IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Special Crl. Jail Appeal No.D-35 of 2023

Present:

Mr. Yousuf Ali Sayeed, J

Mr. Zulfiqar Ali Sangi, J

Appellant: Wazir @ Waziro @ Ghulam Shabir son of Shafi Muhammad Jatoi through Mr. Gulshan Ahmed Shujrah, Associate of Mr. Nisar Ahmed Bhambhro, Advocate.

State: Through Shafi Muhammad Mahar DPG.

Date of hearing: 22.11.2023.

Date of decision: 21.12.2023.

J U D G M E N T

Zulfiqar Ali Sangi, J.– The appellant named above has filed instant Crl. Jail Appeal through Senior Superintendent Central Prison and Correctional Facility Sukkur, whereby he has impugned the judgment dated 23.04.2019, passed by Anti Terrorism Court-I Sukkur, in Special Cases No. 14/2019 and 15/2019 (Re. The State Vs. Gunbo and others) arising out of Crime No. 34/2016 offences u/s 302, 324, 353, 427, 148, 149 PPC & 7-ATA, 1997 registered at PS Bagerji, whereby he was convicted and sentenced in absentia as under:-

Sr. No.	Offence	Sentence
1	U/S 302 (b) PPC r/w Section 149 PPC	To undergo RI for life imprisonment. Accused shall pay compensation of Rs. 500,000/- U/S 544-A Cr.PC to legal heirs of the deceased SHO Syed Subhan Ali Shah.
2.	U/S 7(i) (a) A.T Act 1997	To undergo for life imprisonment and to pay fine of Rs. 50,000/- in case of failure, he shall further undergo for one year S.I.
3.	U/S 353 PPC	To undergo for two years RI and to pay fine of Rs. 5000/- in case of failure, he shall further undergone for one month S.I.
4.	U/S 324 PPC	To undergo for ten years RI and to pay fine of Rs. 3000/- in case of failure, he shall further undergo for one month S.I.
5.	U/S 7 (i) (B) A.T Act 1997	To undergo for ten years RI and to pay fine of Rs. 3000/- in case of failure, he shall further undergo for one month S.I.
6.	U/S 427 PPC r/w Section 149 PPC	To undergo for two years RI and to pay fine of Rs. 1000/- in case of failure, he shall further undergo for one month S.I

2. Precisely, the facts of case are that on 11.12.2016, complainant SIP Habibullah Mahar lodged FIR with PS Bagerji, alleging therein that on the same date, under supervision of SIP Syed Subhan Ali Shah, SHO PS Bagerji, left police station on a tipoff that notorious criminal Baggan Jatoi and Rajoo Jatoi with their companions present at the otaque of Sallah Jatoi are conspiring to commit heinous offence. Thus, the police party reached at the otaque of Sallah at 07.50 p.m, where noticed 12/13 persons having Kalashnikovs, G-3 Rifles and Guns sitting in the otaque. It is further alleged that in the light of vehicle, complainant and witnesses identified the culprits as Jaggan for whose arrest price (head money) was fixed with G-3 rifle, accused Rajoo, Dil Khan @ Diloo, Othi @ Muhammad Ali, Nadir Ali with Kalashnikovs, Sallah with G-3 rifle, while five un-known had Kalashnikovs and Guns, accused persons had challenged to drop their weapons and to surrender but they started firing upon police officials with intention to commit their murder, and police officials also took positions and fired upon the accused persons, during encounter SHO Subhan Ali Shah sustained injuries on his person and went unconscious. Police party noticed that there was an aperture on the front wind shield of the vehicle caused by discharge of firearm. The injured SHO Subhan Ali Shah shifted to Bagerji Hospital for treatment and with the help of police officials entered the otaque and apprehended a man holding Gun in his hand. HC Ghulam Mustafa and Muhammad Sadique were appointed as mashirs; on inquiry accused disclosed his name as Gunbo son of Bhai Khan Attrani Jatoi. Complainant took gun into his possession, which was found empty; same was sealed on the spot. On inquiry, accused disclosed that he has no license for the gun. Complainant conducted personal search of the accused but nothing more was recovered, in the meantime, he received information that SHO Syed Subhan Ali Shah has succumbed to injuries on the way to Civil Hospital, Sukkur. Then, such mashirnama of arrest and recovery was prepared with the signatures of mashirs. Thereafter, accused and case property were brought at PS Bagerji, where FIR against accused was lodged on behalf of the State.

