HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Jail Appeal No.D-02 of 2018

Present:

Mr. Justice Khadim Hussain M. Shaikh

Mr. Justice Amjad Ali Sahito

Appellant : Bilawal son of Rahib Dasti through

Mr.Naveed Ali Khokhar, Advocate.

State : Through Mr.Khadim Hussain

Khooharo, Addl.Prosecutor General.

Date of hearing : 17.04.2018.

Date of decision: 17.04.2018

J U D G M E N T

AMJAD ALI SAHITO, J.–Appellant Bilawal son of Rahib Dasti was tried and acquitted from the charge punishable u/s.365-A, 337- H(ii), 148,149 PPC r/w Section 6/7 A.T.A Act, 1997, vide Crime No.16/2011 registered at Police Station, Dodapur, and he was convicted under section 21-L of Anti Terrorism Act, 1997 and sentenced to Five Years imprisonment in his absentia vide judgment dated 29.05.2012 passed by learned Special Judge, Anti-Terrorism, Jacobabad in Special Case No.06 of 2012(New) and Special Case No.35 to 2011(Old).

2. Briefly stated the facts of the prosecution case are that on 29.05.2011, at about 1730 hours, complainant Muhammad Hatim son of Achar Dasti lodged FIR with P.S Dodapur, in which he mentioned that about 24/25 days back, at evening time, his nephew Faulad left his house for grazing the cattle towards Gul Shakh, later-on, he alongwith Ali Akbar and Barkat Ali left their house for the above said place, where at about 05.00 p.m, they noticed a white color Car standing over Gul Shakh, where one unknown person with T.T pistol was also standing besides it, while accused namely Mumtaz son of Rabban Dasti with K.K, Bilawal son of Rahib Dasti with rifle, both residents of Larkana City and third one was Imran son of Mir Hassan by caste Dasti, resident of own house near Kotri, Taluka Garhi Khairo, while the remaining two were unidentified, who if seen again will be identified, were armed with T.T pistols. All of them were taking away his nephew Faulad on weapon point. On coming near to them, all of the accused made aerial firing upon the complainant party and abducted Faulad with direction to pay ransom of rupees Ten Lacs for his release. Owing to fear of weapons, they did not come near to the accused. Thereafter, all the accused after abducting Faulad went away towards western side. Later-on, the complainant got registered his FIR after obtaining order from the Court of Sessions Judge, Jacobabad.

3. On 22.06.2011, the police after completion of usual investigation submitted report/challan under section 512 Cr.PC against all the accused before the learned trial Court showing them as absconders by disclosing their residence at Larkana City. Subsequently, the NBWs were issued against all the absconding accused for the same address, which was un-served by the process server by submitting such report stating therein that all the absconding accused have shifted away to some unknown place from Bhains Colony Larkana, whereupon such publications were got published in daily newspapers daily “Ummat and Awami Awaz and Sukaar” but to no avail. After completion of usual formalities, the case against all absconding accused was kept on dormant file vide order dated 14.12.2011. Thereafter, on 08.03.2012, one of the accused namely Imran joined the trial after seeking pre-arrest bail.

4. On 16.03.2012, the charge at Exh.2 was framed by learned trial Court under Section 365/A,148,149,337-H(ii) PPC r/w Section 6/7 of ATA Act, against accused Imran and absconding co-accused Mumtaz and Bilwal, wherein the accused pleaded not guilty and claimed to be tried.

5. At the trial, in order to establish accusation against the accused, the prosecution examined following witnesses:-

(i) PW-01 complainant Muhammad Hatim at Ex.03, he produced FIR atEx.03/A.

(ii) PW-02 Abductee Faulad atExh.04.

(iii) PW-03 Barkat Ali atExh.05.

(iv) PW-04 Inspector Amanullah at Exh.06, he produced mashirnama of place of incident at Exh.06/A, mashirnama of presence of abductee Faulad at P.S at Exh.06/B.

These witnesses were cross examined by the counsel for appellant as well as SSP for the State. Thereafter, the side of prosecution was closed by learned SPP vide Statement at Ex.07.

6. The statement of the accused Imran was recorded under Section 342 Cr.PC at Exh.08, in which he denied the prosecution allegations and stated that he is innocent. However, he neither examined himself on oath nor led any evidence in his defense.

7. The learned Trial Court, after hearing the counsel for the parties and evaluation of the evidence, acquitted accused Imran including absconding co-accused Mumtaz and Bilawal from the charge by extending them benefit of doubt while accused Mumtaz and Bilawal were convicted under section 21-L of the Anti Terrorism Act, 1997, and sentenced to Five Years imprisonment in their absentia, hence the instant appeal has been preferred by the appellant Bilawal against his conviction.

