HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeal No. 251 & 252 of 2017

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Abdul Malik Gaddi       

 

 

Date of Hearing        :           06.12.2017.

 

Date of Judgment    :            11.12.2017.

 

Appellant                 :            Muhammad Qasim through Mr. Noor Muhammad Advocate.

 

Respondent              :            The State through Mr. Abdullah Rajput Additional Prosecutor General Sindh.

 

 

JUDGMENT

 

 

 

NAIMATULLAH PHULPOTO, J.- Appellant Muhammad Qasim has filed aforesaid appeals against the judgment dated 02.10.2017 passed by Dr. Shabana Waheed learned Judge, ATC-I/1st Additional Sessions Judge Karachi East in Special Case No.1595/2016, Special Case No.1596/2016, Special Case No.1597/2016. Co-accused Rana Mujahid @ Madhu by giving benefit of doubt was acquitted of the charges. However, appellant Muhammad Qasim was declared as proclaimed offender by the trial Court and convicted in his absentia under Section 21-L of Anti-Terrorism Act, 1997 and sentenced to 5 years R.I and to pay fine of Rs.5000/-. In case of default in payment of fine, he was ordered to suffer SI for one month more.

 

2.         Brief facts of the prosecution case are that on 29.01.2016, SHO Mirza Safdar left police station along with his subordinate staff for patrolling duty. During patrolling, he received spy information that two persons armed with deadly weapons were present near Razzak Public School PIB Colony Karachi for committing some crime. On such information, police party proceeded to the pointed place and found both accused standing in suspicious manner there. It is alleged that both accused started firing upon police. Police also fired in self defence. Thereafter, police caught hold accused Rana Muhjahid alias Madhu (since acquitted). It is alleged that at the time of arrest of present accused from his possession 30 bore pistol was recovered. Both accused were brought to police station PIB Colony where FIRs bearing Crime No. 38/2016 under Section 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997 and Crime No.39/2016 u/s 23(1)(a) of Sindh Arms Act 2013 and Crime No. 40/2016 under Section 23(1)(a) Sindh Arms Act, 2013 were registered against accused on behalf of state.

 

3.         After usual investigation, challan was submitted against accused under the above referred sections before learned Judge ATC, Karachi.

 

4.         It appears from the judgment of the trial Court that Rana Mujahid alias Madhu faced trial and appellant Muhammad Qasim absconded away and he was declared as proclaimed offender. Trial was concluded against accused Rana Mujahid @ Madhu and he was acquitted by the trial Court of the charge. Appellant Muhammad Qasim was convicted under Section 21-L of Anti-Terrorism Act, 1997 only in his absentia. Relevant portion of the judgment is reproduced as under:

 

“21. For the reasons owing above, I am of the firm view that the prosecution has failed to establish charge against the accused beyond any reasonable shadow of doubt, therefore, I extend benefit of doubt to accused namely Rana Mujahid alias Madho son of Rana Hanif and acquit him in main case crime No. 38/2016 alongwith offshoot case bearing crime No. 39 of 2016, under section 265-H(i) Cr.P.C. He is on bail. His bail bonds stand cancelled and surety is discharged.

 

22. The record further reveals that accused namely Muhammad Qasim son of Muhammad Nashir alias M. Ishaque though was arrested on the spot but during the proceedings of this case he has hidden himself from the proceedings of the cases, however proper course for his arrest was adopted but could not succeeded to arrest him, therefore, the proceeding under section 87 & 88 Cr.P.C were initiated and the proclamations were made in three newspapers viz. The Daily Express and The News, as such proper time as required by the law was given to accused Muhammad Qasim to appear before the court in order to face his trial but he intentionally absconded and avoided his arrest during investigation and all court proceedings, therefore, concealing themselves, thereby abstract the course of justice, hence, he is liable to be convicted in absentia for his intentional abscondence. Accordingly, absconding accused is convicted u/s 21-L of Anti-Terrorism Act, 1997 and sentence R.I for five years with fine of Rs.5000/- each and in default thereof he shall suffer S.I for one month each. Issue his perpetual warrant for arrest. However, case crime bearing No. 38/2016 and offshoot Crime No. 40/2016 in respect of accused Muhammad Qasim on merits shall be proceeded against him after his arrest which are sine-die adjourned and kept on dormant file against the accused Muhammad Qasim.”              

