' IJAZ AHMAD CHAUDHRY, J.--Qari Abdul Hayee and Shafique Ahmad alias Raheel appellants along with others were tried, in absentia, by the learned Judge, Special Court Anti-Terrorism, Dera Ghazi Khan for having allegedly committed an offence punishable under sections 302/ 324/295/109/148/149, P.P.C. Read with section 3 of Explosive Substances Act, 1908 and 13 of Arms Ordinance 1965 reported vide F.I.R. No.8 of 1994 dated 21-1-1994 at Police Station, Shahr Sultan District, Muzaffargarh and vide judgment dated 14-1-1998 they having been found guilty were convicted:-- ' under sections 302/149, P.P.C. Read with sections 6 and 7(i) of Anti-Terrorism Act, 1997 and sentenced to death on six counts; ' under sections 324/149, P.P.C. Read with sections 6 and 7(ii) of the Anti-Terrorism Act, 1997 and sentenced to 10 years' R.I. Each on 18 counts with fine of Rs.50,000 each on 18 counts or in default of payment thereof to further undergo two years' R.I. Each on 18 counts. They were also directed to pay Rs.10,000 to each of the injured i.e. On 18 counts as compensation or in default of payment thereof to undergo six months' R.I. Each on 18 counts; ' under sections 148/149, P.P.C. And sentenced to three years' R.I. Each with fine of Rs.10,000 each or in default of payment thereof to undergo R.I. For six months each; and ' under section 295, P.P.C. And sentenced to two years' R.I. Each with fine of Rs.5,000 each or in default of payment thereof to further undergo six months' R.I. Each.
' However, Qari Ubaidullah co-accused, who had faced the trial in person, was acquitted of the charges by extending him the benefit of doubt.
2. Both the appellants, namely Qari Abdul Hayee and Shafique Ahmad alias Raheel after their arrest have assailed their conviction and sentence through separate Criminal Appeal No.11 of 2003 and Criminal Appeal No.6 of 2004 respectively through jail whereas Murder Reference No.2 of 2003 was sent by the learned trial Court for confirmation of death sentence by this Court. Since all these matters arise out of the same judgment, we have opted to decide the same through this single judgment.
3. The prosecution story in brief is that Mushtaq Hussain complainant (P.W.10) got registered the above said case while stating that on 21-1-1994 they were offering Tasbeeh after the Zohrain prayer in Masjid Masoomia Jafriah situated in Kasba Shehar Sultan when firing suddenly started from the main gate of the said mosque as a result of which four persons namely, Riaz Hussain, Muhammad Ishfaq, Jind Wadda and Syed Fazal Hussain Shah succumbed to the injuries at the spot while Pathaney Khan and Rajab Ali died in the Nishter Hospital due to the injuries sustained by them in the incident. Moreover, 18 other persons also received injuries as a result of said firing who were shifted to the hospitals as well.
4. The investigation of this case was conducted for a long period and certain persons were joined therein as accused persons on different occasions and reports under section 173, Cr.P.C. Were also submitted against them. Lastly during the investigation of case F.I.R. No.103 of 1994 registered at Police Station, City Sargodha Shafique Ahmad alias Raheel appellant disclosed that he along with Abdul Hayee appellant and Ali Sher co-accused had committed the occurrence of Shehar Sultan in which six persons from Shia sect were murdered. According to his disclosure arms and other material of the journey were provided by Inatullah Shah alias Jamil Shah, a ring Leader who had also planned the commission of the offence. Later on said Shafique Ahmad alias Raheel appellant allegedly escaped from the Faisalabad Hospital. The present appellants along with others became fugitive from justice. Only Qari Ubaidullah (acquitted accused) had faced the trial. The present appellants along with others were declared proclaimed offenders after publication of proclamations in the newspapers and after appointing the State counsel on their behalf the trial was completed against all the accused as a result whereof the impugned judgment of conviction and sentence was passed against the appellants and other co-accused which is being assailed through these appeals.
5. We have heard the learned counsel for the parties and also perused the record. Admittedly the trial against the appellants Was conducted in their absence. The validity of trials of accused persons, in absentia, came up before this Court for examination and in the judgment reported as "Zia Ullah Khan and others v. Government of Punjab and others" PLD 1989 Lahore 554, it was declared by this Court that such-like trials held in absence of the accused persons were ultra vires of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973. The said matter was also assailed before the august Supreme Court of Pakistan, but the above view of this Court on the said issue was not questioned or interfered with by the Supreme Court as is manifest from the "Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others" 1992 SCMR 602.
6. As a result of above the present trial against the appellants, having been held in their absence, cannot be sustained on account of this legal infirmity. Resultantly, the trial in question to the extent of the appellants together with the impugned conviction and sentence recorded against them by the learned trial Court through its judgment dated 14-1-1998 are set aside.
7. Since the appellants have now surrendered them before the process of law, the case is remanded back to the learned trial Court for a fresh trial in accordance with law, which shall be completed within three months positively from the receipt of copy of this judgment. The appellants are presently in jail, who shall be treated as under trial prisoners in this case and called upon by the learned trial Court to face the trial in accordance with law.
8.. Both Criminal Appeals Nos.11 of 2003 and 6 of 2004 stand disposed of in the above terms whereas Murder Reference No.2 of 2003 to the extent of both the appellants is replied in negative.