HIGH COURT OF SINDH AT KARACHI

Special Anti-Terrorism Appeal No.08 of 2013

Present: Sajjad Ali Shah, J.

Naimatullah Phulpoto, J.

Appellant: Muhammad Usman Tunio through Muhammad Saleem Mangrio, Advocate

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Respondent: The State through Mr. Shahzado Saleem Nahiyoon, Asstt: Prosecutor General Sindh.

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Date of hearing: 07.05.2013

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O R D E R

NAIMATULLAH PHULPOTO, J:- Appellant Muhammad Usman Tunio along with others was tried by learned Anti-Terrorism Court No.II, Sukkur Division, Sukkur in Special Case No.67/2006 under sections 302, 324, 148, 149 PPC, 17/4-EHO and 7 of Anti-Terrorism Act, 1997, Crime No.37/2004 of P.S. Baiji Sharif, District Sukkur. Learned trial Court convicted and sentenced the appellant in absentia and others as under:

(a) U/S 148 PPC they are convicted and sentenced to suffer R.I. for a period of three years.

(b) U/S 302(b) R/W Section 149-PPC they are convicted and sentenced to suffer R.I. for a period of imprisonment for life on each count. They are also liable to pay compensation of Rs.25,000/- each to be paid to the legal heirs of deceased u/s 544-PPC and in case of default further S.I. for a period of two months more.

(c) U/S 7 of Anti-Terrorism Act, 1997 all the above named accused are convicted and sentenced to suffer R.I. for a period of imprisonment for life on each count.

(d) U/S 21-L of Anti-Terrorism Act, 1997 the proclaimed offenders are additionally convicted and sentenced to suffer R.I. for a period of five years.

Appellant Muhammad Usman Tunio and three others filed appeal against conviction and sentenced before this Court through Mr. Ghulam Qadir Jatoi, Advocate, the same was dismissed by Judgment dated 14.04.2008 while observing as under:

“19. In the instant case Mr. Ghulam Qadir Jatoi is not competent to file appeal on behalf of present appellants and the appellants should have surrendered themselves before this Court which was lacking. The objection raised by the learned A.A.G. is sustained, hence we hold that the appeal is not maintainable, hereby dismissed except as against the appellant No.3 who after filing of appeal had been arrested. Mr. Ghulam Qadir Jatoi undertakes to file vakalatnama on his behalf and the learned AAG also concedes. Hence the same is admitted for regular hearing. Office is directed to tag this appeal with Cr. A.T.A. No.01/2008, which is already admitted for regular hearing and scratch out the names of the appellants No.1, 2 and 4 from the memo of appeal with red ink.”

Mr. Muhammad Saleem Mangrio, learned Advocate for the Appellant Usman was required to satisfy this Court about the maintainability of the appeal as Appellant had already filed the appeal before this Court through Mr. Ghulam Qadir Jatoi and the same was dismissed by this Court vide judgment dated 14.04.2008. Mr. Mangrio submitted that Mr. Ghulam Qadir Jatoi was never engaged by the Appellant. In these circumstances notice was issued to Mr. Ghulam Qadir Jatoi, Advocate, he appeared before this Court and stated that he was duly authorized by the Appellant Usman and his appeal has been dismissed by this Court.

We have carefully heard the learned counsel for the parties and perused the relevant record. This Court while deciding the Special Anti-Terrorism Appeal No.04/2008 dated 14.04.2008 dismissed the appeal of Appellant Muhammad Umsan Tunio on the ground that Mr. Ghulam Qadir Jatoi was not competent to file the appeal on behalf of the Appellant and the Appellants should have surrendered before this Court. Appeal was dismissed on the point of maintainability. Judgment of this Court dated 14.04.2008 was not challenged before the apex Court.

Under subsection (10) of Section 19 of the Anti-Terrorism Act, 1997, any 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. The Court shall proceed with the trial after taking necessary steps to appoint an Advocate at the expense of the State to defend the accused who is not before the Court. Under subsection (12) ibid if, within 60 days from the date of his conviction, any person tried under subsection (10) appears voluntarily or is apprehended and brought before A.T.C. and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceedings against him, the A.T.C. 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 A.T.C. may exercise its powers under this subsection in a case in which a person as aforesaid appears before it after expiration of said period satisfies that he could not appear within said period by reason of circumstances beyond his control.

In view of the above legal position, Appellant is directed to surrender before the concerned Anti-Terrorism Court, in case of failure learned Anti-Terrorism Court shall proceed against the appellant Muhammad Usman Shaikh in accordance with law. Consequently, instant appeal, without set-asiding the judgment in previous appeal, is not competent and the same is dismissed.

JUDGE

JUDGE

Gulsher/PA