ROZI KHAN BARRECH, J.---The appellant by way of the instant appeal has impugned the conviction and sentence awarded to him by learned Judge, Anti-T errorism Court Dera Allah Yar ("trial court"), through the order dated 25.03.2015 ("impugned order") passed in ATC Case No.09 of 2015 which inter alia reads as under: For the forgoing reasons, absconding offenders, namely , Ameer Ali alias Mullan son of Meeran Bakhsh, Meeran Bakhsh alias Matru son of Lanja, by caste Bugti, are hereby declared being proclaimed offenders, therefore, they are convicted under section 21-L of Anti-T errorism Act, 1997 and sentenced them to suffer Five (05) years'
Rigorous Imprisonment with fine of Rs.200000/- (two lac) in default thereof to undergo for further period of six (06) months' Simple Imprisonment, their sentences shall commence after their arrest."
2. The facts in brief necessary for disposal of the instant appeal are that on 19.01.2015 the FIR No. 01 of 2015 was lodged with Police Station Malgzar District Jaffarabad on the complaint of Jaffar Khan son of Lal Bakhsh with the allegation that the accused committed murder of deceased Mst. Razul.
3. The prosecution submitted challan of the case before the learned trial court, whereby the trial court proceeded with the case against the appellant (absconding, accused). After completion of codal formalities under sections 87 and 88, Cr.P.C. the trial court convicted the appellant under section 21-L of the Anti-T errorism Act, 1997 (the "Act, 1997 ") vide impugned order dated 25.03.201 5 and sentenced him in the above terms. Where-after the instant appeal has been filed.
4. We have heard the learned counsel for the appellant and have gone through the record with his able assistance.
5. Before proceedings further , it would be advantageous to reproduce section 21-L of the Act, 1997, which reads as under: "21-L. Punishment for an Absconder .---Whenever being accused of an offenc e under this Act, absconds and avoids arrest or evades appearance before any inquiry , investigation or Court proceeding or conceals himself and obstructs the course of justice, shall be liable to imprisonment for a term of not less than six months and not more than five years or with fine or with both."
From a bare reading of section 21-L of the Act, 1997, it appears that if any person absconds or avoids arrest, evades appearance before any inquiry , investigation or court proceedings, then he will be convicted. Since this has not been made an independent offence and punishment provided is not than five years hence it would not fall within the meaning of section 21K of the Act, 1997, which reads as follows: "21K. Offence triable by way of summary procedure. offences under this Act punishable with imprisonment for a term of not more than six months' with or without fine shall be tried by way of summary procedure."
Thus, there appears no reason to deviate from the procedure, provided by section 19(10) to (12) of the Act even for the trial of such offence because the Act recognizes two kinds of trial procedure one is provided by section 19 of the Act and exception thereto is by section 21K of the Act. The limit, provided for less punishment for offence under section 21-L, brings it out of the scope of section 21K (summary procedure). It may well be added that if the procedure, provided by section 19(10) to (12) of the Act is not followed in the trial of such offence (21-L) it shall be a sheer violation of fair-trial which otherwise is guaranteed by Articles 9 and 10-A of Constitution which, we are sure in believing, cannot be the intention of the legislature. Thus, we would conclude that even if at any stage of the case, the Special Court comes to a conclusion that the act of abscondence does constitute an offence within meaning of section 21-L then it would be required to follow the procedure, provided by section 19 of the Act:- In short, no conviet? on legally could sustain for offence under section 21-L of the Act if requirements of section 19(10) to (12) of the Act are not followed as the same otherwise are attempts to satisfy the requirement of Article 10-A of Constitution.
6. Record transpires that no charge was framed against the appellant/accused under section 21-L of the Act, 1997.
Record also reflects that no evidence was recorded to prove the ingredients of section 21-L of the Act, 1997. The trial Court also failed to formulate a point for a determination regarding the offence under section 21-L of the Act, 1997 in the impugned order . There was absolutely no evidence to show that absconsion of the appellant/accused was intentional, and no finding has been recorded by the trial court to the effect that appellant was fugitive of the law. However , in a cursory manner learned trial Judge has convicted and sentenced the appellant/accused for the aforesaid offence, As such, the procedure adopted by the learned trial Judge in convicting and sentencing the appellant/accused under section 21-L of the Act, 1997 appears to be absolutely illegal.
7. The appellant (in his absentia), indeed has been convicted and sentenced for an offence punishable under section 21-L of Anti-T errorism Act, 1997 in a cursory manner by learned trial Judge on adopting the procedure, which was violative of Articles 9 and 10(1) of the Constitution of Islamic Republic of Pakistan, 1973 and section 10(11-A) of the Act, 1997, which could not be consented.
8. In the case titled as Mir Akhlaq Ahmed and others v . The State ( 2008 SCMR 951 ), it was held that: "In view of the above, we feel that the trial of appellants, in absentia, undertak en 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-T errorism Ad, 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".
In view of the above discussion, while relying upon the case as referred to above, we are of the firm view that the conviction of appellant Meeran Bakhsh alias Matru son of Lanja for the offence under section 21-L of the Act, 1997, recorded by the trial court in ATC Case No. 09 of 2015 is violative of Articles 9 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
As a result, the appeal is allowed to the extent of the appellant, conviction and sentence awarded to the appellant/accused by the trial court for offence under section 21-L of the Act, 1997 vide impugned order dated 25.03.2015 is set aside, and the case is remanded to the trial court to frame charge under section 21-L of the Act, 1997 against the appellant as well as for the alleged of fence and to further proceed in accordance with the law .