IN THE HIGH COURT OF SINDH, KARACHI
PRESENT:- Mr.Justice Sarmad Jalal Osmani
Mr. Justice Rahmat Hussain Jafferi
Date of hearing 8.11.2004
Appellant Muhammad Jamil Ahmed & another through
M/s.S.M. Iqbal & S.Mahmood Alam Rizvi, Advocate
Respondent (State) through Special Prosecutor, Mr. Habib Ahmed, AAG
2. On 07.4.2003, the learned AAG raised an objection to the maintainability of appeal on the ground that the appellants, who were tried in absentia, after declaring them absconders and issuing proclamations, have neither surrendered before trial Court or this Court.
3. On the above point, the learned AAG has stated that a remedy as provided under Section 19(12) of Act. 1997, was provided but the appellants failed to exhaust the said remedy, therefore, they are not entitled to file the appeal. He has further argued that even if they have filed the Appeal then their presence is required as the appeal, which is a vested right, can be exercised by a convicted person alone: that even if the appellants are present before the Court at the time of appeal then they are to be remanded to custody as no bail can be granted to them as required under Section 25(8) of Act. 1997; that a fugitive from law cannot file the appeal before surrendering himself before the Court with regard to the decision given by this Court in the case of MUHAMMAD ASAFAQUE v. THE STATE (1998 P.Cr.L.J. 1486) relied upon by the Advocate for the appellants, he has submitted that the said authority requires reconsideration, therefore, the matter may be referred to the Hon’ble Chief Justice for constitution of a larger bench.
4. On the other hand, the learned advocates for the appellants, have argued that trial in absentia was also provided in Suppression of Terrorist Activities Act, 1975, (hereinafter referred to as the @Act, 1975’ ), in which similar provisions as that of Act, 1997, were available and have been examined by this Court in a case of MUHAMMAD ASHAFQUE v. THE STATE (1998 P.Cr.L.J. 1486). In the said case, it has been held that the appeal is a continuation of trial, therefore, the accused persons, who were tried in absentia can file an Appeal without surrendering themselves before the Court. He has further argued that the law has been settled through the said authority, therefore, there is no need of referring the matter to a larger bench and that the appeal is maintainable.
5. After hearing the arguments, it was found necessary to issue direction to the appellants to surrender before this court, but they have failed to comply with the said direction. Their advocates have stated that the appellants cannot surrender before this Court and further added that Ist Appeals may be allowed by setting aside the conviction and sentence and remand the case to the trial Court.
6. We have given due consideration to the arguments, and examined the authority of MUHAMMAD ASHFAQUE (supra) and find that after examining the various provisions of the Act, 1975, which are analogous to the provisions of the Act, 1975, the Court observed that the appeal is a continuation of proceedings, and when a person can be tried in absentia, there was no reason as to why his appeal could not be heard as such. It was further observed that there was nothing in the Act. 1975 that before preferring Appeal the accused was required to surrender before the appellate Court. On these findings, the appeal of the accused persons without surrendering themselves before the appellate Court was found to be legally maintainable.
7. The Act, 1997, has two modes of trial, namely (a) the normal mode, where the accused is present and (b) where the accused is tried in absentia. These two modes must not be mixed up. If an accused, who is present and is convicted, he has the right to appeal, but if he is convicted in absentia then sub-section 12 of the Act,1997 has to be applied.
8. The reason of this second mode is if an accused is convicted in absentia his statement is not recorded, neither he is given a fair opportunity of leading defence. In order to give such a person a more fair opportunity of defence, the law provides that if he appears before the convicting Court, his conviction can be set aside and retrial is ordered. If after such retrial, he is again convicted, he has a right of appeal. However, if an appeal is filed after the first conviction, before his retrial by the trial Court, the appeal can only be illusory, as the appellate Court has no proper evidence for adjudication and the decision of the appeal, as such, when any appeal filed by the accused, who is absent during the trial of the case, without surrendering before the appellate Court or trial Court as provided by Section 19(12) of Act, 1997, cannot be considered and would be violative of the above provision of law.
9. It will be seen that the trial in absentia is a special provision to deal with a special class of accused persons and the law provides a special provision for setting aside the conviction of such persons, in the shape of Section 10(12) of Act,1997. Whereas for other class of persons general provisions of appeal are provided for setting aside their conviction. In such situation when the Act, 1997 itself provides both general provisions as well as special provisions for setting aside conviction of trial Court then on the Doctrine of GENERALIA SPECIALIBUS NON DEROGANT, the special provision would prevail over general rule.