 

 

5.         Appellant has filed Special Criminal Anti-Terrorism Appeals Nos. 251 and 252 of 2017, directly while challenging the conviction and sentence awarded to him in his absentia.

 

6.         Learned Advocate for appellant submits that conviction of appellant Muhammad Qasim in absentia was violative of the Constitution. In support of his contention, he has relied upon the case reported as Arbab Khan vs. The State (2010 SCMR 755). Learned Advocate for appellant submitted that case may be remanded back to Trial Court for deciding the case on merits afresh in accordance with law.

 

7.         Mr. Abdullah Rajput learned Addl. P.G conceded to the legal position that conviction in absentia is not sustainable under the law. However, he submitted that case may be remanded back to the trial Court for deciding the same afresh on merits.

 

8.         Honourable Supreme Court in the case of Arbab Khan vs. The State (2010 SCMR 755) has declared that trial in absentia without adopting legal procedure for trial of such offence is violative of Articles 9 and 10(1) of the Constitution and Sections 10 (11 A) of the Anti-Terrorism Act, 1997. Thus, cannot be allowed to sustain. Relevant portion of the judgment is reproduced as under:

 

5. We have also gone through section 21-L of the Act and section 31-A of the Ordinance and find that both the sections are similar to each other. The said sections read as under:

 

"[Section 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 be liable to imprisonment for a term not less than [five years] and not more than [ten years] or with fine or with both].

 

[31-A. Absconding to avoid service of warrants.--- Whoever absconds in order to avoid being served with any process issued by any Court or any other authority or officer made this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance shall be guilty of an offence punishable with imprisonment which may extend to three years notwithstanding the provisions of sections 87 and 88 of Code of Criminal Procedure, 1898, or any other law for the time being in force]."

 

6. This Court in the above unreported decision had held that the trial in absentia and conviction under section 31-A of the Ordinance was violative of Article 9 of the Constitution. Relying upon the said decision, the learned High Court of Sindh in the cases of Mst. Mubarak Salman and Noor Muhammad Khatti (supra) had also formed the similar opinion and further added that the trial Court did not adopt correct procedure of framing the charge, recording the evidence and discussing the same. Thus the trial in absentia without adopting the legal procedure for trial of such offence is violative of Article 9 of the Constitution. Further in the case of Ikhlaq Ahmad v. State 2008 SCMR 951 this Court set aside the conviction and sentence passed by the Special Judge, Anti-Terrorism Court, in a case of murder in which the accused were tried in absentia as they were absconders and it was held that trial in absentia was violative of Articles 9 and 10(1) of the Constitution and section 10(11-A) of the Act. The relevant portion of the judgment reads as under:---

 

"In view of the above, we feel that the trial of the appellants, in absentia, undertaken by the Special Judge, Anti-Terrorism Court, was violative of Articles 9 and 10(1) of the Constitution and section 10(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, which has necessitated the re-trial of the case."

 

7. In the light of above discussion, the conviction and sentence awarded to the appellant under the impugned judgment and that of the trial Court are set aside. However, this judgment shall not be construed to preclude the trial Court from taking any proceedings in accordance with law and adopt legal procedure for trial of offence punishable under section 21-L of the Act. Consequently, the appeal is allowed.

 

 

9.         In the view of above legal position, trial of accused in his absentia and conviction and sentence awarded to the appellant Muhammad Qasim under Section 21-L of Anti-Terrorism Act, 1997 are set aside being violative of the Cosntitution as discussed above. However, case is remanded back to the trial Court for proceeding further in accordance with law against appellant Muhammad Qasim in FIR No. 38/2016 under Sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997 and FIR No. 40/2016 under Section 23(1)(a) of Sindh Arms Act 2013. Since co-accused has been acquitted by the trial Court, appellant Muhammad Qasim shall remain on bail. Appellant shall appear before trial Court on 09.01.2018

           

10.       Both appeals are disposed of in the above terms.

 

11.       Before parting with this judgment, we are constrained to show our displeasure because of the nature of the judgment passed by learned Judge A.T.C, who conducted trial of the appellant in absentia. It was violative of Articles 9 and 10(1) of the constitution and Section 10(11-A) of Anti-Terrorism Act, 1997. We hope that this practice would not be repeated in future.

 

12.       Copy of the judgment be sent to Dr. Shabana Waheed 1st Additional Sessions Judge Karachi East/ Anti-Terrorism Court through Registrar of this Court for future guidance and compliance.

 

 

 

JUDGE

 

                                                JUDGE