MUHAMMAD NASEEM CHAUDHRI, J.- This appeal is directed against the judgment dated 15.11.1992 passed by the learned Judge Special Court No. II Suppression of Terrorist Activities, Sargodha Division, Sargodha whereby he convicted Rab Nawaz appellant son of Haq Nawaz caste Pathan resident of village Burzi Police Station Kamar Mashani District Mianwali and sentenced him to death and to fine of Rs. 50,000/- or in default of its payment to undergo R.I. For a period of two years under section 302 Pakistan Penal Code. Out of the fine, if recovered, a sum of Rs. 40,000/- was directed to be paid to the heirs of Zafar Hussain deceased.
2. The facts giving rise to this appeal are contained in FIR Ex.PC/1 got recorded by Muhammad Sarwar Constable PW. Who alleged that Rab Nawaz appellant and his co-accused Muhammad Nawaz (since killed) committed the intentional murder of Zafar Hussain constable on 25.6.1992 at 10.00 p.m. Rab Nawaz appellant could not be arrested and was tried in absentia who was provided the services of Syed Mukhtar Ali Shah, Advocate Sargodha. Rab Nawaz appellant was charged under section 302 Pakistan Penal Code in absentia. The prosecution evidence was recorded in absentia. His statement under section 342 of the Code of Criminal Procedure through his learned counsel Syed Mukhtar Ali Shah was recorded in absentia and he was convicted in absentia on 15.11.1992 as narrated above.
3. Rab Nawaz appellant was arrested on 14.12.1992 who has preferred this appeal against conviction in absentia which has been resisted by the State.
4. We have heard the learned counsel for Rab Nawaz appellant as well as the learned State counsel and gone through the record before us. On the dictum enunciated in Government of the Punjab through Secretary. Home Department Versus Zia Ullah Khan and 2 others (1992 SCM R 602) the assertion and argument of the learned counsel for Rab Nawaz appellant is that the appellant 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 counsel for the State 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. The limited controversy to be resolved 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 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 Rab Nawaz 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.
6. For what has been said above, we accept this appeal, set aside the sentence and convict ion 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.
7. Rab Nawaz appellant is stated to be in jail and shall be treated as an under-trial prisoner.
8. A copy of this judgment shall be sent to the learned Judge, Special Court for Suppression of Terrorist Activities, Sargodha Division, Sargodha which shall be placed before him on 27.4.1998 so that after collecting the relevant record and summoning Rab Nawaz accused from the concerned jail the trial is started and concluded in accordance with law.