2022 P Cr. L J 360
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
MEERAN BAKHSH alias MATRU---Appellant
Versus
The STATE--- Respondent
A.T.A. Criminal Appeal No. (s) 69 of 2020, decided on 23rd November, 2020.
Penal Code (XLV of 1860) ---
----Ss. 302(c) & 34--- Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21- L---Qatl-i-amd,
common intention, acts of terrorism ---Appreciation of evidence ---Punishment for an
absconder ---Accused was charged for committing murder of the deceased ---Accused were
declared proclaimed offenders and were convicted ---Scope ---Record transpired that no
charge was framed against the accused under S. 21- L of Anti -Terrorism Act, 1997---Record
also reflected that no evidence was recorded to prove the ingredients of S. 21- L of the Act ---
Trial Court also failed to formulate point for determination regarding the offence under S.
21-L of the Act, in the impugned order ---No evidence to show that absconsion of the accused
was intentional and no finding had been recorded by the Trial Court to the effect that accused
was fugitive of the law ---Procedure adopted by the trial judge in convicting and sentencing
the accused under S. 21- L of the Act, appeared to be absolutely illegal ---Accused, indeed had
been co nvicted and sentenced for an offence punishable under S. 21- L of the Act, in a
cursory manner by the trial judge on adopting the procedure, which was violative of Arts. 9 & 10(1) of the Constitution, and S. 10(11- A) of the Act, which could not be consented---
Appeal against conviction was allowed and the case was remanded to the Trial Court to frame charge under S. 21 -L of the Act, against the accused as well as for the alleged offence
and to further proceed in accordance with the law.
Mir Akhlaq Ahmed and others v. The State 2008 SCMR 951 rel.
Ali Hassan Bugti for Appellant.
Date of hearing: 28th October, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant by way of the instant appeal has
impugned the conviction and sentence awarded to him by learned Judge, Anti -Terrorism
Court Dera Allah Yar ("trial court"), through the order dated 25.03.2015 ("impugned order") passed in ATC Case No.09 of 2015 which inter alia reads as under:
"For the forgoing reasons, absconding offenders, namely, Ameer Ali alias Mullan son
of Meeran Bakhsh, Meeran Bakhsh alias Matru son of Lanja, by caste Bugti, are hereby declared being proclaimed offenders, therefore, they are convicted under section 21 -L of Anti -Terrorism Act, 1997 and sentenced them to suffer Five (05)
years' Rigorous Imprisonment with fine of Rs.200000/ - (two lac) in default thereof to
undergo for further period of six (06) months' Simple Imprisonment, their sentences shall commence after their arrest."
2. The facts in brief necessary for disposal of the insta nt appeal are that on 19.01.2015
the FIR No. 01 of 2015 was lodged with Police Station Malgzar District Jaffarabad on the complaint of Jaffar Khan son of Lal Bakhsh with the allegation that the accused committed murder of deceased Mst. Razul.
3. The prosec ution submitted challan of the case before the learned trial court, whereby
the trial court proceeded with the case against the appellant (absconding accused). After completion of codal formalities under sections 87 and 88, Cr.P.C. the trial court convicte d
the appellant under section 21- L of the Anti -Terrorism Act, 1997 (the "Act, 1997") vide
impugned order dated 25.03.2015 and sentenced him in the above terms. Where -after the
instant appeal has been filed.
4. We have heard the learned counsel for the appe llant and have gone through the record
with his able assistance.
5. Before proceedings further, it would be advantageous to reproduce 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 a 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 the meaning of section 21K of the Act, 1997, which reads as follows:
"21K. Offence triable by way of summary proce dure. 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 summary procedure."
Thus, there appears no reason to deviate from the procedure, provided by section
19(10) to (12) of the Act even for the trial of such offence because the Act recognizes two
kinds of trial procedure one is provided by section 19 of the Act and exception 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 the trial of
such offence (21 -L) it shall be a sheer violation of f air-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 legislature. Thus, we would conclude that even if at any stage of the case, the Special Court comes to a conclusi on 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 t he 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.
6. Record transpires 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 a determination regarding the offence under section 21- L of the Act, 1997 in the
impugned order. 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 the law. However, in a cur sory 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 ap pears to be absolutely illegal.
7. The appellant (in his absentia), indeed has been convicted and sentenced for an
offence 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.
8. In the case titled as 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 sent ences
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".
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 Meeran Bakhsh alias Matru son of Lanja for the offence under section 21- L of the Act, 1997, recorded by the trial court in ATC Case
No. 09 of 2015 is violative of Articles 9 and 10 -A of the Constitution of Islamic Republic of
Pakistan, 1973.
As a result, the appeal is allowed to the extent of the appellant, conviction and
sentence awarded to the appellant/accused by the trial court for offence under section 21 -L of
the Act, 1997 vi de impugned order dated 25.03.2015 is set aside, and the case is remanded to
the trial court to frame charge under section 21 -L of the Act, 1997 against the appellant as
well as for the alleged offence and to further proceed in accordance with the law.
JK/13/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,
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