' SARDAR TARIQ MASOOD, J.---Khurram Shahzad alias Bhola son of Ahmad Khan, Muhammad Abbas son of Muhammad Aslam, Wasim and Amjad Sher sons of Nadir Khan, Nasir son of Khan, Arshad son of Aslam all proclaimed offenders/convicts along with acquitted accused Javed Akber son of Sardar Khan, Shabbir Hussain son of Muhammad Din alias Saieen, Muhammad Aslam son of Fazal Ahmad and Muhammad Khan son of Karam Dad were tried by Judge, Special Court-II, Anti- Terrorism, Rawalpindi Division and Islamabad Capital Territory for the murder of Asif deceased.
' Khurram Shahzad alias Bhola, Muhammad Abbas, Wasim, Amjad Sher, Nasir and Arshad convict persons and Javaid Akbar acquitted person were tried in absentia.
2. After completion of trial, six convict persons mentioned above were convicted under section 7(A)-ATA, 1997 read with section 302, P.P.C. And sentenced to death and to pay fine of Rs,1,00,000 (one lac) each, in default whereof they were further ordered to undergo one year's R.I. Each. The fine was ordered to be paid to the legal heirs of the deceased. Javed Akbar who was also tried in absentia was acquitted by, the trial Court. Three other co-accused namely Shabbir Hussain, Muhammad Aslam and Muhammad Khan who were facing trial were also acquitted by the trial Court vide judgment dated 27-3-2003.
3. The trial Court has sent Murder Reference No,45-T of 2003 for the confirmation of death sentence of the above mentioned convicts Khurram Shahzad alias Bhola etc. ' Admittedly, the above mentioned convicts have not been A arrested after the announcement of judgment by the trial Court. So they did not file any appeal against the said judgment. We intend to dispose of this Murder Reference through this judgment.
4. Mr. Tanvir lqbal Khan, Advocate Supreme. Court was appointed as Amicus Curaie to assist the Court on the point of trial in absentia.
5. Admittely, the trial of the above mentioned convicts was conducted by the Special Judge-II ibid in absentia. The only question involved herein is as to whether the trial against convicts in absentia was validly or legally conducted. Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 envisaged that no person shall be deprived of his life or liberty save in accordance with law.
According to Article 10 sub-clause (1) of the Constitution, no person arrested shall be denied the right to consult and defend by a legal practitioner of his choice.
6. From the above Articles it is quite clear that no accused person can be denied the right to consult or to be defended by a legal practitioner of his own choice. The above mentioned convicts 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 a legal practitioner. Thus, the trial in absentia is violative of the Articles of the Constitution. The convicts were not afforded an opportunity of being heard and thereby they were condemned unheard which is contrary to the principles of natural justice as well.
7. The above question came up for determination before this Court and the Division Bench of this Court in 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. Said judgment was assailed by the Government of the Punjab in Civil Appeals Nos.680-89. The honourable Supreme Court in case reported as Government of the 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 this Court in case reported as Qari Abdul Hayee and another v. The State (2005 YLR 1865) while relying upon the aforesaid case of Zia Ullah Khan (ibid) has also taken the similar view and observed that trials of accused in their absence are ultra vires of Article 10 of the Constitution and are illegal. The honourable Supreme Court in cases titled Muhammad Arif v. The State (2008 SCMR 829), Mir Ikhlaque Ahmad and another v. The State (2008 SCMR 951) and in case titled as Arbab Khan v. The State (2010 SCMR 755) had taken the same view and declared the trial in absentia as violative of Articles 9 and 10 of the Constitution and found the same contrary to the principles of natural justice.
8. Although, the convicts in this case are still absconding and they had preferred no appeal against the above mentioned judgment but we have to decide the Murder Reference sent by the trial Court. As already discussed, We observed that the trial of the convicts namely Khurram Shahzad alias Bhola, Muhammad Abbas, Wasim, Amjad Sher, Nasir and Arshad convict persons and Javaid Akbar acquitted person in absentia undertaken by the Special Judge, ATA Court-II is violative of Articles 9 and 10(1) of the Constitution of the Islamic Republic of Pakistan, 1973 and thus not sustainable in the eye of law. The convicts have not been afforded an opportunity of hearing and condemned unheard which is also against the principles of natural justice. When confronted learned DPG frankly conceded to this proposition. So, we are therefore convinced that the judgment of conviction and sentence passed by the trial Court in the absence of the convicts is not sustainable being violative of the constitution and the principles of natural justice.
9. As discussed above, the convicts have not filed any appeal and uptill now they have not been arrested, so their trial was illegal. Hence, the Murder Reference to their extent is answered in negative and the case is remanded back to the learned trial Court with the direction to proceed against Khurram Shahzad alias Bhola, Muhammad Abbas, Wasim, Amjad Sher, Nasir and Arshad convict persons under section 512 Cr.P.C. And they be tried afresh strictly in accordance with law as and when arrested. The death sentence of Khurram Shahzad alias Bhola, Muhammad Abass, Wasim, Amjad Sher, Nasir and Arshad convict persons is not confirmed.