2017 M L D 7
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail, and Ghulam Mustafa Mengal, JJ
BHOORAL KHAN ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s) 86 of 2013 and Murder Reference No.(s) 14 of 2002, decided on 24th
July, 2014.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Anti -Terrorism Act (XXVII of 1997), S.19(10), (12) ---Constitution of Pakistan,
Arts.9, 10 & 10- A---Qatl-i-amd---Appreciation of evidence ---Conviction in absentia ---Right to
fair trial ---Accused af ter having been declared proclaimed offender, had been sentenced to death
and application filed by accused under S.19(12) of the Anti -Terrorism Act, 1997, was also
dismissed by the Trial Court---Section 19(10) of Anti -Terrorism Act, 1997, which dealt with trial
of a proclaimed offender in absentia, stipulated and made it mandatory for the Trial Court to
conduct an inquiry in respect of deliberate absence of accused; without fulfilling the direction
made therein, no conviction could be sustained---Accused, w ho was sentenced to death in
absentia, could not be arrested and his non- bailable perpetual warrants remained in field ---
Accused, was subsequently arrested and he submitted application under S.19(12) of Anti -
Terrorism Act, 1997, which was dismissed vide im pugned order ---Contention of accused was
that he did not present himself before the court due to lack of information, and not to evade
justice deliberately as according to him he was not aware of the fact that a case had been lodged
against him ---Accused w as not convicted according to law, because the pre -requisites of fair trial
were not provided to him ---Procedure adopted by the Trial Court, was not in accordance with
law and Arts.9, 10, 10- A of the Constitution---Right of fair trial was guaranteed under Art.10- A
of the Constitution---Trial Court having passed the conviction and recorded the sentence of
accused in hasty manner, without appreciating the evidence on record, conviction and sentence
of accused, could not be sustained--- Impugned judgment passed by the Trial Court was set aside
and case was remanded to the Trial Court for trial fresh.
Arbab Khan's case 2010 SCMR 755 and Mir Ikhlaq Ahmed v. The State 2008 SCMR
951 ref.
(b) Constitution of Pakistan ---
----Art. 189---Decision of Supreme Court, binding force of---Judicial dignity demanded that
every judgment delivered by the Supreme Court, irrespective of the size of the author bench,
deserved and received the highest respect; while any deviation thereof would amount to clear
violation of the mandat e of Constitution---Determination and deposition made by the Supreme
Court, could neither be bypassed, nor the validity and unity thereof be examined by the High
Court; as the same had binding force and effect ---Right duly recognized by the judgment of the
Supreme Court, had to be given effect ---Any decision of Supreme Court, to the extent it decided
a question of law, or was based upon or enunciated principle of law, would be binding on all
other courts in Pakistan.
Hasnain Iqbal and Attaullah Langove for Appellant (in Criminal Appeal No.(s) 86 of
2013).
Abdullah Kurd for the State (in Criminal Appeal No.(s) 86 of 2013).
Abdullah Kurd for the State (in Murder Reference No.(s)14 of 2002).
Hasnain Iqbal and Attaullah Langove for Respondent (in Murder Refer ence No.(s)14 of
2002).
Date of hearing: 4th June, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This criminal appeal is
directed against the judgment dated 05.06.2002 ("the impugned judgment"), whereby the
appellant after being declared proclaimed offender has been sentenced to death, and against the
order dated 14.05.2013 ("the impugned order"), whereby the application filed by the appellant
under Section 19(12)(ii) of the Anti Terrorism Act, 1997 ("the Act") was dismissed. The
impugned judgment a nd the impugned order were passed by the Special Judge Anti -Terrorism
Court, Sibi ("trial court").
2. Brief facts of the case are; that on 18.12.2001 the complainant namely Raham Dil lodged
FIR No.55 of 2001 with police station Sohbat Pur, on the allegation that on the stated date and
time, the accused namely Bhooral Khan ("appellant") made firing by means of Kalashnikov,
resultantly he sustained injuries on his mouth, abdomen, back, wrist and elbow in Sohbat Pur
Bazar, when he along with his brother viz, G hulam Muhammad and nephew Ghulam Haider
were going to pay homage to Molvi Qadir Bakhsh. He alleged that his brother and nephew
identified the appellant Bhooral Khan. Later the complainant succumbed to his injuries and the
offence under Section 324 of the P akistan Penal Code, 1860 ("P.P.C.") was converted to 302,
P.P.C. The deceased complainant further alleged in the FIR that the motive behind the
occurrence was previous dispute over appellant's ox theft.
It is pertinent to mention here that upon submission of challan by the Investigation
Officer on 09.02.2002; the proclamation was made as envisaged under Section 87 of the
Criminal Procedure Code, 1898 ("Cr.P.C.") and published in daily newspaper on 10.04.2002.
