IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-39 of 2018

Present

Mr. Justice Rasheed Ahmed Soomro,

Mr. Justice Irshad Ali Shah,

Appellant : None appeared for appellant

State : Mr. Khadim Hussain Khooharo, A.P.G

Date of hearing : 31.07.2018

Date of decision : 31.07.2018

J U D G M E N T

IRSHAD ALI SHAH, J.-, The appellant by way of instant appeal has impugned the conviction and sentence awarded to him by learned Judge, Anti-Terrorism Court, Jacobabad, by way of judgment dated 23.06.2010 which inter-alia reads as under;

“I am satisfied with the deliberate abscondance of accused Qadir Bux alias Baboo s/o Rahim Bux by caste Tunio, Babloo s/o Ghous Bux by caste Tunio, therefore, above named absconding accused are hereby convicted and sentence U/s.21-L of Anti Terrorism Act, 1997, for (Five Year) with forfeiture of their moveable and immoveable property”.

2. The facts in brief necessary for disposal of instant appeal are that an FIR was lodged by complainant Ghulam Nabi with P.S Gaheja, District Shikarpur, alleging therein that the appellant and others have abducted PWs Sarfraz, Saddam Hussain and Gulshan Umrani for ransom. On investigation, the challan of the case was submitted by the police before the learned trial Court placing the name of appellant therein to be one of the absconding accused.

3. At trial, co-accused Bashir Ahmed, Mehar, Ismail and Qadir Bux denied the charge, and the prosecution to prove it examined complainant Ghulam Nabi, PW Saddam Hussain, PW Abdul Khaliq, PW Sarfraz, SIO/SIP Abdullah Sethar, Mashir Attaullah, SIO/SIP Ghulam Abbas, and then closed the side.

4. On evaluation of evidence so produced, the learned trial Judge while answering the Point No.4 of his judgment, acquitted all the accused involved in the above said offence by making the following observation;

“Since the prosecution has miserably failed to prove the charge, against accused beyond the shadow of reasonable doubt, therefore accused Bashir Ahmed s/o Haji Adam by caste Tunio, Mehar s/o Taj Muhammad by caste Tunio, Ismail s/o Hakim alias Hako by caste Tunio, Qadir Bux s/o Hadi Bux by caste Tunio, as well as absconding accused Qadir Bux alias Baboo s/o Rahim Bux by caste Tunio, Karim Bux s/o Talib by caste Tunio, Baboo s/o Ghous Bux by caste Tunio are acquitted from Charge U/s.265-H(i) Cr.PC. Accused Bashir Ahmed is present on bail, his bail bond stand cancelled and surety is hereby discharged. Accused Mehar, Qadir Bux and Ismail are present in custody produced by Jail authorities and remanded back with direction to release them forthwith if they are not required in some other case/crime respectively. Issue such release writ for accused to the concerned jail authorities, respectively”.

5. The appellant on having come to know of his conviction and sentence for an offence punishable u/s.21-L of Anti Terrorism Act, 1997 by way of above said judgment, has impugned the same before this Court by way of instant appeal, as stated above.

6. None has come forward to argue the instant appeal on behalf of the appellant. It was therefore decided by us to dispose of the instant appeal after hearing learned A.P.G for the State.

7. It is contended by leaned A.P.G for the State that co-accused Karim Bux with similar conviction has already been acquitted by this Court vide judgment dated 21.05.2014, passed in Criminal Appeal No.D-142/2010. By contending so, he did not support the conviction recorded against the appellant too. In support of his contention he relied upon case of Arbab Khan vs. the State (2010 SCMR-755).

8. We have considered the above arguments and perused the record.

9. Admittedly, after framing of the charge, the case proceeded and on conclusion of the trial, all the accused involved in the case were acquitted of the offence/charge u/s.265-H(i) Cr.PC. By recording such acquittal, the learned trial Judge convicted and sentenced the appellant for an offence punishable u/s.21-L of Anti Terrorism Act, 1997, as is detailed above.

10. Section 21-L of Anti Terrorism Act, 1997 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 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 bare perusal of said section reveals that it entails punishment of imprisonment and fine. No fine was imposed upon the appellant but his moveable and immoveable property was forfeited by learned trial Judge, which was not permissible at law. The punishment which is not prescribed by law could not be approved.

12. It would be advantageous to reproduce Section 367 Cr.PC, which reads as under;

“Section 367 Cr.PC. Language of Judgment: Contents of Judgment. (1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, or in English, and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every pages of such judgment shall be signed by him”.

13. In the instant case, neither any charge for an offence punishable u/s.21-L of Anti Terrorism Act, 1997, was framed against the appellant. No evidence in that respect was recorded. No point for determination in that respect was framed. No decision in that respect was arrived at by learned trial Court. What to talk of reasons. In that situation, the conviction and sentence recorded against the appellant being violative of Section 367 Cr.PC could not be sustained.

14. The appellant(in his absentia), indeed has been convicted and sentenced for an offence punishable u/s.21-L of Anti Terrorism Act, 1997 in cursory manner by learned trial Judge by adopting the procedure, which was violative of Section 9 and 10 (1) of Constitution of Islamic Republic of Pakistan and Section 10 (11-A) of Anti Terrorism Act, 1997, which could not be consented.

15. In case of Mir Akhlaq Ahmed and others vs. the State (2008 SCMR-951), it was held that;

“In view of the above, we fell that the trial of appellants, in absentia, undertaken by the Special Judge, Anti-Terrorism Court, was violative of Articles 9 and 10(1) of the Constitution and sectoin10(11-A) of the Anti-Terrorism Act,1997, thus, cannot be allowed to sustain. Furthermore, the appellants were not afforded any opportunity of hearing and thus, they were condemned unheard which is contrary to the principle of natural justice. We are convinced that the judgments, convictions and sentences rendered and awarded by both the Courts, in the absence of the appellants, to their extent are not sustainable under the law and violative of the Constitution and law”.

16. For what has been discussed above, the conviction and sentence recorded against the appellant by learned trial Court (by way of judgment dated 23.06.2010) could not be sustained, it is set aside. Consequently, the appellant is acquitted of the above said offence.

17. The instant appeal is disposed of in above terms.

J U D G E