' KHALIL-UR-REHMAN RAMDAY, J.--- Sahib Dad' appellant was tried, in absentia, by the learned Special Court No,11 at Sargodha, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, for having allegedly committed an offence punishable under section 4/5 of the Explosive Substances Act, 1908. He was found guilty of the charge and upon his conviction under section 4 of the said Act of 1908, he was punished to suffer 14 years' R.I. The whole of his immovable property had also been directed to be confiscated to the State as envisaged by section 5-A of the said Act.
2. Sahib Dad convict has filed the present appeal and calls in question the above-noticed conviction and sentences recorded against him.
3. It was through F.I.R. No,65, dated 23-6-1985, Police Station Kundian of District Mianwali that the appellant was accused of the commission of an offence punishable as abovementioned. The trial against him was entrusted to the learned Special Court where the appellant appeared on 12-5- 1990 but absented himself thereafter. Warrants were issued for his arrest which, however, remained unexecuted on account of the non-availability of the appellant. The proceedings were thereafter initiated against him under section 87 of the Cr.P.C. And a proclamation was then published in three national daily newspapers for his appearance before the learned trial Court which, however, also did not yield any fruit.
4. Faced with this situation, the learned trial Court through its order, dated 21-8-1990, directed that the appellant be tried in his absence as envisaged by the provisions of section 5-A(4) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The learned Special Court thereafter proceeded to try the appellant in his absence and found him guilty; convicted him and punished him as noticed above.
5. The validity of trials of accused persons, in absentia, came up before this Court for examination arising out of a similar provision contained in the Special Courts for Speedy Trials Ordinance (II of 1987). In a judgment delivered by this Court which is reported as Zia Ullah Khan and others v.
Government of Punjab and others PLD 1989 Lah. 554, it was declared that such-like trials which were held in the absence of the accused persons were ultra vires of Article 10 of the Constitution of Pakistan. The matter was taken before the Supreme Court but this view of the High Court on this issue had not been questioned or interefered with by the Supreme Court as is evident from Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602.
6. Consequently, the present trial against the appellant, which had been held in his absence, cannot be sustained on account of this legal infirmity. The result is that the trial in question held against the appellant together with the impugned conviction and sentences recorded against him by the learned Special Court, through its judgment dated 2-10-1990, are set aside.
7. Since the appellant has now surrendered to the process of law, the case is remanded back to the learned trial Court for a fresh trial in accordance with law.
5. This appeal stands disposed of in the above terms.