The charge was framed against the appellant in his absence by the trial court on 06.05.2002 and
it was presumed by that he did not plead guilty. Thereafter the trial commenced and the
prosecution in order to prove the allegation against the absconding accused/appellant produced
the following witnesses.
i. PW-1 Ghulam Muhammad, the eye -witness, who produced site inspection report
as Ex.P/1 -A, blood stained soil as Ex.P/1- B, four empties of crime as Ex.P/1- C, blood
stained clothes of Rahamdil (deceased/complainant) as Ex.P/1 -D and Articles 1 to 16.
ii. PW-2 Doctor Abdul Jabbar Bangulzai, Medical Officer, B.H.U. Sohbat Pur,
produced the application submitted by SI Pasand Khan in respect of recording statement
of Rahamdil as Ex.P/2- A and Medical Certificate of deceased/complainant as Ex.P/2 -B.
iii. PW-3 Ghul am Haider, nephew of the deceased/complainant being an eye -witness
of the occurrence, identified his thumb impressions on site inspection report Ex.P/l -A,
four empties of crime as Ex.P/l- C and blood stained clothes of his deceased uncle
Rahamdil Ex.P/1 -D.
iv. PW-4 SI Pasand Khan, is the Investigation Officer of the case, who produced the
statement of deceased/complainant as Ex.P/4 -A, FIR bearing No.55 of 2001 as Ex.P/4- B,
site plan as Ex.P/4 -C, death certificate of deceased/complainant as Ex.P/4 -D, challan of
the case as Ex.P/4 -E, FSL, report as Ex.P/4- F and challan in respect of FSL report
submitted in court as Ex.P/4 -G.
Upon conclusion of the trial the appellant was convicted and sentenced to death vide
impugned judgment.
3. Messrs Hasnain Iqbal and Attau llah Langove, Advocates, the learned counsel for the
appellant contended that the appellant was unaware about the registration of the FIR against him
and no notice/ summons or warrant of arrest has ever been served upon him. They contended that
he during t his while remained in his native village and was frequently traveling throughout the
country including Sibi and Quetta; therefore, his absence cannot be termed as willful. They
further contended that the proclamations published in newspapers were not in the appellant's
knowledge nor he heard from anyone that the case is registered against him and he has been
declared proclaimed offender by the learned special court. He added that the learned trial court
passed the conviction and recorded the sentence in has ty manner without appreciating the
evidence on record. He placed reliance on reported judgments of the Hon'ble Apex Court in case
titled: Mir Akhlaq Ahmed v. The State 2008 SCMR 951 and on an unreported judgment of this
court passed in Criminal Appeal No.206 of 2013 dated 04.09.2013. He finally urged that in view
of the dictum laid down by the Hon'ble apex court the trial in absentia is held as unconstitutional,
thus, the convictions so recorded are not sustainable, therefore, the impugned judgment may be
set aside and case be remanded back to the trial court for trial afresh.
4. Mr. Abdullah Kurd, the learned State counsel in view of the judgment rendered by the
Hon'ble Supreme Court of Pakistan did not oppose the appeal.
5. We have heard the learned counsel and have gone through the record. The controversy in
the instant case revolves around the proposition "whether the death sentence confirmed by this
court can be set aside and the same would not amount to review its own judgment". To better
understand the controversy it would be advantageous to go through the relevant provision
pertaining to trial in absentia provided under the Act, 1997.
The Section 19(10) of the Act deals with trial of a proclaimed offender in absentia, which
stipulates and makes it man datory for the Special Court to conduct an inquiry in respect of
deliberate absence of the accused and without fulfilling the directions made therein no conviction
can be sustained. Therefore, the provision being relevant is reproduced here under: --
"19(10) ---Any accused 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.
Provided that the accused persons shall not be tried under this subsection unless a
proclamation has been published in respect of him in at least three national newspapers
out of which one shall be in the Urdu language requiring him to appear at a specified
place within seven days faili ng which action may also be taken against him under Section
88 of the Code."
In this case the appellant was convicted in his absence under Section 302, P.P.C. and
sentenced to death penalty by the learned trial court and thereafter the Murder Reference No .(s)
14 of 2002 was forwarded under Section 376, Cr.P.C. for confirmation or otherwise of sentence.
This court vide judgment dated 17.12.2004 answered the murder reference in affirmative but the
appellant convict could not be arrested and his non- bailable perpetual warrants remained in field.
The record shows that the appellant was arrested in May 2013 and thereafter an Application
under Section 19(12) ii of the Act was submitted before the trial court which was dismissed vide
the impugned order dated 14.05.2013.
The contention raised on behalf of appellant looks more plausible and it is entirely
possible that the accused did not present himself before the court due to lack of information but
not to deliberately evade justice, as according to him he was not aware of the fact that a case had
been lodged against him. The question whether appellant was aware about the case or he was
unaware cannot be resolved without leading evidence on that particular point.
6. The Constitution of the Islamic Republic of Pakis tan, 1973 ("the Constitution") is a living
document, wherein the right of fair trial is guaranteed under Article 10- A, which stipulates as
under: --
"10- A. Right to fair trial. For the determination of his civil rights and obligations or in
any criminal cha rge against him a person shall be entitled to a fair trial and due process."