10. A full bench of Hon’ble Supreme Court in a case of STATE v. ZIA-UR-RAHMAN, 9PLD1973 SC 49) at page 89 after applying the above maxim has observed as under :-
11. Thus the provisions of sections 19(10) to (12) are special provisions, which contained all the provisions from the stage of charge upto the stage of setting aside the conviction and sentence, therefore, they must be applied, before the provisions of Section 25 are applied.
12. Even if the accused, wants to avail general provisions of appeal, then he must fulfil all the conditions applicable for filling an appeal and one of such condition is that the must file the appeal himself. Under Section 25(8) he cannot be granted bail during the pendency of Appeal, consequently he has to be remanded to custody or allowed to remain in custody and for that purpose his presence is necessary before the appellate Court. Furthermore, a copy of judgment is required to be supplied to the accused by the trial Court on the day of pronouncement of judgment as provided under Section 25(2) of Act. 1997. The compliance of the above provision can only be made when the accused is present before the trial Court. In case of conviction the accused is required to be remanded to the judicial custody, from where he may file Appeal. As such he will be deemed to be present before the appellate Court while in judicial custody.
13. It is also pointed out that under Section 19(10) of Act. 1997, the trial Court is required to appoint an Advocate to defend the accused, before the said court or under Section 25(11A) the accused is allowed to be defended by an advocate of his choice. In any case, such advocate will defend the accused before the trial court. His authority to defend the accused is limited to that Court alone. Such advocate has no authority to file the appeal on behalf of the accused, for the simple reason that appeal is a vested right, which can be exercised by the accused person alone. Furthermore, such advocate has no authority to enter into any plea and record his statement under Section 342, Cr.P.C. on behalf of the accused. As such the law dives a very limited authority to such advocate to defend the accused and that too before the trial Court.
14. A perusal of record reveals that both the appellants, during their abscondence, engaged their advocates for filing appeal before this court, as such their advocates have filed the appeal on behalf of the appellants.
15. Under the law such an advocate has no power to file appeal of absconding accused. Similar point was examined by the Hon’ble Supreme Court in a case of HAYAT BAKHSH v STATE PLD 1981 SC 265) at pages 280 and 281 it has been observed as under:-
Apart from the foregoing principles laid down in the case of Chan Shah, these aspects were further elaborated in Gul Hassan’s case : if a Person is fugitive from justice and is in the state of abscondence, and appeal cannot be filed on his behalf on the basis of a power-of-Attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah, is also a contemner and further that he is not entitled to hearing.
16. In the case of GUL HASAN v STATE reported in PLD 1965 SC 89 and at pages 93 and 94 the Hon’ble Supreme Court has issued warning to advocates who file appeal on behalf of absconders in the following manner:-
“We fully subscribe to this view and reiterate that the attorneys and members of the bar will bear in mind the serious consequence of committing contempt of this court in moving on behalf of a prisoner who is a fugitive from law “
17. In this case a direction was issued to the appellants for their appearance but they failed to comply with the direction. Even their advocates, who were appointed by them to file Appeal and to defend them before this Court, showed their inability to produce the appellants before this court.
18. Thus, the appeal filed by the advocates appears to be not maintainable.
19. It will be seen that the conviction was awarded on 08.11.2001, the appellants gave power to their advocates on 14.11.2001 and the appeal was filed on 27.11.2001. Thus, the appellants know about the decision of the Court and were available in Karachi because they executed the power to their advocates.
20. It is also pointed out that a fugitive from law has no right of appeal and cannot be heard by the Court of law unless he surrenders before the Court. Reliance is placed on the case, of ALLAH BAKHSH v THE STATE (PLJ 1982 SC 295), HAYAT BAKHSH and GUL HASSAN (Supra) and CHAN SHAH v CROWN (PLD 1956 FC 43).
21. In the light of what has been stated above, we are of the considered view that the matter requires to be examined by a larger Bench, therefore, the same may be placed before the Hon’ble Justice for passing appropriate orders as he deems fit.”
In pursuance of the above order, as a contrary view was expressed from a division bench of this court in a case MUHAMMAD ASHFAQ v STATE, 1998 P.Cr.L.J. 1486 therefore the matter was placed before the Hon’ble Chief Justice to constitute a larger bench to examine the following question:-
“Whether appeal of an accused person tried and convicted in absentia is not maintainable unless he surrenders before the court?”
On 12.2.2004 the Hon’ble Chief Justice passed the following Order.
“I think this issue had arisen in the appeal filed by Mrs Benazir Bhutto against her conviction by the Ehtesab Court . If so, there is no need to continue a larger bench for deciding the issue.”
