2020 M L D 758
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
SADIQ ---Appellant
Versus
The STATE through Prosecutor General, Quetta ---Respondent
Criminal Appeal No. 18 of 2016, decided on 17th September, 2019.
Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 7 & 21- L---Criminal Procedure Code (V of 1898), Ss. 87 & 88--- Summary trial---
Appreciation of evidence ---Punishment for absconder ---First Information Report was lodged
against accused persons for qatl -i-amd, at tempt to qatl- i-amd and rioting armed with deadly
weapons ---Trial Court acquitted accused persons but absconding accused was convicted and
sentenced to various counts of imprisonment in summary proceedings ---Validity ---No charge
was framed against abscondi ng accused under S. 21- L of Anti -Terrorism Act, 1997 and no
evidence was recorded to prove ingredients of S.21- L of Anti -Terrorism Act, 1997--- Trial
Court also failed to formulate a point for determination regarding offence under S.21- L of
Anti-Terrorism A ct, 1997 in judgment ---No evidence was available to show that absconsion
of accused was intentional and no finding was recorded by Trial Court to effect that
absconding accused was fugitive of law ---Trial Court in a cursory manner convicted and
sentenced accused under S.21- L, Anti -Terrorism Act, 1997 and procedure adopted by Trial
Court in convicting and sentencing accused under S. 21- L of Anti -Terrorism Act, 1997 was
illegal ---High Court set aside conviction and sentence awarded to accused by Trial Court a nd
acquitted him of the charge ---Appeal was allowed in circumstances.
Mir Akhlaq Ahmed and others v. The State 2008 SCMR 951 rel.
Syed Ayaz Zahoor and Sohail Rajpoot for Appellant.
Ahsan Rafiq Rana and Abdul Karim Yousufzai for the Complainant.
Ameer Hamza Mengal, DPG along with Wajahat Khan Ghaznavi, State Counsel.
Date of hearing: 22nd August, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant by way of instant appeal has impugned
the conviction and sentence awarded to him by learned Judge, Anti -Terrorism Court -II,
Quetta ("trial court"), through judgment dated 31.02.2012 ("impugned judgment") passed in
Case No.16 of 2010 which inter alia reads as under:
"So the accused in the light of above discussion has committed an offence under section 21 -L of the Anti -Terrorism Act 1997. He is convicted under section 21- L of
the A.T.Act, 1997 and sentenced to 10 years' Rigorous imprisonment with fine of Rs.30,000/ -."
2. The facts in brief necessary for disposal of instant appeal are that on 3.12.2008, FIR
No. 70/2008 was lodged with Police Station City Chaman on complaint of Abdul Wasay with the allegation that he runs a trading company under the name and style Haji Abdul Bari Trading Company at Chaman. On November 3rd 2008 some unknown persons had broken the western side wall of his shop and stolen Rs.750,000/ - from the locker (safe). The
complainant kept inquiring about the incident, when he came to know that it was accused Abdul Wali son of Muhammad Yar, Sadiq son of Mian Gul and Allauddin son of Abdul Haleem who committed theft. Thereafter, complainant contacted Mian Gul (late) father of accused Sadiq who replied that as soon as he returns from Tableegh he will settle the issue. On 28th of November 2008 when Mian Gul returned, he told the compl ainant that his sons
Abdul Wali and Allauddin have only stolen Rs.40,000/ - which they are ready to recuperate,
provided the police is not involved. On the fateful day at 11:00 am Haji Daroo Khan, Haji Naimat, Haji Mirza Khan sons of Haji Abdul Ghani and complainant's brothers Abdul Nafey and Ghafoor were present in complainant's shop, when Haji Daroo Khan and Haji Abdul Ghafoor were sent to Haji Mian Gul's shop adjacent to complainant's shop. Both of them returned after a while and told the complainant that Haji Mian Gul expelled them from his
shop using abusive words. At 11:15 am accused Sadiq and Muhammad Qasim sons of Haji Mian Gul, Mian Gul son of Toor Baz, Abdul Wali and Abdul Nafey sons of Muhammad Yar
came to complainant's shop. Accused Sadiq, Khan, A bdul Wali and Abdul Nafey were
equipped with Kalashnikovs, while Muhammad Qasim and Mian Gul were having pistols. They started firing on complainant party, who came out of the shop to save their lives and ran away. Because of accused Sadiq's firing Abdul G hafoor sustained injuries and fell down,
whereas Haji Naimatullah got injured due to firing made by Abdul Wali and Mirza Khan sustained injuries from the firing made by accused person Khan. Moreso, accused Allah Muhammad, Muhammad Yar, Fateh Muhammad and A llauddin along with 9/10 other
unknown persons also beat them with sticks. Due to the occurrence, people who gathered at the spot, saved them from clutches of the accused persons, who made firing and escaped the crime scene. The injured were taken to the h ospital. Later on complainant's brother Abdul
Ghafoor succumbed to the injuries in Civil Hospital Chaman. Thus, the crime report.
