ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Revn. Appln. No.D-12  of  2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

16.6.2009.

For orders on M. A. No. 1011/2009.

Mr. Asif Ali Abdul Razak Soomro, advocate for the applicant.

Mr. Azizul Haque Solangi, Asst. A. G.

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                   Granted.  The matter is taken up for katcha peshi and by consent of applicant’s advocate and the Assistant Advocate General, the same is heard on merits for final disposal.

          2.       By its judgment dated 11.3.2006, the Anti-Terrorism Court-I, Sukkur and Larkana Divisions, at Sukkur, convicted six persons for committing offences of murderous assault upon police etc and sentenced them to various sentences, the longest of which was imprisonment for 10 years.

          3.       Out of the six convicts, two were present before the Court, while the four, including the present applicant, were convicted in absentia. 

          4.       On the appeal of the two convicts, who were present before the Court, namely, Mumtaz and Ameen, this Court by order dated 23.4.2008 reduced the longest term of imprisonment from 10 years to seven years.

          5.       After his arrest, the applicant approached the trial Court under Section 19(12) of the Anti-Terrorism Act, 1997, for setting aside his conviction, on the ground that he did not abscond.  However, the trial Court refused to set aside the conviction by observing that he was absconding and there was sufficient evidence against him regarding the commission of offence.

          6.       Relying upon the precedents of Muhammad Arif versus The State, reported in 2008 SCMR 829 and Mir Ikhlaq Ahmed versus The State, reported in 2008 SCMR 951, the learned Counsel for the applicant contends that the Supreme Court has held that trial in absentia is repugnant to Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973. 

          7.       The learned Asst. A.G. has no objection for setting aside conviction and sentence of the applicant and sending his case to the trial Court for fresh trial as, according to him, the precedents of the Supreme Court are binding.

          8.       In the precedents relied upon by the learned Counsel for the applicant, the Supreme Court has clearly held that trial in absentia is repugnant to Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973.  In both the cases the convictions and sentences awarded in absentia were set aside and the cases were remanded to the trial Court for fresh trial in presence of the accused.

          9.       Following the precedents of the Supreme Court, the conviction and sentence awarded to the applicant by the trial Court in absentia are set aside and his case is remanded back to the trial Court for fresh trial in presence of the applicant.

                                                                                                JUDGE

                                                                   JUDGE