' AHMED KHAN LASHARI, J.--- By this Criminal Appeal No,179 of 2000, conviction and sentence awarded by Special Judge, S.T.A. Mussakhel at Loralai, dated 20-5-2000 was challenged, whereby the appellant was awarded death penalty in absentia while Constitutional Petition No,721 of 2000 was filed against the order, dated 3-10-2000 passed by Special Judge, S.T.A. Mussakhel at Loralai, whereby application filed by the petitioner under section 5-A(7) of Suppression of Terrorist Activities Act, 1975, seeking for fresh trial was dismissed.
' Briefly stated facts of the case as per complaint, dated 25-9-1997 filed with A.C. Mussakhel by Malik Nazak Malezai (P.W.6) while Maulvi Saleh Muhammad and Dr. Rahimuddin were going towards the Lundi, Samiullah and Tamour Shah came from Mussakhel Bazar side on a Muzda Truck, and started firing on them, due to which Dr. Rahimuddin died on the spot while Maulvi Saleh Muhammad sustained injuries on his body. Record reveals on 12-11-1997 Nazimuddin (P.W.1) also filed a complaint with A.C. Mussakhel where he also nominated Muhammad Noor, Amanullah, Zahir Shah, Attaullah and one Qalam for committing of the alleged offence registered under sections 302/324-147/148/149/109, P.P.C. Stating therein that Samiullah and Tamoor Shah while coming on a truck being driven by Qalam made firing at Maulvi Saleh Muhammad and Dr. Rahimuddin on the instigation of Attaullah, Zahir Shah, Muhammad Noor and Amanullah. P.W.7 Said Muhammad, Naib-Tehsildar, Mussakhel started investigation of the case, and recorded the statements of the witnesses under section 161, Cr.P.C., since nominated accused persons could not be arrested, therefore, he submitted uncomplete challan before the Special Judge, S.T.A., Mussakhel at Loralai for the purpose of trial in absentia. The nominated accused persons were declared absconders and 7 witnesses were examined. P.W.1 Nizamuddin, the complainant, P.W.2 is Hassan Khan stated to be the eye-witness of the incident, P.W.3 Muhammad Amin also alleged to be the witness of the occurrence, P.W.4 Maulvi Saleh Muhammad injured, P.W.5 Mehtab Shah, Naib-Tehsildar, Mussakhel who partly investigated the case. P.W.6 Malik Nazak is also complainant, who filed the subsequent complaint, P.W.7 Said Muhammad, Naib-Tehsildar, who recorded the statements of witnesses under section 161, Cr.P.C., while the case was fixed for announcement of judgment, absconding accused Attaullah voluntarily appeared before the Court, and then after Muhammad Noor, surrendered himself before the Court, and on their application, the prosecution witnesses P.W.1 Nizamuddin, P.W.3 Muhammad Amin, P.W.5 Mehtab Shah, and P.W.7 Said Muhammad were recalled and re-examined. On 20-5-2000 accused Asmatullah, Muhammad Noor, and Amanullah were acquitted of the charge, while, the appellant was convicted and sentenced to death in absentia and case against absconding accused Qalam and Samiullah were ordered to be kept in dormant, the appellant got knowledge of the conviction and sentence awarded to him by S.T.A., Mussakhel, at Multan where he was doing his business. He came to Loralai and obtained the copy of judgment and then after he was arrested. The appellant submitted an application under section 5-A(7) of the Suppression of Terrorist Activities Act, 1975 (hereinafter called as Act of 1975) before the trial Court on 10-7-2000, for setting aside his conviction and holding of fresh trial of the case on merits by allowing him an opportunity of cross-examination to the prosecution witnesses. After hearing the prosecution the Special Judge, S.T.A., Mussakhel at Loralai dismissed the application on 3-10- 2000 which was made impugned before this Court by filing of instant petition while against conviction order, dated 20-5-2000, criminal appeal was preferred.