3. The prosecution submitted challan of the case before the learned trial court, whereby
the trial court proceeded with the case against the arrested accused and the appellant (absconding accused). After completion of codal formalities under sections 87 and 88, Cr.P.C. the trial court convicted the appellant under Section 21 -L of the Anti -Terrorism Act,
1997 (the "Act, 1997") and sentenced him to suffer five years' rigorous imprisonment with
forfeiture of his moveable and immovable properties. Thereafter the trial court proceeded the trial against the appellant in absentia and on conclusion of trial vide judgment dated 28th Februa ry 2009 convicted the appellant in absentia and co- accused (who faced trial) and
sentenced them to various terms of imprisonment. The accused persons challenged their
conviction before this court by way of filing criminal appeal No. 122 of 2009, which was
accepted by this court vide judgment dated 30.11.2010, whereby case was remanded to the trial court for proceedings afresh. In the post -remand proceedings yet again the appellant was
declared proclaimed offender, whereas the co -accused persons were tried b y the trial Court.
After framing of charge the prosecution produced its witnesses and on closure of prosecution
evidence, the statements of the accused persons were recorded under section 342, Cr.P.C.,
wherein they once again professed innocence. Though the co -accused persons did not
recorded their statements under section 340(2), Cr.P.C. but three defense witnesses were
produced by them. On evaluation of evidence so produced, the learned trial Judge while answering the point No.2 of the judgment acquitted all the accused persons facing trial but convicted the appellant under section 21- L of the Act, 1997 vide impugned judgment dated
31.02.2012, hence this appeal.
4. The appellant on having come to know of his conviction and sentence for an offence
punishabl e under section 21 -L of the Act, 1997 by way of impugned judgment, has impugned
the same before this Court in the instant appeal.
5. Arguments advanced from both the sides have been heard. We have also minutely
gone through the record available with the able assistance of learned counsel for the parties.
6. Admittedly after framing of the charge, the case proceeded and on conclusion of the
trial, all the accused involved in the case were acquitted of the offence/charge under section 265- H(i), Cr.P.C., while recording such acquittal, the learned trial Judge convicted and
sentenced the appellant for an offence punishable under section 21- L of the Act, 1997 in the
above terms.
7. Before proceedings further it would be advantageous to reproduced Section 21- L of
the Act, 1997, which reads as under:
"21-L. Punishment for an Absconder.---Whenever being accused of an offence under
this Act, absconds and avoids arrest or evades appearance before any inquiry, investigation or Court proceeding or conceals himself, and obstructs the course of justice, shall be liable to imprisonment for a term of not less than six months and not more than five years or with fine or with both."
