IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No. D- 83 of 2012.

Present:

Mr. Justice Sadiq Hussain Bhatti.

Mr. Justice Abdul Maalik Gaddi.

Khanzado alias Ketoo Sabzoi. ………….Appellant.

Versus

The State. ...…..…Respondent.

Mr. Rafique Ahmed K. Abro, Advocate for appellant.

Mr. Imtiaz Ali Jalbani, A.P.G.

Date of hearing: 25.11.2014.

Date of Judgment: 25.11.2014.

J u d g m e n t

Abdul Maalik Gaddi, J-. The appellant/ accused Khanzado alias Ketoo son of Hussain Bux Sabzoi alongwith other accused was tried by the learned Judge, Anti-Terrorism Court, Jacobabad, in absentia in Special case No.52/2010, Re- State Vs. Saboo alias Chachoo and others, arising out of Crime No.282/2010, registered at Police Station A-Section Kandhkot, under Sections 365-A, 368, 148, 149 P.P.C, and Sections 6/7 of the Anti-Terrorism Act, 1997. After full dressed trial, appellant and co-accused named in the challan sheet were acquitted of the charge, by Judgment dated 15.2.2012. However, appellant Khanzado alias Ketoo on account of his absconsion was convicted under Section 21-L of the Anti-Terrorism Act, 1997, and sentenced to five years R.I; his moveable and immovable properties were forfeited.

2. Brief facts of the case are that on 18.9.2010, at 10.30 hours, complainant Shashpal lodged F.I.R against unknown accused, stating therein that on 11.9.2010, at 8.00 a.m. when he alongwith his brother Giyano and his neighborer Kalash were available in front of their house. In the meantime, his son Dheeraj Kumar aged six years went out the house for purchasing sweets from the shop in neighborhood; they saw two persons with open faces on motorcycle CD-70 without number duly armed with Kalashnikov, and pistol stopped their motorcycle near to his son and they by show of force kidnapped his son Dheeraj Kumar for ransom.

3. After usual investigation, challan was submitted against accused Saboo alias Chachoo, Sheesho alias Chitra and Ghulam Nabi under Section 365-A P.P.C read with Section 6/7 of Anti-Terrorism Act, 1997. Present appellant Khanzado alias Ketoo and co-accused Hajoo, Naboo, Ali Bagh, Shahnawaz, Looto and Ganjoo were shown as absconders. N.B.Ws: were issued against them by trial Court, which returned un-executed. Case was ordered to proceed under Section 512 Cr.P.C. Proceedings under Section 87 & 88 Cr.P.C were concluded against them.

4. After framing of charge, the case proceeded before trial Court. on conclusion of the trial, after hearing the parties counsel, all accused including present appellant were acquitted of the charge under Section 365-A P.P.C, read with Section 6/7 of Anti-Terrorism Act, 1997. However, trial Court convicted appellant under Section 21-L of Anti-Terrorism Act, 1997, on account of his absconsion for a term as stated above. Relevant portion of the Judgment of trial Court is reproduced as under:

“From the above discussion point No.1 to 3, I am of the humble view that the prosecution had failed to bring home the charge against any of the accused for commission of rioting, abduction or ransom, if any, paid or demanded by any of the accused. Therefore, by extending benefit of doubt the accused Saboo alias Chachoo, Sheesho alias Chittra and Ghulam Nabi including absconding accused Hajoo, Naboo, Ali Bagh, Shah Nawaz alias doctor, Looto, Ganjoo and Ketto alias Khanzado are acquitted under Section 265-H (I) Cr.P.C. Accused Ghulam Nabi present in Court, his bail bond is cancelled and surety stand discharged. Accused Saboo and Sheesho are produced in custody; they are remanded back with release warrant to jail authorities, with directions that they may be set at liberty, if they are not required in any other custody case.

From the circumstances of the case, it appears that accused Hajoo, Naboo alias Nabi Bux, Ali Bagh, Shah Nawaz alias Doctor, Looto, Ganjoo and Ketto alias Khanzado are absconding in this case. I am satisfied with deliberate abscondance of these accused, each of them is convicted under Section 21-L of Anti-Terrorism Act, 1997, and each of them is sentenced for (five years) with forfeiture of their moveable or immoveable property, therefore, perpetual warrants be issued against these absconding accused.”

5. Thereafter, appellant Khanzado alias Ketoo through the instant appeal approached to this Court for setting aside the conviction and sentence recorded against him by trial Court in his absentia.

6. Mr. Rafique Ahmed K. Abro, learned Advocate for the appellant has argued that conviction of the appellant under Section 21-L of Anti-Terrorism Act, 1997, in his absentia, is violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. He further argued that though the appellant has been acquitted in main offences, but he was convicted in his absentia under Section 21-L of Anti-Terrorism Act, 1997, without hearing him which is illegal. Reliance has been placed upon the case of Ali Hassan Vs. the State (2009 MLD 1198 Karachi).

7. Learned A.P.G. 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 Anti-Terrorism Act, 1997.

8. Having heard the learned counsel for the parties and perusing the record, we find that the proceedings under Section 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 bylaw 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 Section 365-A, 368, 148, 149 P.P.C, read with Section 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 Article 9 and 10 (1) of Constitution of Islamic Republic of Pakistan, 1973, and Section 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 Vs. The State (2008 SCMR 951), and case of Ali Hassan Vs. The State (2009 MLD 1198 Karachi).

12. As observed above the appellant has been acquitted in main offences alongwith 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. This appeal was allowed by our short Order dated 25.11.2014, and appellant was acquitted. These are the reasons of short order.

Judge