M. TABASSUM AFTAB ALVI, C J.--The supra titled Appeal has been preferred against the impugned judgment of Banks Special Court, Muzaf farabad, dated 23.07.2005, whereby sentences of 03 years and 06 months simple imprisonment were awarded to appellants-convicts in offences under sections 467/51 1, 468/51 1, 471/51 1 and 420/51 1,A.P .C, whereas other accused-persons, Abdul Latif Sulehria and Ishfaq Ahmad Sulehria, were acquitted of the charges.
2. The facts precisely stated are that Muhammad Maqbool Aftab, Manager National, Bank of Pakistan, Secretariat Branch, Muzaf farabad, lodged a written report at Police Station City, Muzaf farabad, alleging therein that on 26th November , 2004, he was performing his duty as usual, meanwhile, at about 1:00 pm, Iftikhar Hussain Gillani, brought a Mail Transfer Advice (MTA) No,0986642 amounting to Rs,93,96,000/-, dated 24th November , 2004, issued by Hoor Market Branch Karachi, and requested to deposit, the same in his current Account No,1672. He further averred that National Bank Head Office had already issued a circular , containing directions to avoid fraud; hence, he, according to the directions of the aforesaid circular and Bank Rules, contacted to Hoor Market Branch Karachi, through a telephonic call, for verification of the aforesaid MTA, whereby he was told that the said MTA was not issued by Hoor Market Branch Karachi, hence, Iftikhar Hussain Gillani, by playing fraud prepared a forged MTA amounting to Rs,93,96,000/- and made inglorious attempt to cause huge loss/d amage to the Bank. He further alleged that accused belongs to an organized group, who, by committing fraud, also obtained huge amount from different Branches of NBP in Pakistan. The accused was forthwith handed over to Rescue 15. The Mail Transfer Advice No,0986642, the responding Branch voucher No,1653428-8, the Bank statement of Account of Iftikhar Hussain Gillani and Bank information circular No,190/2004 dated 12.11.2004, were attached with application and it was requested to initiate proceedings against the said accused.
3. As per the aforesaid report, a case under Sections 467/468 and 471/420, A.P.C, was registered against convicts and others, at Police Station City, Muzaf farabad, on 26th November , 2004, at about 4:30 pm, and investigation was started. During investigation, Iftikhar Hussain Gillani, accused, made disclosure before police that besides him, Ejaz Bukhari, Muzaf far Sulehria, Azam Sulehria and Abdul Latif Sulehria (local persons), along with some outsiders belonging to Karachi and Peshawar , were also involved in the instant incident, and on the pointation of Iftikhar Hussain Gillani, accused-persons Habib-ur-Rahman, Gul Said Khan, Muhamma d Aasim and Nizamdeen, who came at Muzaf farabad through Car No.39 28, were also taken into custody . After necessary investigation, a challan was submitted before concerned Court, in offences under sections 467, 468, 471 and 420,A.P .C. against the aforesaid accused-persons. The trial Court examined the accused-persons under Section 242, Cr.P.C., on 25.04.2005, who denied the guilt. Thereaf ter, prosecution produced evidence in support of its case. The statements of accused-persons as required by section 342, Cr.P.C. were recorded on 29.06.2005, who once again denied the guilt.
4. The Court below , after conclusion of trial and hearing, recorded the impugned judgment dated 23.07.2005, through which, accused-persons, namely , (i) Iftikhar Hussain Gillani, (ii) Ejaz Hussain Bukhari, (iii) Nizam-ud-Din
(iv) Muhammad Aasim Khan, (v) Haji Habib-ur-Rahman and (vi) Gul Said Khan, were convicted and sentenced to 03 years 06 months simple imprisonment under sections 467/51 1, A.P.C., 03 years 06 months simple imprisonment in offences under section 468/51 1, A.P.C, 06 months simple imprisonment under sections 471/51 1, A.P.0 and 03 years 06 months simple imprisonment in offences under section 420/51 1 A.P.C. It was further ordered that all the sentences shall run concurrently . The benefit of section 382-B, Cr.P.0 was also extended in their favour . The accused-persons, Abdul Latif Sulehria and Ishfaq Ahmad Sulehria, were acqu itted of the charges, whereas Muzaf far Sulehria, accused, was discharged from the proceedings initiated against him under section 512,Cr .P.C, vide the impugned judgment dated 23rd July, 2005. The aforesaid judgment has been called in question by appellants-convicts, through the titled Appeal, which is subject matter of the instant judgment.
