' This appeal is directed against the judgment, dated 16-6-1993 passed by the Presiding Officer, Special Court No,11 Suppression of Terrorist Activities, Sargodha Division whereby he convicted and sentenced in absentia Khalid Mahmood (Khalid Iqbal Khan) appellant son of Alam Khan caste Pathan resident of village (Bhariunwala) Samandwala Police Station Mochh District Mianwali to undergo R.I. f6r a period of seven years and to fine of Rs,50,000 or in default of its payment to further R.I. For a period of one year under section, 392 of Pakistan Penal Code.
2. The facts giving rise to this appeal are that on the basis of the registration of F.I.R. No,345, dated 24-8-1992 at Police Station City Mianwali Khalid Mahmood appellant along with Sardar Khan co- convict was charged under section 392- of Pakistan Penal Code who was tried in absentia and was convicted and sentenced in absentia on 16-6-1993 as narrated above. The appellant was arrested on 17-9-1997 who has preferred this appeal against his conviction which has been resisted by the State.
3. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate- General for the State. On the dictum of the Supreme Court of Pakistan enunciated in the ruling printed as Government of the Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCM R 602) the assertion and argument of the learned counsel for Khalid Mahmood appellant is that he has been tried and convicted in absentia, that the impugned judgment to his extent is coram non judice and that the impugned judgment cannot be sustained thereof. He continued that the impugned judgment being void. And illegal, the trial shall have to be held afresh so that he is able to defend himself in accordance with law. Learned Assistant Advocate-General has laid the emphasis that the trial could be held in the absence of the appellant and that he has rightly been convicted ,in absentia.
5. We are of the view that if any accused becomes a fugitive of law the trial can continue to the extent of the accused who have been arrested and have been directed to defend themselves.
6. The limited controversy to the resoled is as to whether the trial against the absconding accused can be conducted after the submission of the challan in his absence and can he be convicted in absentia? We are fortified by the aforesaid judgment of the Supreme Court of Pakistan and seeking the advice and guidance from the same, which is binding on us, we express that the holding of the trial .In absentia without providing the opportunity of personal defence to an accused who even if becomes a fugitive of law is against the canons of justice and against the principle that nobody can be condemned unheard. This is the crux of the matter to make us hold that the appellant has rightly contended that the trial against him has not been held and concluded in accordance with law and that the judgment holding him criminally liable in the matter is illegal, void and inoperative to his extent.
7. For what has been said above, we accept this appeal, set aside the sentence and conviction to his extent recorded in the impugned judgment and remand the matter to the learned Trial Court for holding the trial afresh in accordance with law in his presence.
8. Khalid Mahmood appellant is stated to be in jail and shall be treated as an under-trial prisoner.
9. Under the Notification, dated 26-9-1996 the learned Sessions Judge/learned Additional Sessions Judge-I, Mianwali are the Special Judges under the Suppression of Terrorist Activities (Special Courts) Act, 1975. We pass the order that the trial shall be held by the learn4 Sessions Judge, Mianwali. The office shall send a copy of this judgment to the learned Sessions Judge, Mianwali for placing the same before him on 4-5-1998 so that after collecting the relevant record and summoning Khalid Mahmood appellant the trial is started.