3. After usual investigation challan was submitted against the appellant/accused by showing him as absconder. Vide order dated 02.03.2017 the connected arms case bearing FIR No. 35/2016 U/S 24 of the Sindh Arms Act, 2013 registered against the arrested accused Gunbo Jatoi was amalgamated in view of Section 21-M of the ATA, 1997. Thereafter, by completing legal formalities, the trial Court framed combined charge against accused to which accused Gunbo pleaded not guilty and claimed to be tried. The prosecution has examined 06 witnesses; they have produced certain documents and items in support of their evidence. Thereafter, the side of the prosecution was closed. The accused Gunbo was examined under section 342 Cr.P.C, wherein he denied the allegations leveled against him and pleaded his innocence. After hearing the parties and assessment of the evidence against the accused, the trial Court convicted and sentenced the appellant/accused in absentia as stated above, against the said conviction he preferred this jail appeal.

4. Learned counsel for the appellant/accused argued that accused is innocent and has falsely been implicated in this case by the police to show their efficiency; that all the PWs are police officials hence they are set-up; that there are material contradictions in the evidence of prosecution witnesses, which demolished the whole case of prosecution; that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court which is insufficient to warrant conviction against the appellant/accused; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant/accused; that the judgment passed by the trial Court is preserve and liable to be set-aside. Learned counsel mainly contended that entire evidence was recorded and sentence was passed by the trial court in absentia by violating the Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Lastly, prayed that the appellant/accused may be acquitted by extending him the benefit of doubt.

5. Conversely, learned Deputy Prosecutor General Sindh, opposed the aforementioned appeal on the ground that prosecution has successfully proved its case against the appellant/accused beyond a reasonable doubt and all the witnesses including complainant have fully implicated the appellant/accused in their evidence recorded by the trial Court; that all the necessary documents including the entries of station diary, the memos, FIR, Chemical Examiner report, post mortem report etc have been produced; that there appears no malafide or ill-will on the part of police officials to falsely implicate innocent person; that there are no major contradictions in the evidence of prosecution witnesses. Lastly, he conceded that the trial of appellant/accused was held in his absence and chance of defence was not provided to him therefore this is fit case to be remanded for retrial against the present appellant.

6. We have heard learned Counsel for the appellant/accused, learned Deputy Prosecutor General Sindh and have examined the record carefully with their able assistance.

7. Perusal of record reflects that initially the accused Gunbo Jatoi who was alleged to be arrested at spot was tried along with absconders including the present appellant and was convicted vide judgment dated: 23.05.2017. He preferred appeal before this court bearing Cr. Jail Appeal No. D-167 of 2017, wherein this court set-aside the judgment of trial court and remanded the case for recording statement under section 342 Cr.P.C, afresh so also the judgment, vide judgment dated: 03.04.2019. The trial court after such exercise again convicted accused Gunbo Jatoi alongwith absconders including the present appellant vide the impugned judgment dated: 23.04.2019. One of the absconding accused Shahban Jatoi (convicted in absentia) was arrested who filed application under section 19 (12) of ATA, 1997 which was allowed by the trial court vide order dated: 06.07.2022 wherein the judgment dated: 23.05.2017 passed by the trial court was set-aside only in respect of accused Shahban Jatoi. Accused Shahban was then tried and was acquitted vide judgment dated: 16.02.2023. As per the appellant he surrenders himself before the SSP Sukkur in another case and was remanded by the trial court in this case with conviction warrant alongwith the copy of impugned judgment. There appears no record to suggest that the evidence was recorded in presence of appellant.

8. It is a well-settled principle of law that evidence is to be recorded in the presence of accused as provided under section 353 of the Code of Criminal Procedure 1898, which reads as under:-.

"353. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXIIA] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader".

9. It is clear from the above-referred provision of law that the legislature has made it mandatory by using the word "Shall" that all evidence should be recorded in the presence of the accused or when his personal attendance is dispensed with and accused is represented through a pleader. The logic behind this could be nothing but to ensure providing a full and fair opportunity to the accused while eliminating all chances of a subsequent plea(s) of accused being prejudiced. The legislature has provided an exception to this mandatory provision by enacting the provision of section 512, Cr.P.C. and Article 46 of Qanun-e-Shahadat Order, 1984 while keeping in view certain natural facts and elements. The provision of section 512, Cr.P.C., the exception, being material, is reproduced hereunder:--

"512. Record of evidence in absence of accused. (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or [send for trial to the Court of Session or High Court] such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expenses or inconvenience which, under the circumstances of the case, would be unreasonable".

