Mian Hamid Farooq, J.--"For the reasons to be recorded later, this appeal is allowed, the impugned judgment of the High Court is set aside and in consequence whereof, the conviction and sentence awarded to the appellants by the trial Court and maintained by the High Court, is also set aside.
The case is remanded to the trial Court for trial of the appellants in accordance with law."
2. Following are the facts and detailed reasons for the above noted short order dated 6.2.2008, whereby, we allowed the appeal, and remanded the case to the trial Court for trial of the appellants.
3. The instant appeal, instituted by Mir Ikhlaq Ahmed and Javed Ahmed both sons of Sardar Muhammad Ishaque (appellants), by the leave of Court, proceeds against the judgment dated 3.5.2005 (announced on 24.5.2005), whereby, the learned Division Bench of High Court of Balochistan, Quetta answered Murder Reference (M.R. No, 2 of 2003) in affirmative and upheld the judgment dated 3.2.2003, through which the learned Special Judge Anti Terrorism Court, Khuzdar acquitted Sardar Muhammad Ishaque from the charge, convicted the appellants and the other absconding accused namely Riaz Ahmed and Noor Din sons of Sardar Muhammad Ishaque and Munir Ahmed son of Ghulam Muhammad, in absentia, under Section 302(b) PPC and sentenced them to death; the perpetual warrants of their arrest were issued.
4. Sardar Muhammad Ishaque son of Jumma Khan (acquitted accused), Ikhlaq Ahmed and Javed Ahmed both sons of Sardar Muhammad Ishaque (appellants), Riaz Ahmed, Noor Din both sons of Sardar Muhammad Ishaque and Munir Ahmed son of Ghulam Muhammad (still absconding) were tried by the Special -Judge Anti Terrorism Court, Khuzdar in case FIR No, 31 of 2002 for the offences under Sections 302/365-A/109/34 PPC registered with Levies Thana Baghbana District Khuzdar.
Moulvi Khalil Ahmed (PW-6) on 7.12.2002 filed complaint, whereupon formal FIR was registered. The prosecution case as unfolded in the FIR is that on 7.12.2002, Moulvi Khalil Ahmed was informed that sons of Sardar Muhammad Ishaque, namely, Mir Ikhlaq, Javed, Riaz, Noor Din and one Munir Ahmed son of Ghulam Muhammad along with other persons at Gharawah Balai Ghar stopped Khair Jan, who was driving a vehicle and going to his Khair Kapar along with womenfolk; they asked Khair Jan to leave the womenfolk and tried to abduct him along with the vehicle, however, due to intervention of the passengers of the vehicle, they could not succeed, whereupon, Mir Ikhlaq directed his brother Javed to shoot Khair Jan and then Javed fired with Kalashnikov on Khair Jan, who died at the spot. Further allegations are that they all escaped from the place of occurrence on two motorcycles, reached a place at a short distance, where Sardar Muhammad Ishaque was waiting for them in a vehicle, all the accused persons boarded in the vehicle and went away leaving the motorcycles on the spot. On receiving information about the said occurrence, Haq Nawaz (PW-9) Naib Tehsildar/Investigating Officer registered FIR (Ex.P/9-A) and went to the place of occurrence. He prepared site-plan (Ex.P/9-B) and death report of deceased, secured blood- stained stones and recovered five empties from the place of occurrence through inventory memo (Ex.P/7-A). On the request of relatives of the deceased, postmortem was not conducted and dead body was handed over to them without postmortem, vide Ex.P/9-D. The investigating officer recorded statements of the witnesses, completed the other formalities, arrested Sardar Ishaque (since acquitted) and submitted challan (Ex.P/9-F) before the Special Judge Anti Terrorism Court, Khuzdar. The learned Special Judge after receipt, of the challan issued process for the absconding accused persons, except Sardar Ishaque who only faced trial, their warrants of arrest were issued and as they failed to appear, therefore, they were declared absconders and trial was processed against them in absentia. Charge was framed under Sections 302/365-A/109/34 PPC, Sardar Muhammad Ishaque (acquitted accused) denied the charge and claimed trial, however, as against the absconding accused it was held that the charge was presumed to have been denied by them.
5. Out of the ten witnesses, produced by the prosecution before the trial Court, five claimed to be eye-witnesses. Acquitted accused was examined under Section 342 Cr.P.C, wherein he denied the charges. He also got recorded his statement on oath under Section 340(2) Cr.P.C. and produced five witnesses in defence. On conclusion of trial, learned Special Judge Anti Terrorism Court Khuzdar, vide judgment dated 3.2.2003, acquitted the accused Sardar Muhammad Ishaque from the charge but convicted all the absconding accused, in absentia, including the appellants, under Section 302(b) PPC and awarded death sentences to all of them. The perpetual warrants of arrest of all the absconding accused were issued.