The appellant was not convicted according to law because the pre -requisites of fair trial
were not provided to him, thus the procedure adopted by the learned trial court was not in
accordance with the law and Articles, 9, 10 and 10- A of the Constitution. Therefore, conviction
recorded against the appellant would not be sustainable in view of dictum laid down by the
Hon'ble Apex Court.
The proposition regarding the trial in absent ia came for hearing before the Hon'ble
Supreme Court of Pakistan in Arbab Khan's case reported in 2010 SCMR 755 and the Hon'ble
Supreme Court held as follows: --
"Having heard the learned counsel for the parties and perusing the record. We find that
the proceedings under Sections 87 and 88 of Cr.P.C. were initiated for the purpose of
proceeding with the case in absentia, thereafter the charge was framed for other offences
except Section 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. No point for determination
concerning the offence under Section 21- L of the Act was framed in the judgment by the
trial Court. There is no discussion in the impugned order and in the judgment of the tr ial
Court with regard to any evidence available on record. In cursory manner, the learned
trial Court convicted and sentenced the appellant for the said offence. Thus, the
procedure adopted by the trial Court in convicting and sentencing the appellant is not
warranted by law and illegal."
7. In a case where a person was convicted when he was absconding a Division Bench of this
court, (comprising of Hon'ble Chief Justice, Qazi Faez Isa and Justice Muhammad Noor
Meskanzai) in Criminal Appeal No.274 of 2009, t he dictum laid down in Arbab Khan's case was
followed and it is inter alia held that, when no charge was framed and or the evidence in respect
of willful absconsion was not led by the prosecution, the conviction recorded under Section 21 -L
would be against the norms of natural justice.
It may be noted here that while dealing with the proposition of trial in absentia the
Hon'ble Supreme Court of Pakistan under Sections 19 and 10(1) of the Anti -Terrorism Act, 1997
authorized the special court to try the accu sed in his absence, if it is satisfied that such absence is
deliberate and brought about with a view to impede the course of justice. However, subsequently
the said questions came for consideration before the Hon'ble Supreme Court of Pakistan and the
same was dealt with in the case of Mir Ikhlaq Ahmed v. The State 2008 SCMR 951 and the trial
of accused in absentia was declared as illegal and unconstitutional in view of the Articles 9 and
10(1) and it was held 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 Cour ts, 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 retrial of the case."
The proposition involved in this case is somehow different from the proposi tion
discussed in Mir Ikhlaq and Arbab Khan's case, because the death penalty awarded by the trial
court was confirmed by this court and for all practical purposes the fate of the appellant had been
finally decided, but with a flux of time the law has been developed and a new dictum has been
laid down by the Hon'ble Apex Court and trial in absentia in its totality is held to be
unconstitutional, therefore, following the principle of law of precedents, the latest dictum
rendered by the Hon'ble August court a nd the proposition which holds the field shall be
followed. Thus, the judicial dignity demands that every judgment delivered by the Hon'ble
Supreme Court irrespective of the size of the author bench deserves and receives the highest
respect, while any devi ation thereof will amount to clear violation of the mandate of the
Constitution, as the Article 189 of the Constitution enunciates that:
"189. Decision of Supreme Court binding on other Courts.
Any decision of the Supreme Court shall, to the extent that i t decides question of law or is
based upon or enunciates a principle of law, be binding on all other courts in Pakistan."
In view of the referred to Article of the Constitution no cavil is left to hold that the
determination and deposition made by the Supreme Court of Pakistan can neither be bypassed
nor the validity and verity thereof be examined by the High Court as the same has binding force
and effect under Article 189 of the Constitution, therefore, right duly recognized by the judgment
of the Hon'ble Supreme Court has to be given effect. Any decision of the Hon'ble Supreme
Court, shall to the extent it decides a question of law or is based upon or enunciates a principle of
law shall be binding on all other court in Pakistan. Thus, in the instant case, though, the murder
reference against the appellant was answered in affirmative by this court but the same cannot
hold the field in view of dictum rendered by the Hon'ble Apex Court.
In another reported judgment passed in Muhammad Arif v. The State (2008 SCMR 829)
the identical proposition came up for hearing before the Hon'ble Apex court, whereby the death
sentence awarded by the trial court, which was confirmed by this court in Murder Reference No.
ATA(s) 07 of 2002 vide judgment dated 30.03.2005, while setting aside the judgments/orders the
Hon'ble Apex Court held that, 'the judgments, convictions and sentences rendered by the courts
in the absence of petitioner, to his extent are not sustainable under the law and violative of the
provision of the Consti tution, which necessitated retrial of the case.' Thus in view of the above
discussion, it is more appropriate that subject to Article 10 -A of the Constitution and the dictum
laid down by the Hon'ble Apex Court, in the first instance he be allowed to rebut the charge
before the trial court and to defend himself on both charges i.e. a willful absconsion and murder
of the deceased.
Resultantly, this appeal is accepted. The impugned judgment dated 05.06.2002 passed by
the Special Judge, Anti -Terrorism Court, Sibi is set aside and case is remanded back to the trial
Court for trial afresh.
HBT/44/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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