' SALAHUDDIN MIRZA, J.-- Accused Sher Muhammad, who was II Officer in the United Bank Ltd. During 1980 and 1981, is alleged to have withdrawn certain amounts from various accounts of the clients of the bank by issuing forge cheque-books in the name of the account-holders or the strength of paying-in-slips bearing forged signatures of the account-holders and then issuing cheques, again bearing the forged signatures of the account-holder. He is also accused of having misappropriated the amounts deposited by some other account-holders. Paying-in-slips were duly signed by him and their counter-foils returned to the account-holders but the amounts were neither entered in the relevant register nor credited to the respective accounts.
2. The record shows that in connection with these frauds, two persons were challenged together the appellant and Muhammad Arbab Khoso, Manager of the Bank, and on 23-5-1985 the Court ordered trial in absentia in respect of both the accused. Subsequently on 23-1-1986 the Court ordered bifurcation of the cases of the two accused and on 28-1-1986 separate charge was framed against the present appellant and non-bailable warrants were ordered to be issued. These orders were repeated on 7th July, 1986. However, on 18-11-1985, when the appellant and the Bank Manager Mr. Khoso were still being jointly tried, Mr. Habibullah Jatoi, Advocate appeared before the Court and stated at the Bar that he was telephonically instructed by the appellant to appear on his behalf in the Court and say that the appellant was at the moment admitted in hospital and was ready to surrender before the Court on the next date. Mr. Jatoi then promised to file Vakalatnama on the next date and gave the Court to understand that the appellant would also surrender on the next date. The hearing was then adjourned to 23-11-1985 but on this date the appellant did not surrender to the Court and Mr. Jatoi also did not appear before the Court nor an Vakalatnama from the appellant in the name of Mr. Jatoi was filed. The diary of 23-11-1985 shows that the entire proceedings of 18-11-1985 (the appearance of Mr. Jatoi, Advocate, his statement that the appellant was in hospital and his undertaking to file Vakalatnama and to produce the appellant on the next date) were ignored on 2311-1985 and proceedings against the appellant were continued in absentia. These proceedings in absentia appear to have been taken quite sometime before on the strength of the statement of Police Constable Rehmat Khan which was recorded on 23-5-1985. In this statement Police Constable Rehmat Khan had stated that the appellant had gone underground and was not traceable.
3. The contention of the appellant is that the police constable who was deputed to arrest the appellant on the basis of non-bailable warrants issued on the strength of Court orders dated 28-1- 1986 and 7-7-1986 should have been examined and necessary steps should have been taken to make sure that the appellant was untraceable and could not be found and should have been declared an absconder but nothing of the sort was done by the learned trial Court which ignored its own orders of 28-1-1986 and 7-7-1986 and, on 12-8-1986, proceeded as if the appellant had already been declared an absconder.
' Counsel of the appellant and A.A.-G. For the State have been heard and the record has been examined.
4. Contention raised by learned counsel for the appellant seems to have force. During the course of the joint trial of the appellant and Muhammad Arbab Khoso, Mr. Habibullah M. Jatoi appeared before the learned trial Court on 1811-1985 and undertake to. File Vakalatnama on behalf of the appellant and to surrender the appellant on the next date, stating that the appellant was confined in hospital as an indoor patient and had sent telephonic message to him (Mr. Jatoi) on the strength of which he was appearing before the Court. It was pointed out by learned counsel for the appellant that Mr. Habibullah M. Jatoi had no locus standi to appear for the appellant on 18-11-1985 and that the appellant was not bound by, or discriminated against for, what Mr. Jatoi stated before the Court on this date. He referred us to section 22 of the Legal Practitioners and Bar Councils Act, 1973, which enjoins that no Advocate can appear for an accused without filing Vakalatnama. An exception is made under the proviso to the said section 22 whereby an accused, who is in custody, may be represented by an Advocate, without filing Vakalatnama, if he undertakes to file the same.
It was pointed out that the appellant was not in custody and, as such, the proviso to section 22 was not attracted and, therefore, Mr. Habibullah M. Jatoi, Advocate, had no locus standi to appear on behalf of the appellant on 18-11-1985 and, as such, no adverse inference can be drawn against the appellant if he did not appear before the learned trial Court on the next date. Learned AA.-G. Could not rebut this argument. We have gone through section 22 of the Legal Practitioners and Bar Councils Act, 1973 and we are inclined to agree with learned counsel of the appellant on this point.
Moreover, we are surprised to note that when the case came up for hearing on the next date after 18-11-1985 and it was found that neither that appellant nor Mr. Habibullah M. Jatoi, Advocate, was present, no effort was made to send for the latter and assess the exact position and the proceedings of 18-11-1985 were totally ignored. We are of the view that in view of the statement of aP.C. Rehmat Khan, process-server which was recorded on 23-5-1985, could no more be acted upon, especially because the learned trial Court subsequently ordered the issuance of non- bailable warrants of the appellant on 28-1-1986 and 7-7-1986.
5. When the case proceeded on 12-8-1986, which was the next date after 7-7-1986, the appellant was absent and his absence was noted but the diary of 12-8-1986 is silent as to whether non- bailable warrants were served or unserved and if they were unserved, what was the reason, therefor and whether the process-server appeared in the Court on that day. Apparently, the non- bailable warrants remained unserved, the process-server did not appear in the Court on 12-8-1986 and the learned trial Court took no steps to determine that the appellant was avoiding service or could not be served and should, therefore, be declared an absconder and proceeded against in absentia, we were, in this connection, referred to the case of Muhammad Arab Khoso v. The State 1987 P Cr. L J 1614 in which it is held that when no serious effort was made for the arrest of the accused nor process-server was examined to prove that the accused deliberately avoided his arrest, there was hardly any reason to proceed against the accused in absentia and for this reason conviction of the accused was set aside and the case was remanded for retrial. Incidentally, this authority is in respect of the case of co-accused Muhammad Arbab Khoso who was also, after the bifurcation of his case from the case of the appellant, was proceeded against in a similar manner.
The rule of law laid down in this authority is applicable in to the facts of the present case.
6. Under the circumstances, this appeal is accepted, conviction and sentence recorded against the appellant vide impugned judgment dated 30th September, 1986, are set aside and the case is remanded back to the trial Court for trial in accordance with law. The appellant is on bail granted by this Court and it, would be open to him to apply for bail afresh before the learned trial Court.