On 25.3.2004 this bench replied the query of the Hon’ble Chief Justice, distinguishing the case of Benazir Bhutto from the present case. The said reply is as under:-
“The facts and circumstances of the case were that during trial presence of Ms. Benazir Bhutto was exempted by the Ehtesab Court. The said court convicted the accused in her absence as she was allowed to leave the country with the permission of the court. The Deputy Registrar of the Supreme Court raised a preliminary objection and returned the appeal filed by the appellant under section 26 of Ehtesab Act 1997, on the ground that under Order XVII Rule 5 read with order V rule 3 of the Supreme Court Rules 1980, the appellant must first surrender before the competent authority in obedience to the order of the imprisonment passed against her by the Ehtesab Bench.
A single Bench of the Hon’ble Supreme Court of Pakistan after hearing the parties counsel observed:
1. That Order XVII applies to “petitions for leave to appeals arisen therefrom in criminal proceedings”, the appeal in point is neither a petition for leave to appeal nor is it an appeal that has arisen out of any such petition.
2. The appellant filed an appeal as of right under Section 26 of the Act and this is additional jurisdiction conferred on the Court by the Act within the meaning of Article 175(2) of the Constitution which cannot be equated with the petition for leave to appeal for the purpose of Rules 8 (ibid)-
3. That, the judgment and sentence sought to be challenged were announced by the Ehtesab Hench in the absence of the appellant (for which absence she had the permission of the court) and for the reason she was also allowed exemption from attendance in Ehtesab Reference No.28 of 1997, pending before Ehtesab bench in the High Court of Sindh at Karachi.
4. That the case of the appellant, however, stands on a different footing, from the case of Chan Shah Vs. The Crown, PLD 1956 F C 43 inasmuch as, she was out of the country with leave of the court. She was not required to furnish any bail bond. There was no restraint on her from Ehtesab Bench to travel abroad during the pendency of the trial.
5. The appeal filed by Asif Ali Zardari (co accused) was entertained against the same judgment and the court had to examine the legality of the conviction and sentence passed by the Ehtesab bench in the impugned judgment.
In the present case, the appellants were not exempted from their appearance before the trial court. They were tried in absentia as provided under Section 19 of Anti-terroism Act 1997. During the pending adjudication of the appeal, the appellants were directed to appear before the court Even then, they did not surrender before this court in obedience to the said order which amounts to abuse of the process of the court. The rule laid down in the case of Chan Shah case (supra) has been made applicable to this case whereas the said case was not made applicable in the case of Benazir Bhutto.
After our decision in the appeal, a Full Bench of the High Court of Baluchistan considered the similar point. The said Bench took the same view as we have expressed in the judgment. The said Full Bench has considered the implication of Benazir Bhutto’s case but the bench found it not applicable in the said case (Copy of the judgment is enclosed for ready reference.
In the light of what has been stated above the matter may be placed before the Hon’ble Chief Justice for passing appropriate order as deemed fit.”
On 19.4.2004, the Hon’ble Chief Justice passed the following order:-
The issue stands
decided unequivocally by the various Judgment of the Supreme Court and the same
is to be followed. There is no need for a decision on the issue by a larger
bench. In view of the court, contrary to the pronouncements of the Supreme
Court, will have no binding force and the view consistent with the
pronouncement of the Supreme Court will hold ground”
After receipt of the case we again heard the arguments of Advocate for the appellant and A.A.G. for the state. They repeated the same arguments as already advanced by them and after considering the said arguments, we had formed the opinion that was expressed in our order dated 8.12.2003. The full bench of the Baluchistan High Court in the case of Muhammad Nawaz (supra) took the similar view as we had expressed in our order, after relying upon various judgments of the Hon’ble Supreme Court of Pakistan. The relevant portion of the Judgment of the full bench of the Baluchistan High Court is as an under:-
In the light of what have been discussed above, in our considered view the appeals filed on behalf of convicts/absconders who have not surrendered to the process of law after their conviction, are not maintainable nor the same could be filed by the council in whose favour statedly attorneys were executed or by their relatives, as such, all the above mentioned appeal having been incompetently filed and not maintainable under law are dismissed accordingly.”
Our view expressed in the order dated 8.11.2003 is also supported by the various pronouncements of the Supreme Court of Pakistan, which have been mentioned in the said order. Consequently, the appeal filed by the appellant is incompetently filed and not maintainable.
The appellants may apply before the trial Court as provided U/s.19(12)of the Act 1997 for further proceedings in accordance with law.
Above are the reasons of our short order dated 8.11.2004 by which we had dismissed the appeal as not maintainable.
Judge
Judge
Karachi
Dated November, 2004