6. The appellants and three other persons were convicted and sentenced in absentia, therefore, they did not file any appeal against the said judgment, however, trial Court sent Murder Reference (M.R. No, 2 of 2003) to the High Court of Balochistan, Quetta for confirmation of death sentences awarded to the aforementioned persons, No appeal was filed either by the State or complainant against acquittal of Sardar Muhammad Ishaque. Learned Division Bench of the High Court after receipt of the reference made a publication for appearance of the absconding accused, including the appellants, but as none of them turned up, therefore, Abdullah Baloch, Advocate was appointed as their counsel at State expense. The High Court after hearing the learned Public Prosecutor and the defence counsel upheld the judgment dated 3.2.2003 passed by the learned Special Judge and answered the murder reference in affirmative, vide impugned judgment dated 24.5.2005. The appellants were, statedly, arrested on 26.4.2006 and then, they filed time barred petition (Cr.P.L.A. No, 12-Q of 2006) before this Court seeking leave to appeal against the judgment dated 24.5.2005 passed by the High Court of Balochistan. This Court, on 31.10.2006, granted leave to appeal without commenting upon the question of limitation. Although there is no express order condoning the delay in filing the petition yet as leave to appeal was granted to the appellants, therefore, the delay in filing the petition deemed to have impliedly been condoned.
7. It appears appropriate to reproduce the leave granting order dated 31.7.2006, which reads as follows:-- "Heard Mr. Naeem Akhtar, learned ASC on behalf of petitioner, scanned the entire record with his eminent assistance and perused the judgment of learned trial and appellate Courts with care and caution. We are inclined to grant leave, inter alia, on the following points:--
(i) Whether in the absence of proper service the petitioner could have been convicted in absentia?
(ii) Whether death penalty awarded to petitioner does commensurate with the gravity of alleged offence as only proverbial lalkara has been attributed to the petitioner?
(iii)Whether the principal of consistency has been violated in case of petitioner who has been awarded death sentence whereas the co-accused having assigned a similar role has been acquitted?
(iv)Whether the conviction could have been awarded on the basis of interested, partisan and contradictory evidence?
(v) Whether the evidence which has come on record has been appreciated in its true perspective, settled norms of justice and well-entrenched principles qua criminal administration of justice or otherwise?
The appeal be fixed at some early date".
8. Learned counsel for the appellants, while referring to Section 19(10)(b) of Anti Terrorism Act 1997 has submitted that the trial of the appellants was held in absentia and they were not afforded an opportunity to defend the trial, therefore, both the judgments, the sentences and conviction of the appellants are violative of Article 9 of the Constitution of the Islamic Republic of Pakistan. He has also submitted that the impugned judgments were passed in violation of Article 10(1) of the Constitution of the Islamic Republic of Pakistan, which gives a right to an innocent person to consult and defended by a legal practitioner of his choice. He has relied upon the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). Conversely, the learned Additional Advocate General Balochistan although has supported the impugned judgments, yet could not effectively rebut the contention raised by the former.
9. We have heard the learned counsel for the appellants and Additional Advocate General Balochistan and perused the available material on record.
10. This Court in the case of Mehram Ali and others (supra), relied upon by the learned counsel for the appellants, has declared Section 19(10)(b) (since deleted) of the Anti-Terrorism Act, 1997 as violative of Article 10 of the Constitution of the Islamic Republic of Pakistan 1973 and having no legal effect. The said provision of law authorized a Special Court to try any accused in his absence, if it is satisfied that the behaviour of an accused is such as to impeding the course of justice and it could order for his removal from the Courts. It may be noted that pursuant to the dictum laid down in Mehram Ali's case Section 19(10)(b) was deleted from the Statute Book vide Ordinance No, XIII of 1999 dated 27.8.1999 and Ordinance No, IV of 1999 dated 27.4.1999. It appears appropriate to reproduce Section 19(10) of the Anti Terrorism Act, 1997; before its amendment and after amendment:-- Before amendment: "(10) Any accused person may be tried in his absence if the Special Court, after such inquiry as it deems fit, is satisfied that--
(a) Such absence is deliberate and brought about with a view to impeding the course of justice; or
(b) the behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court: Provided that, in a case referred to in clause (a), the accused person shall not be tried unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under Section 88 of the Code: Provided further that the Special Court shall proceed with the trial after taking the necessary steps to appoint an advocate to defend the accused person who is not before the Court. Explanation.--An accused who is tried in his absence under sub-section (10) shall be deemed not to have admitted the commission of any offence for which he has been charged." After amendment: "(10) Any accused person may be tried in his absence if the antiterrorism 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 person shall not be tried under this sub-section unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under Section 88 of the Code: Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an Advocate at the expense of the State to defend the accused person who is not before the Court.