8. Mr.Naveed Ali Khokhar, learned counsel for the appellant argued that the present appellant alongwith co-accused Imran and Mumtaz was already acquitted after full dress trial by learned trial Court, while the conviction to the present appellant in absentia was not awarded in accordance with law; that co-accused Mumtaz Ali with utmost similar role has already been acquitted by this Court vide order dated 23.04.2013, therefore, the present appellant is also entitled for the same relief. He further argued that the conviction awarded to the present appellant by learned trial Court may be set aside and lastly prayed for allowing of instant appeal.

9. Mr.Khadim Hussain Khooharo, learned Additional Prosecutor General on the other hand supported the impugned judgment passed by learned trial Court. However, he conceded that co-accused Mumtaz was acquitted by this Court vide order 23.04.2013 passed in Cr.Appeal No.D-22 of2013.

10. We have heard the learned counsel for the parties and have gone through the material with their assistance.

11. On assessment of the material brought on record, it appears that complainant Muhammad Hatim and abductee Faulad did not implicate any of the accused in their statements recorded before learned trial Court, who resultantly were acquitted by extending them benefit of such doubt while the present appellant and other absconding co-accused Mumtaz were convicted for being absconders (21-L of the Act). The co-convict Mumtaz however later was acquitted by this Court vide order 23.04.2013 passed in Cr.Appeal No.D-22 of 2013.

12. The conviction to the appellant is a sole consequence of his abscondence, therefore, it would be proper and justified to examine its scope in special law while comparing it with procedure, provided in ordinary criminal trial. The term “abscond” with its derivatives is not defined in the Code of Criminal Procedure, 1898(hereinafter referred to as the “Code”) although it occurs in several sections viz. section 87, 90(a) and 512 of the Code and section 172 of the Pakistan Penal Code 1860. Section 87(1) of the Code provides that if any Court has reason to believe after taking evidence that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation, requiring him to appear at a specified place and time before it not less than thirty days from the date of publication of such proclamation. Under Section 88 of the Code, the property of person absconding is attached. The Court issuing a proclamation under section 87 Cr.PC may at any time order the attachment of any property moveable or immoveable or both, belonging to the proclaimed person. Similarly, under section 90(a) of the Code, a Court may in lieu of the summons for the appearance of any person, issue a warrant for his arrest, if it sees reasons to believe that he has absconded or will not obey the summons. Section 512(1) of the Code also lays down that 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 Sessions 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 recorded their depositions. It appears that in this context the term “abscond” with its derivatives has been used in its ordinary sense in the criminal law in force in Pakistan and not in any technical sense. It means a person who is intentionally evading or avoiding the service of notices, summons or warrants issued to him and intentionally makes himself inaccessible to the process of the law. However, in ordinary criminal law (procedure) no conviction could be recorded in absentia because normally the ‘abscondence’ alone is not a substitute for proof of guilt as held in the case of Rahimullah Jan vs. Kashif and others reported at (PLD 2008 SC- 298), wherein the Honourable Supreme Court of Pakistan has held that;-

“8. In so far as the abscondence of respondent Kashif is concerned it may be stated that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicion after all are suspicions. The same cannot take place of proof.

13. The ordinary Court would be required to follow the procedure as referred above and then to keep it on dormant file which would be opened as and when the absconding accused appears or is brought before the ordinary trial Court. In short, it could safely be said that procedure prima facie was/is aimed to bring the accused or a witness before the Court of law by resort to coercive measures and not to try and convict him in absentia because in Criminal Administration of Justice it is a settled law that abscondence could at the most be a suspicious circumstance against the accused and nothing more. Further, in normal procedure, the universally accepted principle of law that nobody should be condemned unheard operates with its full application hence neither a trial nor a conviction in ordinary Criminal procedure is permitted. However, there was introduced an exception in the Act as by provision of Section 19(10) of the Anti Terrorism Act 1997(hereinafter referred to as the “Act”), the trial in absentia has been made permissible however legislature attempted to satisfy the requirement of fair-trial by insisting as:-

“19(10) Any accused person may be tried in his absence if the Anti-Terrorism Court, after such inquiry as it deems fit , is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice.

Provided that the accused person shall not be tried under this sub-section unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days falling which action may also be taken against him under section 88 of the Code.

Provided further that the Court shall proceed with the trial after taking necessary steps to appoint an Advocate at the expenses of the State to defend the accused person who is not before the Court

Explanation. An accused who is tried in his absence under this sub-section shall be deemed not to have admitted the commission of any offence for which he has been charged.

14. From above, it is evident that permissible trial in absentia even was made subject to appointment of an advocate to defend in absence and treating the plea as not guilty however since these even legally not sufficient to satisfy the lust of fair-trial therefore a conviction by the Special Court recorded in absentia was compulsorily made liable to be set-aside if the absconding accused, on his appearance, satisfy the Court that his absence was not deliberate, as is evident from provision of Section 19(12) of Anti Terrorism Act, 1997 which reads as:

(12) If, within sixty days from the date of his conviction, any person tried under subsection (1) appears voluntarily, or is apprehended and brought before (the Anti-Terrorism Court), and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceeding against him, (the Anti-Terrorism Court) shall set aside his conviction and proceed to try him in accordance with law for the offence with which he is charged.