10. Perusal of above provision shows that this exception is available in the matter(s) where the accused is absconder, and the purpose of recording of depositions under section 512, Cr.P.C. is that same could be used against the absconder accused on his arrest or as per sub-clause (2) thereof, against the person or persons, who may subsequently be accused of the offence. The intention of legislation may be to preserve the deposition keeping in view the chances of deponent being dead or incapable of giving evidence at such time. However, such evidence(s) cannot be of such weight as recorded in presence of the accused person(s) whereby the accused is provided a fair opportunity to cross-examine the deponent to test the veracity of deponent and Article 46 of Qanun-e-Shahadat Order, 1984 also makes it clear that procedure for recording evidence and its evidentiary value is available in the statute with certain conditions. In this regards the Supreme Court of Pakistan in case of Arbab Tasleem vs. The State, (PLD 2010 SC 642), has held as under:-

"As a general rule of evidence only such statement is legal and admissible which is given during the course of judicial proceeding on oath and it is taken by a person authorized under the law to take down the evidence and it is made in the presence of the adverse party, giving him right to cross-examine deponent. There are two exceptions to the said general rule, where a statement made admissible one exception is covered under Art.46, Q.S., when a person makes a statement as to the cause of his death and the second exception is under section 512, Cr.P.C. when an accused absconds and law makes it permissible to preserve the evidence of witness with a view that if at his trial any such witness is either dead or incapable of giving evidence or his presence cannot be acquired without unnecessary delay, his statement previously recorded at the back of accused can be taken into evidence. Further it is held that "evidence recorded will be legal/admissible, however its evidentiary value cannot be equated with such statement which has been subjected to cross-examination, therefore, for giving weight to the statement of such witness, it has to be seen whether such statement: intrinsically rings true and whether or not same is supported by circumstantial evidence through any source. If such witness is supported by independent evidence in shape of any circumstances or corroboration from any source, it will be good piece of evidence."

11. The Supreme Court of Pakistan in the case of Arbab Khan vs. 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."

12. It is well-settled principle of law that if earlier recorded evidence, is allowed to be used against the absconding accused on his arrest without providing him an opportunity to cross-examine the witness this may result in a departure from the word of fair trial, and would be the violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The Supreme Court of Pakistan in the case of Mir Ikhlaq Ahmed and another vs. The State (2008 SCMR 951), based on the almost same circumstances like present case has observed as under:-

“13. In the case in hand, the trial of the appellants was conducted 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.XIII 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 afore-noted 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 reported 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 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 retrial of the case.

15. In view of the above discussion, we allow this appeal, set aside the impugned judgment and remand the case to the trial Court for decision afresh in accordance with law.”

13. It is further observed that all the incriminating piece of evidence available on record in shape of examination-in-chief, cross-examination or re-examination of witnesses are required to be put to the accused, if the same are against him, while recording his statement under section 342 Cr.P.C in which the words used “For the purpose of enabling the accused to explain any circumstances appearing in evidence against him.” which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984.

14. As regards to the direct approach to this court by not invoking the jurisdiction of trial court by filing application under section 19 (12) of the ATA, 1997 it is observed that no doubt, appellant has approached this Court directly without filing an application under section 19(12) of Anti-Terrorism Act, 1997 before trial Court. Under Section 25 of Anti-Terrorism Act, 1997, there is no bar that a person convicted and sentenced in absentia under the Anti-Terrorism Act, 1997 before trial Court cannot file appeal without filing application under section 19(12) of ATA, 1997.

15. Thus based upon the above discussed facts and the circumstances the impugned judgment dated: 23.04.2019, passed by Anti-Terrorism Court-I Sukkur, in Special Cases No. 14/2019 and 15/2019 (Re. The State vs. Gunbo and others) arising out of Crime No. 34/2016 offences u/s 302, 324, 353, 427, 148, 149 PPC & 7-ATA, 1997 registered at PS Bagerji, is set-aside and the case is remanded back to the trial court to proceed against the appellant by framing the charge and further proceed in accordance with law.

16. The Jail appeal is disposed of in the above terms.

J U D G E

Ihsan/PA.