MALIK HAQ NAWAZ, J.---The instant criminal appeal has been filed by the appellant/convict against the judgment/order of learned Anti-Terrorism Court No.1, whereby the appellant was sentenced to 10 years' R.I. under section 21-L of Anti-Terrorism Act, 1997.
2. The brief facts of the case are that one Syed Nizam-ud-Din Rizvi lodged FIR No. 12/2005 under sections 302/324/34/109, P.P.C. read with sections 6/7 of ATA on 08.01.2005 at Police Station City Gilgit regarding murder of his real brother Syed Aga Zia-ud-Din Rizvi. The complainant did not charge any one for commission of offence, however he raised a finger of suspicion towards the involvement of Qazi Nisar Khateeb, Jamiah Masjid Ahle Sunnat wal Jamat, Himayat Ullah Khan, MLA, Maulana Khalil Ahmad Khateeb Moti Masjid Ghari Bazar and one Muhammad Abbas Advocate, Secretary General Tanzeem Ahle Sunnat Wal Jamat.
3. The police after usual investigation submitted challan against about 14 accused, out of whom accused Afsar Jan, Abdul Sadiq, Muhammad Anwar, Noor Jan, Akhter Jan, Aurangzeb, Alamzeb, Shah Raees, Muhammad Alam and Azhar Wali stood trial in the trial Court, while 5 accused namely Molvi Nadeem (appellant) Qari Bilal, Naqeeb Ahmad, Bashir Ahmad and Shakirullah were tried in absentia.
4. On conclusion of trial the learned Judge Anti-Terrorism Court announced its verdict on 10-08- 2015. The appellant along with some other co-accused tried in absentia were adjudged guilty under section 21-L by the trial Court and awarded 10 years' R.I. Para 166 of the judgment of trial Court which pertains to the appellant is re-produced as under:-
166. "In view of the discussions made in paras Nos. 17 to 161 above, my findings against proclaimed offenders/absconders accused Molvi Nadeem, Qari Bilal, Naqeeb Ahmad and Basheer Ahmad are as under:-
(i) The names of absconders accused Molvi Nadeem and Qari Bilal is appearing in the confessional statements Ex.PW-62/C of accused Mohammad Anwar Muavia, Ex.PW-62/D of accused Abdul Sadiq, and Ex.PW-62/F of accused Akhtar Jan. The above named absconders accused as well as absconders accused Naqeeb Ahmad and Basheer Ahmad have been declared as proclaimed offenders after fulfillment of the legal formalities as provided under section 19(10) of the Anti- Terrorism Act, 1997. The abscontion of the said accused is a corroborative piece of evidence against them.
(ii) In view of the above, I hold that the prosecution has proved the guilt of the absconder accused Molvi Nadeem, absconder accused Qari Bilal, absconder accused Naqeeb Ahmad and absconder accused Basheer Ahmad up to the extent of their abscontion as provided under section 21-L of the Anti-Terrorism Act, 1997. Hence, I, convict the proclaimed offender Molvi Nadeem, proclaimed offender Qari Bilal, proclaimed offender Naqeeb Ahmad and proclaimed offender Basheer Ahmad under section 21-L of the Anti-Terrorism Act, 1997 and sentence them each to undergo 10 years' rigorous imprisonment. Perpetual warrant be issued against the above named convicted proclaimed offenders. The above named convicts/proclaimed offenders shall be tried after their arrest"
5. After arrest as alleged by the convict/appellant and not denied by the prosecution, the appellant was arrested from Rawalpindi on 19.09.2016 and then brought to Gilgit and was produced before the Anti-Terrorism Court Gilgit. The appellant was handed over to the Investigation Wing and after necessary investigation he was committed to judicial custody to face trial. The appellant moved an application under section 19(2) before the trial Court for setting aside his conviction, which was declined and on 29.03.2017, the learned trial Court upheld its own judgment dated 10.08.2015, which was passed in absence of the accused/appellant.
6. Being aggrieved from the above judgment/order the appellant filed the instant appeal against his conviction.
7. The learned counsel for the appellant submitted at bar that the judgment of the learned trial Court is not sustainable in the eyes of law and the appellant has been convicted on the basis of no evidence as there is not a single iota of evidence available against the appellant. Per learned counsel the so-called "abscondence" is not proved in accordance with law, as the appellant's abscondence was neither intentional nor deliberate. Further that the warrants under section 204, Cr.P.C. and proceedings under sections 87/88, Cr.P.C., are defective in nature as the name/address of the appellant is wrongly mentioned therein. The learned counsel drew our attention to this crucial fact, where in all the processes issued against the appellant his name has been shown as Nadeem son of Aziz resident of Minemarg Astore, whereas the correct name of appellant as per CNIC is Muhammad Nadim son of Abdul Aziz, resident of Thali Bala Qameri Minemarg. The appellant could not be served the process due to wrong address thus the abscondence is not legally proved. During the period of alleged abscondence, the appellant/convict was studying in a renowned institution Jamia Ashrafia Lahore. The learned counsel further contended that the appellant was arrested from Rawalpindi on 19.09.2016, then he was shifted to Gilgit on 21.09.2016 and on 22.09.2016 he was produced before the learned trial Court, where he was informed that he has been convicted under section 21-L of Anti-Terrorism Act, 1997 in absentia. Lastly the learned counsel submitted that remand of the appellant was granted to JIT for 12 days but nothing incriminating could be recovered from the possession of the appellant and his conviction under section 21-L, is bad in law and be set aside.
