' This is a petition under section 561-A, Cr.P.C. Of Amanullah's convict-petitioner who was convicted and sentenced to five years' R. I. And to a fine of Rs, 1,000 along with three others in a case against them under section 326/34, P. P. C. The appeal of all the convicts was disposed of by, this Court on 12-7-1980, maintaining their conviction and sentence except for reducing the sentence of fine to Rs, 500 each. Since Amanullah had never surrendered to custody after conviction, he has now come up for a rehearing of the appear, on the ground that he was never present before the Court and his appeal was never heard. This petition is opposed by Mr. Rashid Aziz, Advocate-General on the ground that the appellant had been a fugitive from law and had not served a single day's sentence after his conviction. His appeal having been dismissed, he shall, therefore, have to undergo the sentence awarded to him by the trial Court.
2. I am of the view that the conduct of Amanullah petitioner can better be appreciated, if I review the orders passed in this appeal from time to time.
3. The judgment in this case was announced by the trial Court on 29-11-1976 but on this date Amanullah did not appear. It is contended on his behalf that he was ill but no such submission was made before the trial Court. Later a joint appeal by the four convicts including the petitioner was preferred on 7-12-1976. It appears that a bail application was filed later which is now said to be the one dated 13-12-1976. It may be mentioned at the outset that there are material circumstances which will be detailed below which indicate that this application had been substituted at a much later date. It is noteworthy that in the grounds of appeal, it was mentioned that the convicts have been sentenced to two years' R. I. Which was factually incorrect. In the bail application, however, on 15-12-1976, notice was issued to the State on the ground that it was a case of short sentence. Since in the same bail application a prayer under section 540, Cr. P. C. For recalling some of the witnesses was made it was rejected on the same day. The bail application came up for hearing on 12-1-1977 when the State counsel pointed out that in fact it was not a case of short sentence. The convicts had been sentenced to five years' R. I., this petition was, therefore, dismissed. In all probability, the bail application dated 13-12-1976 was substituted later because if the facts which now appear in this application had been there before this Court, then the order would have been different.
Petitioner's case is that in this bail application in ground No, 5, it was stated that Amanullah petitioner No, 2 was still admitted to hospital and copies of the medical certificates of Dr. Muhammad Anwar dated 28-11-1976 were submitted along with it as Annexures "A" and "B". It may be mentioned at the outset that neither on the day of its admission nor on the day of the disposal of this bail application, this submission appears to have made before this Court, otherwise there would have been some order made about the petitioner. It is noteworthy that thereafter Amanullah, petitioner, made no attempt either to himself appear before the Court or make any application about his absence from Court. On the other hand, I find that on the face of it the bail application appears to have been substituted for various other reasons i. e. The stamp fixed on this petition is not punched nor initialled by the Registry Office of this Court. Moreover, the two medical certificates alleged to have been filed then do not disclose the details of Amanullah's ailment and treatment. It merely states that he was advised bed rest. Learned counsel for the petitioner tried to find support in favour of his submission that Amanullah had brought these facts to the notice of the Court at an earlier stage. Learned counsel referred to the paper sheet which is attached to the memorandum of appeal wherein the addresses of the parties are given. According to him the fact that Amanullah was in the hospital had also been incorporated in it. Surprisingly enough, this document also appears to have been tampered with because the said single line typing in the blank space containing these submissions is much brighter than the rest of the typing on this document. Again, had this fact originally been there, it would have been brought to the notice of the learned Judge who disposed of the bail application. Since there is no order about these facts, it follows that these were incorporated at a later stage in the space where they now exist in a single line typing Which is brighter than the other typing on this page. Again on 19-1-1977 a petition for bail on behalf of four was made without disclosing Amanullah's absence and on 20-1-1977, the same was dismissed in lirnine. Third bail petition in this case was also made on behalf of all convicts on 1- 3-1977 by another counsel and there was no disclosure of Amanullah's absence or illness. On 13-3- 1977, this petition was also dismissed.
4. For the reasons mentioned above and the petitioners conduct by not disclosing the fact about his absence in the two bail applications filed later, I am of the view that the first bail application dated 13-12-1977 was substituted for the original application which did not contain the facts relating to Amanullah because had they been there, some orders would have been passed about him. It appears that Amanullah not only remained a fugitive from law but also arranged the tampering of the record of this case for which the Registrar of this Court will hold an enquiry and fix the responsibility of the officials who connived with the petitioner. After the enquiry, proper action be taken against all concerned.
