ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Jail Appeal No. 28 of 2016

______________________________________________________________________ DATE ORDER WITH SIGNATURE OF JUDGE ______________________________________________________________________

Present:

Mr. Justice Aqeel Ahmed Abbassi &

Mr. Justice Ghulam Qadir Leghari.

1. For orders on O/Objection as at Flag.

2. For Regular Hearing.

17.03.2016

Mr. Manzoor Hussain Ansari, advocate for the appellant.

Mr. Zulifqar Ali Jatoi Deputy Prosecutor General.

O R D ER.

Through instant Jail appeal, the appellant has impugned Judgment dated.11.01.2011 passed by the Judge Anti-terrorism Court Khairpur in Special case No.04-A of 2006 State versus Ghulam Ali and others, emanating from crime No.63/2003 registered at Police Station, Tando Masti Khan, for offence under sections 365/A, 302, 324, 147, 148, 149 PPC and 7 of Anti-Terrorism Act,1997, whereby the appellant has been convicted and sentenced in absentia.

Learned counsel for the appellant submits that appellant was never served with the summons from the trial Court, nor was required by the police to join the investigation, therefore, could not attend trial, whereas according to learned counsel while passing the impugned Judgment, the learned trial Court has violated the express provisions of section 19 of Anti-Terrorism Act,1997, as no opportunity has been provided to the appellant to defend the case. It has been further submitted that trial in absence of accused is otherwise violation of Article 9 and 10 of the Constitution of Islamic Republic of Pakistan,1973, whereas, an accused is entitled to fair trial. Per learned counsel, in terms of section 19 subsection (12) of Anti-Terrorism Act,1997, the appellant is entitled for fresh trial hence requests that the impugned Judgment in respect of the appellant passed in absentia, may be set aside and the appellant may be allowed to appear before the learned trial Court by filing an application under section 19 of Anti-Terrorism Act,1997 for his fresh trial, in accordance with law. In support of his contention, learned counsel for the appellant has relied upon the judgments of Hon’ble Supreme Court in the case of Muhammad Arif versus The State 2008 S C M R 829 and Mir Ikhlaq Ahmed and another versus The State 2008 S C M R 951.

Learned D.P.G could not controvert the legal position as stated hereinabove, and does not oppose the request of the learned counsel for the appellant to the extent that appellant is entitled to fresh trial as the impugned judgment has been passed in absentia and submits that the appellant may be directed to approach learned trial Court and move an application under section 19 sub-section (12) of Anti-Terrorism Act,1997 for his fresh trial in accordance with law, whereas the judgment in respect of the appellant may be set aside.

It is an admitted position that appellant Ghulam Shabbir has been convicted in absentia, whereas neither any counsel was arranged by the learned trial Court, nor the appellant has been given opportunity to defend himself during trial, which amounts to violation of Section 19 of Anti-Terrorism Act,1997 and also Article 9 & 10 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly by respectfully following the ratio of above cited judgments of Hon’ble Lahore High Court and the Hon’ble Supreme Court, instant appeal is allowed by setting aside the impugned judgment in respect of appellant Ghulam Shabbir alias Shabiro son of Zaidi Jagirani. The appellant may approach the learned trial Court by filing an application under section 19 subsection (12) of Anti-terrorism Act,1997 with a request for fresh trial in accordance with law, whereas, the learned trial Court shall proceed in accordance with law, keeping in view the relevant legal provisions of Anti-terrorism Act, 1997 and the dictum as laid down in the above cited judgments.

Instant appeal is allowed in the above terms.

J U D G E

JUDGE

Irfan/PA