ORDER SHEET

Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Muhammad Faisal Kamal Alam.

Cr.Jail Appeal No.D-44 of 2015

1. For orders on office objection

2. For Katcha Peshi

Date of hearing: 14.04.2016

Date of reasons:29.04.2016

Mr. Ali Ahmed Khan, advocate for appellant.

Mr. Zulfiqar Ali Jatoi, Deputy Prosecutor General.

O R D E R

AQEEL AHMED ABBASI, J. Instant criminal jail appeal has been filed by the appellant Mehrab Teghani from jail, whereas, appellant was convicted in absentia by Anti-Terrorism Court-II, Sukkur Division Sukkur vide judgment dated 17.09.2007, whereby, the appellant has been convicted under Section 302 (b) r/w Section 149 PPC and sentenced to imprisonment for life, whereas, for offence under Section 148 PPC, the appellant has been sentenced to suffer R.I for three years, for offence under Section 324 r/w Section 149 PPC the appellant has been sentenced to suffer R.I for 10 years and to pay a fine of Rs.5000/- and in case of default in payment of fine to suffer S.I for three months more, for offence under Section 7 (a) of ATA, 1997 the appellant has been sentenced to imprisonment for life and also directed to pay Rs.30,000/- as compensation to the legal heirs of the deceased and in case of default in payment of compensation, the appellant has to suffer S.I for six months more. All the aforesaid sentences have been ordered to run concurrently.

2. Learned counsel for the appellant, at the very outset, submitted that since, the appellant has been admittedly convicted in absentia, therefore, he is entitled to be given an opportunity of fair trial and to defend himself in accordance with law. Per learned counsel, the impugned judgment is liable to be set aside, as the appellant was never served with any summon or warrant issued by the learned trial Court nor there is any material available with the prosecution which may connect the appellant with the alleged crime. It has been further stated by the learned counsel for the appellant that the appellant was produced before the learned Anti-Terrorism Court on 18.05.2015, as he was already under custody in some other case and therefore, he was remanded to jail custody in instant case as well, and since then, he is behind the bars. Whereafter, the appeal was filed from jail on 20.05.2015 as there is no delay in filing of appeal from the date of knowledge of the conviction of the appellant through impugned judgment. Learned counsel for the appellant has referred to the provisions of section 19 (12) as well as Section 25 of the ATA, 1997 and also referred to Articles 9, 10 and 10 (a) of the Constitution of Islamic Republic of Pakistan, 1973 and submits that every accused is entitled to fair trial and to defend himself, therefore, the conviction in absentia in the instant case, is liable to be set aside and the matter may be remanded to the trial Court, whereas, the trial Court may be directed to conduct fresh trial in respect of present appellant. Learned counsel for the appellant submits that though the appellant has a good case on merits as well, whereas, co-accused Janoo alias Jan Muhammad in the aforesaid crime has already been acquitted by this Court vide judgment reported as Janoo alias Jan Muhammad v. The State (2010 P.Cr.L.J 110). However, according to learned counsel for the appellant, the appellant will be satisfied if the impugned judgment is set aside and matter is remanded to the trial Court for his fresh trial. Learned counsel for the appellant has further submitted that in the impugned judgment there is no finding recorded by the learned trial Court which may suggest that either the present appellant was served during the trial or he has deliberately avoided to surrender before the Anti-Terrorism Court to face the trial, therefore, there shall be no impediment before the learned trial Court while considering the request of the appellant for fresh trial in terms of section 19 (12) of ATA, 1997. In support of his contentions, learned counsel for the appellant has placed reliance on the case of Imdad and 2 others v. The Sate (2015 YLR 2036), Muhammad Arif v. The State (2008 SCMR 829) and Ali Hassan v. The State (2009 MLD 1198).

3. Learned Deputy Prosecutor General does not controvert such factual and legal position as submitted by learned counsel for the appellant and submits that the appellant may be directed to appear before the trial Court by filing an application under Section 19 (12) of ATA, 1997, whereas, the learned trial Court may be directed to decide the same strictly in accordance with law, keeping in view of hereinabove facts and circumstances of the case as stated by the learned counsel for the appellant.

4. We have heard learned counsel for the appellant and the learned Deputy Prosecutor General, perused the record as well as the impugned judgment passed in the instant case. We have also examined the decision of this Court in the case of Imdad and 2 others v. The State (supra), which according to learned counsel for the appellant is applicable to the case of present appellant. It will be advantageous to reproduce the finding as recorded by a DB of this Court in para 4 of the aforesaid judgment, which reads as follows:

“We have also examined Articles 9 and 10 of the Constitution of Islamic Republic of Pakistan, 1973 and the provisions of sections 19(12) and 25 of the Anti-Terrorism Act, 1997, and have also gone through the case-law relied upon by the learned counsel for the appellant, which shows that in case of conviction recorded in absentia the convict has two options available in law, either (a) to approach the learned trial Court within the stipulated period with a request to set aside his conviction recorded in absentia, in terms of section 19(12) of the Anti-Terrorism Act, 1997, by showing that he did not abscond deliberately from the Court during the trial or (b) to surrender before this Court by filing an appeal under Section 25 of the Anti-Terrorism Act, 1997, with a prayer to set aside the conviction awarded in absentia and to acquit him on merit or to remand the matter to the trial Court for fresh trial by setting aside the impugned judgment. In the instant matter, it appears that all the accused persons in the aforesaid crime including appellants against whom conviction has been awarded in absentia and the accused Baban (Mairajuddin), who has been shown absconder and whose case has been kept on dormant file, were not present before the learned trial Court, hence no opportunity whatsoever to defend their case on merit was provided to them. The impugned judgment also does not suggest that the appellants have deliberately avoided the process of the Court or remained willfully absent from the Court.

In view of hereinabove, we are inclined to set aside the impugned judgment and the conviction awarded to the appellants in absentia and remand the case back to the learned Anti-Terrorism Court, Hyderabad to decide the case of the appellants afresh, after providing them proper opportunity of being heard. The appellants shall surrender before the learned trial Court and shall attend the Court on each and every date, however, during the trial they shall remain on bail in terms of orders dated 26.03.2013 and 03.04.2013 respectively passed by this Court in respect of the appellants. However, if the appellants misuse the concession of bail, the learned trial Court shall be at liberty to pass appropriate orders in accordance with law.

Both the appeals stand disposed of in the aforesaid terms.”

5. In view of hereinabove facts and circumstances of the case and by respectfully following the ratio of the decision of the above cited judgments and keeping in view the no objection extended by the learned DPG, we are inclined to set aside the impugned judgment and the conviction awarded to the appellant in absentia and remand the case back to the learned Anti-Terrorism Court, Sukkur to decide the case of the appellant afresh after providing opportunity of being heard. The appellant, who is already behind the bars shall be produced before the learned Anti-Terrorism Court, Sukkur, from the jail and will file application under Section 19 (12) of Anti-Terrorism Act, 1997, which shall be considered and decided strictly in accordance with law, keeping in view hereinabove facts and circumstances of the case and by applying ratio of the judgment, as referred hereinabove, whereafter, reasonable opportunity will be provided to the appellant to defend his case in accordance with law.

Appeal stands disposed of in the aforesaid terms.

JUDGE

N.M.