Provided that (the Anti-Terrorism Court) my exercise its powers under this sub-section in a case in which a person as foresaid appears before it after the expiration of the said period and satisfies it that he could not appear within the said period by reason of circumstances beyond his control. .

15. Now, we would take the consequence of an act of abscondence which (term), as already discussed, is a deliberate action thereby knowingly avoiding process of law. Since such act is against the obligation which is expected from every citizen within meaning of its obligations as arising out of Article 5 of the Constitution therefore, even in Ordinary law (PPC) such act is an offence. Section 172 of the Pakistan Penal Code, 1860, provides that whoever absconds in order to avoid being served with summons, notice or order or other proceedings from any public servant competent in this behalf shall be punished with simple imprisonment for a term which may extend to one month or with fine up to Rs.500 or with both. However, again in ordinary procedure / law even such an accused legally cannot be tried or convicted in his absentia.

16. For the first time, punishment for abscondence was provided in Section 21-L of the Anti Terrorism Act, 1997, which states that;-

“21-L. Punishment of 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”.

17. From the bare reading of Section 21-L of the Act, it appears that if any person abscond or avoids arrest evades appearance before any inquiry, investigation or Court proceedings then he will be convicted. Since, this has been made an independent offence and punishment provided is ‘not less than five years’ hence it would not fall within meaning of Section 21K of Anti Terrorism Act, 1997, which reads as:

“21K. Offence triable by way of summary procedure. All offences under this Act punishable with imprisonment for a term of not more than six months with or without fine shall be tried by way of summary procedure.”

Thus, there appears no reason to deviate from procedure, provided under Section 19(10) to (12) of the Act even for trial of such offence because the Act recognizes two kind of trial procedure one is provided by Section 19 of the Act and exception thereto is by Section 21K of the Act. The limit, provided for less punishment for offence under section 21-L, brings it out of the scope of Section 21K (summary procedure). It may well be added that if the procedure, provided by Section 19(10) to (12) of the Act is not followed in trial of such offence (21-L) it shall be a sheer violation of fair-trial which otherwise is guaranteed by Article 9 and 10-A of Constitution which, we are sure in believing, cannot be the intention of the legislature. Thus, we would conclude that even if at any stage of the case, the Special Court comes to a conclusion that the act of abscondence does constitute an offence within meaning of Section 21L then it would be required to follow the procedure, provided by Section 19 of the Act. In short, no conviction legally could sustain for offence u/s 21L of the Act if requirement of Section 19(10) to (12) of the Act are not followed as the same otherwise are attempts to satisfy the requirement of Article 10-A of Constitution.

18. Reverting to the case in hand, none of the accused including present appellant was implicated by the complainant as well as abductee who are said to be star witnesses of the case, hence it is case of no evidence. The NBWs issued against the appellant is showing his address at Larkana City, where millions of peoples reside and the report submitted by the process server reveals his residence at Bhains Colony Larkana, when such address of the appellant is not mentioned in NBWs then who informed the process server that the said appellant is residing at Bhains Colony Larkana, which appears that simply the formalities were completed by the learned trial Court and no such proof was produced by the prosecution to believe that the warrants were served upon the appellant who willfully remained absconder. The reference in this context is made to the case of Haji Muhammad v. The State(PLD 2003 Supreme Court-262), wherein the Hon’ble Supreme Court of Pakistan has held that;

“6. Therefore, keeping the sentence to remain intact was unwarranted and after having set aside the conviction trial Court may have not kept intact the sentence because conviction in a crime is followed by sentence and if the conviction is not sustainable then the sentence also cannot be allowed to remain intact, otherwise presumption would be that the plea put forward by the petitioner for not attending the Court was not found to be acceptable. It may be noted that in such-like cases where an accused has been convicted/sentenced in absentia the Court is bound to follow the relevant provision of law strictly because conviction/sentence has been recorded without providing him opportunity of hearing and believing the statement of prosecution. It is also important to note that as far as main case failing within the mischief of sections 302/365-A/120-B/109/34, PPC r/w Section 7-L and 21-L of the Act, it concerned, the prosecution failed to established accusation against the petitioner, therefore, inference can conveniently be drawn that he was not involved in the commission of offence, as such recording conviction in his absence in terms of section 21-L of the Act, 1997 was so illegal.”

19. In addition to this, when co-accused Mumtaz with utmost similar role has already been acquitted by this Court vide order dated 23.04.2013 passed in Cr.Appeal No.D-22 of 2013, therefore, the present appellant is also entitled for the same relief.

20. In view of above, the conviction recorded against the present appellant by learned trial Court is set-aside. Accordingly, the instant appeal is allowed.

21. These are the detailed reasons of the short order dated 17.04.2018, announced by us.

J U D G E