ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Appeal No.D- 48 of 2011

DATE	ORDER WITH SIGNATURE OF JUDGE

14.01.2015

Mr. Shahbaz Ali M. Brohi, advocate for the appellant.

Mr. Khadim Hussain Khooharo, DPG.

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Naimatullah Phulpoto, J.--- Appellant Papoo Essani and others were tried by learned Judge, Anti-Terrorism Court, Jacobabad in special case No.102/2008 for offences under Sections 365-A, 324, 353, 148, 149 PPC, 17(3) Offences Against Property (Enforcement of Hadood) Ordinance, 1979 and Section 7 of Anti Terrorism Act, 1997. After full dressed trial by judgment dated 15.06.2010 accused Bhutto and Zahid were acquitted. Present appellant Papoo who was tried in absentia was also acquitted however, appellant Papoo was convicted under Section 21-L of Anti Terrorism Act, 1997 (hereinafter referred to as ‘the Act’) and sentenced to 05 years R.I., his moveable and immovable property were also forfeited.

2. Mr. Shahbaz Ali M. Brohi, learned counsel for the appellant has mainly contended that appellant was tried in his absentia and he has been acquitted for the offences under sections 365-A, 324, 353, 148, 149 PPC, 17(3) Offences Against Property (Enforcement of Hadood) Ordinance, 1979 and Section 7 of Anti Terrorism Act, 1997. It is contended that conviction of the appellant under Section 21-L of the Act without framing of charge and recording of evidence is not sustainable under the law. In support of his contentions he has relied upon case of Arbab Khan v. The State 2010 SCMR 755 and the case of Ikhlaq Ahmad v. State 2008 SCMR 951.

3. Mr. Khadim Hussain Khooharo, learned DPG supported the impugned judgment of the trial Court and argued that absence of appellant Papoo was intentional.

4. We find that proceedings under Section 87 & 88 Cr.P.C were initiated against the appellant for the purpose of proceeding with the case in absentia, thereafter charge was framed for other offences except 21-L of the Act. The record further reveals that no evidence was recorded to prove the ingredients of Section 21-L of the Act. Judgment of the trial Court does not reflect that point for determination regarding section 21-L of the Act was framed. Trial Court has also failed to discuss the evidence regarding deliberate absconsion of the appellant. Learned trial Court in cursory manner has convicted and sentenced the appellant under Section 21-L of the Act. Therefore, the procedure adopted by the trial Court for conviction and sentence of appellant in absentia is not warranted in law and it is violative of the Article 9 of the Constitution. Section 21-L of the Act reads as under:-

Section 21-L. Punishment for an absconder.--- Whosoever 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 terms not less than {five years} and not more than [ ten years] or with fine or with both.

5. In the case of Ikhlaq Ahmad v. State 2008 SCMR 951 Honourable Supreme Court set aside the conviction and sentence passed by the Special Judge, ATC, in a murder case in which accused were tried in absentia as they were absconders and it was held that trial in absentia was violative of Article 9 and 10-A of the Constitution of Pakistan, 1973.

6. In the light of above discussion, while relying upon above authorities, we hold that since appellant has been acquitted by trial Court in main offence, as such the conviction and sentence awarded to the appellant Papoo under the impugned judgment dated 15.06.2010 are set aside. Appellant Papoo is produced in custody. He is returned back with direction to be released forthwith in this case, if he is not required to be detained in some other case. 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. These are reasons of our short order announced by us today morning.

Judge