5. Raja Ayyaz Ahmad, the learned Assistant Advocate General, appearing on behalf of State, submitted that after pronouncement of the impugned judgment, present appellants-convicts, were detained in District Prison, Muzaf farabad, who filed the instant appeal through Counsel; however , during earthquake in year 2005, due to collapse of Prison Building, they fled away , and their Counsel, as then was, Mr. Sadaqat Hussain Raja, was elevated as Judge of this Court, and since then nobody is appearing on behalf of appellants-convicts. He contended that appellants-convicts delibe rately left territory of AJ&K, whose whereabouts were also not found in Pakistan since pendency of appeal and they have not surrendered before this Court for the last 14 years, therefore, they have no right of hearing. He finally craved for dismissal of appeal.
6. We have given our earnest consideration to the arguments addressed at Bar by the learned State Counsel and minutely gone through record of the case.
7. We are cognizant that hearing of appeal is a valuable right of an accused; however, the accused who after conviction files an appeal before Appellate Court, then a duty is also casted upon him that he should be present in Court or in Prison or duly represented by his Counsel. It is important to observe here that a case under Sections 467/468 and 471/420, A.P.C, was registered against appellants-convicts and co-accused persons, at Police Station City, Muzaffarabad, on 26th November, 2004. They were convicted and sentenced to 03 years 06 months simple imprisonment under sections 467/511, A.P.C., 03 years 06 months simple imprisonment in offences under section 468/511, A.P.C, 06 months simple imprisonment under sections 471/511, A.P.C. and 03 years 06 months simple imprisonment in offences under section 420/511, A.P.C, vide the impugned judgment dated 23.07.2005. After pronouncement of the said judgment, they ware put in District Prison, Muzaffarabad, who filed the instant appeal through Counsel however, during earthquake in year 2005, due to collapse of Prison Building, they fled away, and their Counsel, as then was, Mr. Sadaqat Hussain Raja, was elevated as Judge of this Court, and since then nobody is appearing on behalf of appellants-convicts. The appeal is pending since 2005, and this Court has tried its level best to procure attendance of appellants-convicts through summons, bailable warrants and even non-bailable warrants were also issued but all in vain, because their whereabouts were not found at the given addresses in Pakistan since pendency of appeal, rather during earthquake in year 2005, they deliberately left territory of AJ&K and have not surrendered before this Court for the last 14 years; therefore, as per our humble view, when a fugitive does not surrender, he deprives himself of the relief claimed. The aforesaid view is fortified from a case titled Hayat Bakhsh and others v. The State [PLD 1981 SC 265 ], wherein, it was held as under:- "There is considerable weight in the argument that when a convict becomes fugitive before filing petition for leave to appeal, his petition itself would not be properly constituted. This can be noticed as one line of reasoning in the case of Gul Hassan. The second proposition submitted by the learned Counsel is also correct, because it flows from the first one, if a convict after filing a petition becomes fugitive and does not surrender , he deprives himself of the relief claimed in the petition. Similarly , there would be no difference if he absconds after obtaining leave to appeal, or after obtaining a bail order . It is not possible to agree with Mr. Zafar that in this situation the absconder can get the benefit of his appeal being kept pending sine die till he surrenders. Nor will there be any justification for the proposition that if there are more convicts/appellants, the appeal of the absconder should be separated and adjourned sine die to await his surrender in case he cannot be benefited on the hearing of the appeal of his co- appellant. There is no basis or principle for adopting this suggestion as a normal course by this Court; and if that is done, it would be placing premium on the negative conduct of the absconding appellant if he is allowed to remain fugitive from justice and also benefited by deciding his appeal in his favour when hearing the appeal of his co- convict. Such a course, if adopted as a normal routine would not only encourage abuse of process of this Court, but would also disturb the fabric of administration of justice at the appellate stage."
8. It would not be out of place to observe here that when an absconder after his arrest loses his right of bail and so if an accused after trial is found guilty and after being sentenced, files an appeal; however , absents himself, then he has no right of appeal. The aforesaid view is fortified from a case reported as Sikandar and others v. The State [2001 MLD (Lahore) 300] , wherein, it was observed as under:- "If in such like cases in absence of the appellant/accused, appeal is heard and same is succeeded then every person whose appeal would be pending in this Court will try to absent himself or he would abscond till the decision of his appeal and if the result of the appeal will be in his favour then he will come in picture otherwise he will remain out of the country and will try to conceal himself. This will become a trend which cannot be allowed. It will damage the whole criminal judicial proceedings. I am of the considered view that when an absconder after his arrest loses his right of bail and so if an accused after trial and he is found guilty and after being sentenced he files an appeal his sentence is suspended by the appellate Court and after being released on bail he absents himself then he has no right of appeal. In this view of the matter this appeal has no merit and the same is dismissed."
We after deep deliberation respectfully follow the aforesaid view of the Hon'ble Supreme Court of Pakistan, as well as, the Lahore High Court, Lahore.
8. The crux of above discussion is that appellants-convicts deliberately left territory of AJ&K and did not surrender before this Court for the last 14 years; therefore, their appeal has no merit; hence, the same stands dismissed.