IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No. D- 10 of 2015.

Present:

Mr. Justice Naimatullah Phulpoto.

Mr. Justice Muhammad Junaid Ghaffar.

Saith Essani. ……...Appellant.

Versus

The State. ...…..Respondent.

Mr. Safdar Ali Ghouri, Advocate for appellant.

Mr. Khadim Hussain Khooharo, D.P.G.

Date of hearing: 18.03.2015.

Date of Judgment: 18.03.2015.

J U D G M E N T

Naimatullah Phulpoto, J-. Appellant/ accused Saith son of Muhammad Moosa Essani, through this instant appeal has challenged the judgment dated 04.09.2014, passed by learned Judge, Anti-Terrorism Court, Shikarpur in Special Case No.24/2012, re State v. Papoo and others, arising out of Crime No. 62/2012, registered at Police Station Sultan Kot, Shikarpur, for offences under Sections 324, 337-H (2), 385, 148, 149 P.P.C and Section 6 (2) (k) of Anti-Terrorism Act, 1997.

2. According to the case of prosecution, on 02.07.2012 complainant Abdul Majeed Khan lodged F.I.R at P.S Sultan Kot, stating therein that, they own agricultural land in Deh Belo Sultan Kot, they used to visit their lands, where they have constructed Otaq. Accused Papoo Essani and others asked them to pay “Bhatta” money else they would cause them harm and would not allow them to cultivate the land. On 30.06.2012, in the evening complainant alongwith brothers, namely, Agha Zarar Jan and Agha Zaraq Khan went to visit their lands, where they stayed night at their Otaq. The bulbs were burning. On 01.07.2012 at about 12.30 a.m. (night), they saw the accused on the light of bulbs as Papoo armed with Kalashnikov, 2. Niaz armed with G-3 rifle, 3. Moutbar armed with Kalashnikov and five unidentified accused armed with Kalashnikovs to whom complainant party claimed to identify, if shown them again, and asked the complainant party that they have not paid “Bhatta” money, hence they would not spare them. Thereafter, all the accused fired upon them with their weapons with intention to commit their murder but complainant party took shelter of walls and saved themselves. Thereafter, all the accused made their escape good and went towards south, while firing in air. The complainant party then returned back to Sultan Kot where they lodged F.I.R. IT was recorded vide Crime No. 62/2012, registered at P.S Sultan Kot under Sections 324, 337-H (2), 385, 148, 149 P.P.C and Section 6 (2) (K) of Anti-Terrorism Act, 1997.

3. After usual investigation, case was challaned in the Court of Anti-Terrorism Court, Shikarpur, under above sections, wherein appellant Saith and co-accused Niazoo and Moutbar were shown as absconders. The N.B.Ws were issued against absconding accused. Thereafter case was ordered to proceed against absconding accused under Section 512 Cr.P.C. The proceedings under Sections 87 & 88 Cr.P.C were concluded and they were then declared proclaimed offenders.

4. Charge was framed against accused Ghamthar and Papoo. Case proceeded against appellant Saith in his absentia. On conclusion of trial, the learned trial Court acquitted all the accused persons including appellant Saith of the charge under Sections 324, 337-H (2), 385, 148, 149 P.P.C and Section 6 (2) of Anti-Terrorism Act, 1997. However, the learned trial Court convicted appellant under Section 21-L of the Anti-Terrorism Act, 1997 on account of his absconsion and sentenced him to 03 years R.I.

5. Appellant Saith Essani was subsequently arrested, and approached this Court by filing the aforesaid appeal against his conviction and sentence recorded in his absentia, as stated above.

6. Mr. Safdar Ali Ghouri, Advocate for the appellant, has argued that conviction of the appellant under Section 21-L of the 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 there was no evidence of absconsion against the appellant. He relied upon case of Muhammad Arif versus The State, reported in 2008 SCMR 829 and Mir Ikhlaq Ahmed versus The State, reported in 2008 SCMR 951.

7. Mr. Khadim Hussain Khooharo, learned Deputy Prosecution General, conceded the above legal position but argued that case may be remanded to trial Court for re-trial in presence of accused Saith.

8. We have heard the learned counsel for the parties and have carefully perused the record.

9. Record reflects that proceedings under Sections 87 & 88 Cr.P.C were initiated for declaring the accused Saith Essani as proclaimed offender for the purpose of proceedings with the case in his absentia. Thereafter, charge was framed against present accused and others for offences punishable under Sections 324, 337-H (2), 385, 148, 149 P.P.C and Section 6 (2) of Anti-Terrorism Act, 1997. Record further reveals that no charge was framed against the appellant under Section 21-L of the Anti-Terrorism Act, 1997. Trial Court also failed to formulate a point for determination regarding the offence under Section 21-L of the Anti-Terrorism Act, 1997 in the impugned judgment. There was absolutely no evidence to prove that absconsion of the appellant was intentional and deliberate and no finding has been recorded by the trial Court 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. As such, procedure adopted by the learned trial Judge in convicting and sentencing the appellant under Section 21-L of the Anti-Terrorism Act, 1997 appears to be absolutely illegal.

10. We have gone through Section 21-L of the Anti-Terrorism Act, 1997, which 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.”

11. The appellant without filing an application 19 (12) of the Anti-Terrorism Act, 1997 before the trial Court directly approached this Court through the instant appeal. In this regard, it may be suffice to say that under Section 25 of the Anti-Terrorism Act, 1997, there is no bar 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.

12. In the present case, appellant was acquitted for offences under Sections 324, 337-H (2), 385, 148, 149 P.P.C and Section 6 (2) of Anti-Terrorism Act, 1997. There is no evidence on record to prove the offence under Section 21-L of the Anti-Terrorism Act, 1997 against the appellant. Learned Deputy Prosecutor General also did not support the impugned judgment but argued for remand of case.

13. In view of the above discussion, we are of the firm view that conviction of appellant Saith Essani for offence under Section 21-L of the Anti-Terrorism Act, 1997, recorded by the learned Judge, Anti-Terrorism Court, Shikarpur, is violative of Articles 9 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

14. For the above-stated reasons, the appeal is allowed, conviction and sentence awarded to the appellant by the trial Court for offence under Section 21-L of the Anti-Terrorism Act, 1997, by judgment dated 04.09.2014, are set aside and the appellant is acquitted. Appellant is in custody, he shall be released forthwith if he is not required in some other case.

15. Above are the detailed reasons for our short order passed in Court on 18.03.2015.

Judge

Ansari/*