Explanation.--An accused who is tried in his absence under this sub-section shall be deemed not to have admitted the commission of any offence for which he has been charged."
11. This Court in the case of Mehram Ali and others (ibid) while dilating upon the provision of clause
(b) of sub-section (10) of Section 19 has held that it is violative of Article 9 as well as 10 (1) of the Constitution of Islamic Republic of Pakistan and thus has no legal effect. It may be noted that rest of Section 19 was held to be a valid piece of legislation. The relevant portion of which is reproduced as under:-- "(iii) Though most of the learned counsel for the petitioners assailed Section 19 as a whole, but we are of the view that only clause (b) of sub-section (10) of Section 19 is violative of the fundamental right of access to justice. The above clause (b) of sub-section (10) of Section 19 authorizes a Special Court to order the removal of an accused person from the Court if his behaviour is such as to impede the course of justice and then to proceed with the case in absentia. An accused person for his misbehaviour in Court can be convicted for contempt of Court and punished, but on no principle of law, he can be denied the right to be present and to defend himself in a criminal matter. This Court has already held in the case of Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341) (supra) and Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) (supra) that the right of access to justice is a well recognized and inviolable right enshrined in Article 9 of the Constitution, which lays down that no person shall be deprived of life or liberty save in accordance with law. If an accused person is removed from the Court on account of his misbehaviour and in his absence the trial is concluded and he is sentenced to death, he will be deprived of his life without due course of law. Secondly, under clause (1) of Article 10 of the Constitution an accused person has the right to consult and be defended by a legal practitioner of his choice in case he is arrested and detained.
We therefore declare the above provision as violative of the above constitutional provision and having no legal effect."
12.Now coming to the present case. The appellants along with other persons were, admittedly, tried, in absentia, by the Special Judge, because they could not be arrested. They were convicted and sentenced in their absence, therefore, the question of their removal from Court, as visualized in the deleted Section 19(10)(b), does not arise. As noted above the said provision of law was deleted vide Ordinance No, XIII of 1999 dated 27.8.1999 and Ordinance No, IV of 1999 dated 27.4.1999. Thus, the said provision of law was not on the Statute Book when the judgment was passed against the appellants or even when the trial commenced. In view whereof, Section 19(10)(b) (since deleted) has no applicability in the present case, therefore, the reliance of the learned counsel on the said provision of law and on the case of Mehram Ali and others (ibid) is misconceived and misdirected.
13.In the case in hand, the trial of the appellants was conducted by the Special Judge and murder reference was answered in affirmative by the High Court in their absence. Now the question arises as to whether the trial against the appellants, in absentia, was validly and legally conducted. Article 9 of the Constitution of Islamic Republic of Pakistan envisages that no person shall be deprived of life or liberty save in accordance with law. Article 10(1) of the Constitution, inter alia, provides that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of his choice. Sub-section (11-A) to Section 10 of the Anti-Terrorism Act, 1997, which was inserted vide Ordinance No, XIII of 1999 dated 27.8.1999 and Ordinance No, IV of 1999 dated 27.4.1999, states that an accused person shall not be denied the right to consult or defend by a legal practitioner of his own choice. The afore-noted provision of law is in line with Article 10(1) of the Constitution and in fact reiterates the said article of the Constitution in letter and spirit. The appellants were absconding at the relevant point of time, therefore, they, undoubtedly, were denied the right to defend themselves and deprived the right to consult or defend by legal practitioner. The above question came up for determination before the Lahore High Court and the learned Division Bench of the said Court in the case reported as Zia Ullah Khan and others v.
Government of Punjab and others (PLD 1989 Lahore 554) has held that the trial of an accused person in absentia is violative of Article 10 of the Constitution of Islamic Republic of Pakistan. It may be noted that the said judgment was assailed by the Government of Punjab in Civil Appeal No, 680/1989 and this Court in a case reported as Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602) dismissed the appeal and upheld the judgment. Another Division Bench of the Lahore High Court in a case reported as Qari Abdul Hayee and another v. The State (2005 YLR 1865) while relying upon the aforesaid cases of Zia Ullah Khan and others and Government of Punjab through Secretary, Home Department (ibid) has also taken the similar view.
14.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 Courts, 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.
15.In view of the above discussion, we allow this appeal, set aside the impugned judgment and remand the case to the trial Court for decision afresh in accordance with law.