3. Mr. Ehsan-ul-Haq, Advocate, learned counsel for appellant/petitioner argued that the application under section 5-A(7) of the Act of 1975, was filed within stipulated period of 60 days from passing of the impugned judgment, whereby death penalty was awarded and reasons in detail were explained that he had no knowledge of the proceedings initiated against him in absentia, as soon as he came to know about his conviction, rushed and obtained the copy of judgment, and filed the application but the learned trial Court has not considered the facts mentioned therein while dismissing the application. He further argued that the learned trial Court has not complied with the provisions of section 87, Cr.P.C. Regarding to proclamation of appellant, therefore, the judgment, dated 20-5-2000 and order subsequently passed on the application, dated 3-10-2000 are without jurisdiction. He contended that if order impugned, dated 20-5-2000, is set aside he would not press his appeal on merits filed against conviction. He relied on the following case-laws:--
(1) PLD 1984 Lah. 554, (2) 1995 M LD 1526 and (3) 1994 M LD 2053.
4. Mr. Ikhtiar Khan Marghzani, Assistant Advocate-General appeared on behalf of State and argued that the learned trial Court is competent to pass any order on the application, if he does not feel satisfy himself with the reasons mentioned therein.
5. We have heard arguments of the learned counsel for the parties and perused the record minutely. The allegations against the petitioner/appellant was that on 25-9-1997 he alongwith other acquitted co-accused and absconder accused persons made firing on Maulvi Saleh Muhammad and Dr. Rahimuddin on account of which Dr. Rahimuddin died on spot, while Maulvi Saleh Muhammad sustained injuries. The petitioner/appellant remained absconder and in his absentia, case was tried and death penalty was awarded on 20-5-2000. After having knowledge of the conviction and sentence petitioner/appellant approached the trial Court, by filing an application as provided under section 5-A(7) of the Act of 1975 on 10-7-2000, wherein he explained reasons for his non-appearance to believe the Court that for last six months, before the incident, he had migrated to Multan where he was doing his business, some ten days back he came to know about the conviction and sentence awarded to him. He neither remained absconder nor he had concealed himself but due to reasons stated above. The publication made in daily Mashriq Quetta, not being supplied country wide made in accordance with law. He prayed after setting aside of the conviction/sentence, and be tried afresh in accordance with law. The learned trial Court while rejecting the application concluded that trial was held after due proclamation and accordingly a counsel was appointed for absconding accused. Since three brothers of appellant/petitioner faced trial and were acquitted vide judgment, dated 20-5-2000 whereby the appellant/petitioner was awarded death sentence, therefore, his plea having no knowledge was denied. The application was accompanied with an affidavit and the contents were verified on oath. The learned trial Court while dismissing the application have not taken into consideration the affidavit made in support of application. It is well-settled law one should not be deprived of his defence being his legal and legitimate right specially when execution of life is involved. The conclusion of learned trial Court that the contents are not true does not deprive of the petitioner from his right. Since petitioner has surrendered himself within the prescribed period of 60 days then Court is bound to apply his mind on the facts made in the application with care and caution whether narrated facts could be reasonable and plausible, the slightest favourable conclusion arrived at must be extended towards petitioner who has thrown himself at the mercy of Court. It is golden principle of law that one should not be condemned unheard for fair and equal dispensation of justice, Courts always appreciate and encourage decision of the cases on merits after providing opportunity of hearing to the parties for fairplay and just conclusion. The application so filed before the trial Court wherein plea taken in the application for his non-appearance before the Court seems to be believable even death sentence awarded by the trial Court would be unnatural to be executed without giving opportunity of hearing to the petitioner or without knowing the real facts and defence plea from the mouth of convict. The findings of the trial Court that the requirements of law has been fulfilled regarding to proclamation and appointment of a counsel for absconder on State expenses is of no ground for refusal and dismissal of application. We have also perused the referred reported case- laws and the judgment reported in Muhammad Kamal v. The State 1998 PCr.LJ 1781 and Khalid Mehmood v. The State 1999 YLR 2287 whereby the conviction and sentence awarded to the accused in absentia were set aside and case was remanded for trial on merit.
In view of what has been discussed above, we are, inclined to set aside the judgment, dated 20-5- 2000 passed by learned Special Judge, S.T.A., Loralai whereby death penalty was awarded to the appellant in absentia and order, dated 3-10-2000 passed on the application filed under section 5- A(7) of Act, 1975 seeking fresh trial of the case. Resultantly the Constitutional petition is accepted and criminal appeal is dismissed as not pressed, and case is remanded to learned Special Judge, S.T.A., Loralai for trial afresh on merit after hearing the petitioner.