From bare reading of section 21 -L of the Act, 1997, it appears that if any person
absconds or avoids arrest, evades appearance before any inquiry, investigation or court proceedings, then he will be convicted. Since, this has not been made an independent offence and punishment provided is not than five years hence it would not fall within meaning of section 21K of the Act, 1997, which reads as follows:
"21K. Offence triable by way of summary procedure. All offences under this Act punishable with imprisonment for a term of not more than six months with or without fine shall be tried by way of summar y procedure."
Thus, there appears no reason to deviate from procedure, provided by section 19(10)
to (12) of the Act even for trial of such offence because the Act recognizes two kinds of trial
procedure one is provided by section 19 of the Act and except ion thereto is by section 21K of
the Act. The limit, provided for less punishment for offence under section 21- L, brings
it out of the scope of section 21K (summary procedure). It may well be added that if the
procedure, provided by section 19(10) to (12) of the Act is not followed in trial of such offence (21 -L) it shall be a sheer violation of fair -trial which otherwise is guaranteed by
Articles 9 and 10- A of Constitution which, we are sure in believing, cannot be the intention
of the legislatu re. Thus, we would conclude that even if at any stage of the case, the Special
Court comes to a conclusion that the act of abscondence does constitute an offence within meaning of section 21 L then it would be required to follow the procedure, provided by section 19 of the Act. In short, no conviction legally could sustain for offence under section 21 L of the Act if requirements of section 19(10) to (12) of the Act are not followed as the
same otherwise are attempts to satisfy the requirement of Article 10 -A of Constitution."
8. Record reflects that proceedings under sections 87 and 88, Cr.P.C. were initiated for
declaring the accused Sadiq as proclaimed offender for the purpose of proceeding with the case in his absentia. Thereafter, charge was framed against the acquitted co -accused for the
main offences. Record further reveals that no charge was framed against the appellant/accused under section 21 -L of the Act, 1997. Record also reflects that no evidence
was recorded to prove the ingredients of section 21- L of the Act, 1997. The trial Court also
failed to formulate a point for determination regarding the offence under section 21- L of the
Act, 1997 in the impugned judgment. There was absolutely no evidence to show that absconsion of the appellant/accused was intentional and no finding has been recorded by the trial Court to the effect that appellant was fugitive of law. However, in a cursory manner learned trial Judge has convicted and sentenced the appellant/accused for the aforesaid offence. As such, the procedure adopted by the learned trial Judge in convicting and
sentencing the appellant/accused under section 21- L of the Act, 1997 appears to be
absolutely illegal.
9. The appellant (in his absentia), indeed has been convicted and sentenced for an
offenc e punishable under section 21- L of Anti -Terrorism Act, 1997 in a cursory manner by
learned trial Judge on adopting the procedure, which was violative of Articles 9 and 10(1) of the Constitution of Islamic Republic of Pakistan, 1973 and Section 10(11- A) of the Act, 1997,
which could not be consented.
10. In case of Mir Akhlaq Ahmed and others v. The State (2008 SCMR 951), it was held
that:--
"In view of the above, we feel that the trial of 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 rende red 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".
11. In the present case the appellant/accused was acquitted of the charge under sections
302, 324, 147, 148, 149, P.P.C. read with section 7 of the Act, 1997. There is no record to
prove the offence under section 21- L of the Act, 1997 against the appellant /accused.
In view of the above discussion, while relying upon the case as referred to above, we
are of the firm view that the conviction of appellant Sadiq for the offence under Section 21- L
of the Act, 1997, recorded by the trial court in Case No. 16 of 2010 is violative of Articles 9 and 10- A of the Constitution of Islamic Republic of Pakistan, 1973.
As a result, the appeal is allowed, conviction and sentence awarded to the
appellant/accused by the trial court for offence under Section 21- L of the Act, 1997 vide
judgment dated 31.02.2012 is set aside and the appellant/accused is acquitted of the charge.
These are the reasons for our short order dated 22.08.2019 announced in open court.
MH/112/Bal. Appeal allowed.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,
let us know.