appellant in his absentia was violative of the Constitution, 1973. In support of the contentions, reliance is placed upon the cases reported as Muhammad Arif v. The State (2008 SCMR 829) and Mir Ikhlaque Ahmed and another v. The State (2008 SCMR 951).

3. Mr. Ali Anwar Kandhro, Addl. P.G. conceded to the contentions raised by learned advocate for the appellant.

4. Learned advocate for the appellant in support of his contentions has also referred to the case of Arbab Khan v. The State (2010 SCMR 755). Relevant portion is reproduced as under:-

“A. Could the trial court under its judgment dated 02.10.2007 convict and sentence the petitioner under section 21-L of Anti-Terrorism Act, 1997 without recording and discussing the evidence in that behalf particularly when no charge to that effect was framed.

B. Whether on an appeal preferred by the petitioner, could the appellate court non-suit him on technical ground without adverting to the above aspect of the matter; and

C. Whether during pendency of an application under section 19(12) of ATA, 1997 moved by the petitioner before the trial court could the appellate Court without taking the said fact into account dismiss his appeal under the impugned order?”

5. It is the matter of the record that appellant has been acquitted by the trial Court in the main offences. Relevant paragraph of the judgment of the trial Court is reproduced as under:-

“In the light of discussion, it is obvious that prosecution has failed to prove the guilt of accused Muhammad Ismail for the charges arising out of FIR No.146/2002 PS ‘A’ Section Thull beyond reasonable doubt. In the previous rounds of the trial accused Master Manzoor, Ali Nawaz, Abdul Rehman, Ghulam Muhammad @ Gularo and Abdullah Khan, Bakhat Ali have been acquitted vide judgments dated 13.06.2017 and 21.09.2021.

Benefit of doubt is extended to the accused Muhammad Ismail and is acquitted U/S 265-H(1) Cr.P.C.

It is pertinent to mention here that after recording the statement of accused U/S 342 Cr.P.C accused jumped over the bail and remained fugitive from law absconder for the years. Legal heirs of deceased surety have deposited the penalty amount. The evidence brought on record establishes that absconsion was intentional and deliberate, therefore, I find him guilty U/S 265-H(2) Cr.P.C of the charge of offence punishable U/S 21-L A.T. Act, 1997. Learned counsel for accused has not argued about the sentence if the Court comes to the conclusion that absconsion of accused was deliberate and intentional, however, I take lenient view and convict and sentence accused Muhammad Ismail son of Sher Ali Kandrani to undergo for five years with rigorous imprisonment and to pay fine of Rs.50,000/-. In case of failure to pay fine, he shall further undergo for (15) days S.I.”

6. On our re-appraisal of the evidence, we have noticed that appellant had raised plea that he had shifted from his residential house to somewhere else to save his life due to tribal dispute, but trial Court failed to consider such plea without assigning the sound reasons. From the evidence, which is brought on the record, ingredients of Section 21-L of Anti-Terrorism Act, 1997 are not satisfied, therefore, it would be appropriate to reproduce the same 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.”

7. In the view of above legal and factual position and after re-appraisal of the evidence/material available on the record and keeping in view the sound judicial principles, we hold that prosecution had failed to establish it’s case against the appellant for his conviction for offence u/s 21-L, Anti-Terrorism Act, 1997. Therefore, the appeal is allowed, conviction and sentence awarded by the trial Court against the appellant by judgment dated 29.07.2022 are set aside and he is acquitted. Appellant shall be released forthwith, if not required to be detained in any other custody case.

JUDGE