5. It appears that in March, 1977, Ahmad, Farid and Noor Muhammad the three convicts went up in Special Leave to Appeal before the Supreme Court against the order dated 8-3-1977, the same was dismissed on 19th May, 1977 with the direction for an early disposal of the appeal. Thereafter, the appeal came up for hearing on 14-6-1978 for the first time. Since the parties changed their counsel, the appeal could not be taken up. On 6-10-1979 no one appeared ' on behalf of the appellants, the learned Judge made the observation that the appellants were admitted to District Jail, Sargodha, to serve the sentence, therefore, the of was directed to contact the Superintendent Jail, Sargodha, on telephone to ascertain their present whereabouts. The same day, Superintendent Criminal reported that the appellants had been transferred to District Jail, Jhang, on 12th September, 1977.
The same day, Mr. Nazir Ahmad Shami, Advocate, who was no longer appellant's counsel appeared and made a statement that the appellants were released under the law relating to Reclamation of Prisoners. Mr. Shami, Advocate, who was no longer the counsel in the case appears to have been sent for by the Court for making inquiries regarding the whereabouts of the appellants. However, the office was also directed to report. On 8-10-1979, the office reported that the three appellants were released on parole by the Assistant Director, Reclamation and Probation Department on 31- 12-1977. Notices to the appellants were issued for the hearing of their appeal. On 5-11-1979, when the appeal came up for hearing, an explanation of the Deputy Registrar (Judicial) was called for making report against the official concerned for not issuing notices. On 6-11-1979 none appeared for the appellants and after dealing with the explanation of the dealing clerk, the appeal was fixed for 9-12-1979 with the direction that notices be sent to the appellants through the S. P., Sargodha, under registered cover asking him' to make arrangements for personal service of the appellants.
The same were not received back after service in time. Summons were again sent for 15-1-1980. In the meanwhile earlier notices were received back after service of all the four convicts. Appellants including Amanullah were again served for 15-1-1980 but the office did not fix the appeal. Although, Mr. Maqbool Elahi Malik, Advocate, filed a power of attorney on behalf of the three convicts but on ;5-6-1980, he made an application on behalf of all convicts including Amanullah under section 561-A read with section 426, Cr. P. C. For suspension of the operation of the impugned judgment to the extent that the fine may not be realised till the disposal of the appeal. By this time as stated earlier, three convicts had already been released on parole but there was no such order regarding Amanullah, petitioner. Thereafter, the learned Judge on 12-7-1980 disposed of the appeal and it is evident that it was not brought to his notice even then that Amanullah had never surrendered to custody. Had this fact been brought to the notice of the learned Judge, the matter would have been different in so far as Amanullah was concerned, for the simple reason that he had not served a day's sentence after conviction and was also not on parole like the others. However, it may be mentioned here that all convicts including Amanullah petitioner paid the fine and even a that stage, it was not brought to the notice of the Court that Amanullah had not surrendered to custody.
Amanullah petitioner got away without disclosing that he had not served a day's sentence after conviction. The Matter was agitated by one of his enemies with whom he had some land dispute and aft local Magistrate summoned him to serve out the sentence because he had not undergone the sentence. He was thus taken into custody in August, 1984. Hence this petition.
6. In view of the aforementioned history of this case and the circumstances which have been detailed by me in this judgment, I have come to the conclusion that Amanullah has not only absented himself without reason but has even tampered with the record of this case. Learned Advocate-General who appeared on behalf of the State contended that on the principle laid down in Chan Shah v. Crown (1) and Hayat Bakhsh and others v. The State (2), Amanullah, petitioner is a fugitive from law and had no right of audience. A perusal of the judgment passed by this Court on 12-7-1980 in the appeal reveals that the joint appeal of all four convicts stood disposed of on merits. Amanullah who has been a fugitive from law cannot turn around and say that he has not been heard in the appeal. It is noteworthy that on two occasions, notices were served on him for hearing of the appeal but he deliberately did not appear presumably for fear of arrest. Under these circumstances, there is no force D in this application. His appeal having been dismissed, he shall have to suffer the sentence awarded to him. This petition is dismissed.
(1) PLD 1956 SC 43 (2) PLD 1981 SC 265