8. On the other hand the learned Dy. Advocate-General contended that the appellant remained absconder for a considerable period. The judgment was announced on 10.08.2015, whereas the appellant was arrested on 21.09.2016. The long abscondence from 08.01.2015 to 21.09.2016 cannot be condoned on any pretext. The learned Dy. A.G. contended that conviction of the appellant be maintained in the interest of justice.
9. We have heard both the parties at a considerable length and minutely scanned the entire evidence with their able assistance. Trial in absentia under section 19(10) of Anti-Terrorism Act, 1997, is a departure from the normal procedure of trial of a criminal case. For the purpose of convenience section 19(10) of Anti-Terrorism Act, 1997, Article 9 of the Constitution of Pakistan and section 353, Cr.P.C. are. A re-produced for ready reference:- S.19(10).... "Any accused person may be tried in his absentia if the Anti-Terrorism Court after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view to impending the course of justice: Provided that the accused person shall not be tried under this subsection unless a proclamation has been published in respect of him in at least [in one daily newspapers including sindi 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 subsection shall be deemed not to have admitted the commission of any offence for which he has been charged."
Article-9 of Constitution of Pakistan.
Security of a person... No person shall be deprived of life or liberty save in accordance with law.
S. 353, Cr. P . CEvidence to be taken in presence of accused.... Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXJI-A] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.
9(sic.) A careful study of above provisions of Anti-Terrorism Act, 1997, section 19(10) of Anti- Terrorism Act, 1997 and Article 9 of Constitution of Pakistan and section 353, Cr.P.C., make it abundantly clear that fair trial is an inherent right of an accused guaranteed by the Constitution of Pakistan, as well as by Chapter-II of Gilgit-Baltistan Self-Governance and Empowerment Order, 2009, which unequivocally stipulates that trial in absentia of an accused would be violation of his fundamental rights. The Supreme Court of Pakistan in criminal appeal B No. 269 of 2003 titled Gul Zara Qari v. The State has held that trial in absentia is illegal and unwarranted. The ratio decidendi of above judgment was followed by Karachi High Court in two judgments reported in PLD 2006 Kar.
678 and 2005 PCr.LJ 1889. In another case reported, in 2008 SCMR 2008, Supreme Court of Pakistan struck down the conviction recorded in absentia, by the Court of Anti-Terrorism declaring the same as illegal and against the spirit of a fair trial. The relevant portion of the judgment is re-produced as under:- "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 re-trial of the case."
10. In the case of present appellant, it is pertinent to mention here, that as the appellant was tried in absentia, no charge was framed against him. After his arrest instead of sending him to judicial lockup, he was handed over to Joint Investigation Team and a remand of 12 days was allowed to joint investigation team for further investigation. Challan against the appellant was submitted in the Court of Anti-Terrorism No. 1 Gilgit and instead of framing the charge, the learned trial Court opted to decide application of the appellant filed on his behalf under section 19(12) and upheld the sentence awarded to him in absentia. We scanned the whole file and repeatedly asked the learned Dy. A.-G. to lay hand on any incriminating evidence but he could not read out a single piece of incriminating evidence against the appellant. The conviction in the instant case was handed down against the accused without following the mandatory provisions of law and without affording an opportunity of hearing to the accused. When after investigation challan was submitted before the trial Court the trial Court was bound to frame the charge and afford a fair opportunity of defense to the accused, which has not been done. The absconder is a person, who is intentionally evading and avoiding service of notices, summons or warrant issued to him and intentionally makes him inaccessible to the process of law.
11. The provisions of section 19(10), Anti-Terrorism Act, 1997 are a departure from the general law and if the conviction has to be recorded in absentia under the umbrella of section 19(10), the trial Court must adhere and observe that the procedure provided therein has been followed in letter and spirit. In the case in hand the particulars of the appellant are recorded in a casual and lethargic manner and it could not be said with exactitude that the process of law were duly and properly sent on the proper address of the appellant. When accused had taken a specific plea that he was unaware of any such proceedings against him, in absence of any proof contrary to his stance, we are of the view, that the stance taken by the accused may have to be accepted as correct. Now there is no cavil in the proposition of law that when there are two possibilities before the Court, the one which favours the accused should be adopted. We are convinced that the appellant due to incomplete particulars and wrong address remained unaware of any such proceedings, which aspect of the case has not been taken into consideration by the learned trial Court and the trial Court dismissed the application under section 19(12) in a hasty manner and without proper application of judicial mind. It was obligatory for the prosecution to prove that the summons/warrants were properly sent on proper address and the accused intentionally avoided to surrender himself before the process of law.
12. In view of above discussion, we hold that prosecution has miserably failed to connect the appellant with the commission of the offence. The judgment of trial Court dated 10.08.2015 is set aside. The appellant is in judicial lock up and the jail authorities are directed to release him forthwith if not required to be detained in any. other case.
13. In view of above, the instant criminal appeal bearing No.15/2017 is disposed of in the above terms.