' MIAN NAZIR AKHTAR, J.--- The appellant was tried (in absentia) alongwith others under the charge of having committed murder of Sadiq Ganji deceased by the learned Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. The trial Court vide its judgment, dated 13-3-1991 found the appellant to be guilty of offence under sections 120-D7304 of the P.P.C. And sentenced him to life imprisonment with a fine of Rs,20,000 and in default of payment to undergo R.I. For six months. It may be mentioned that Haq Nawaz co-accused was sentenced to death and his appeal (Criminal Appeal No,275 of 1991) was dismissed' by this Court vide judgment, dated 12-3-1999. The appeal (Criminal Appeal No,313 of 1991) filed by the five co-accused was accepted and the appellants were acquitted.
2. The appellants' learned counsel urged that trial in absentia is totally illegal as held in the case of Zia Ullah Khan and others v. Government of the Punjab PLD 1989 Lah. 554 and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 that the role assigned to the appellant is similar to that of Zaki Ullah whose appeal (Criminal Appeal No,313 of 1991) was accepted by this Court and the convicts were acquitted vide judgment, dated 12-3- 1999; that the appellant also deserves acquittal because the prosecution cannot advance its case beyond the case of Zaki Ullah etc. Who were acquitted. As regard the question of remand of the case to the trial Court, the learned counsel submits that it will be futile exercise because evidence regarding identification parade and judicial confession of the accused were not held to be reliable in the criminal appeal filed by Zaki Ullah etc. And that the judgment passed by this Court was upheld by the Honourable Supreme Court of Pakistan in the case of Haq Nawaz v. The State 1999 PCr.LJ 1381. On merits, he submits that the appellant was merely shown to be present when Haq Nawaz etc. Were planning to kill Sadiq Ganji deceased and that he cannot be held guilty of conspiracy to kill Sadiq Ganji deceased.
3. Earlier when arguments were heard in this case on 5-7-2001, the learned Advocate-General appeared on behalf of the State and candidly conceded that trial in absentia is coram non judicce.
He further stated that he had no objection to the acceptance of the appeal and setting aside of the appellant's conviction and sentence. He, however, prayed that the case be remanded to the trial Court for a fresh trial on merit in accordance with the law. He had referred the following judgments in support of his contentions:--
(1) Sahib Dad v. The State 1993 PCr.LJ 1778,
(2) Karamat Ali v. The State 1998 PCr.LJ 1779,
(3) Zia Ullah Khan and others v. Government of the Punjab and others PLD 1989 Lah.
554.
(4) Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602,
(5) Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445, and
(6) Muhammad Ashfaque etc. v. The State 1998 PCr.LJ 1486.
4. Today, the learned counsel for the State did not raise any argument to oppose the appellant's prayer for setting aside his conviction and sentence and remand of the case for a fresh trial.
5. Section 5-A of the Suppression of the Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as an Act) trial in absentia is permissible.
Subsection (4) of section 5-A of the Act provides as under:-- "(4) An accused person may be tried in his absence, if the Special Court, after such inquiry as it deem fit, is satisfied that-
(a) such absence is deliberate and brought about with a view to impending the course of justice, or
(b) the behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court: ' Provided that, in a case referred to in clause (a) the accused persons shall not be tried unless a proclamation in accordance with the provisions of section 87 of the Code has been published in respect of him which proceedings shall be completed by the Special Court within seven days, and until the proclamation has been published in at least three national daily newspapers out of which two shall be in the Urdu language: ' Provided further, that the Special Court shall proceed with the trial after taking necessary steps to appoint an Advocate to defend the accused person who is not before the Court."
' A similar provision was embodied in section 8 of the Special Courts for Speedy Trial Act (XV of 1987). Its legality came up for consideration before this Court in the case of Zia Ullah Khan v.
Government of the Punjab PLD 1989 Lah.
554. After elaborate discussion, the Court held that the provisions of section 8 of the Act is so far as they permit the trial of an accused person in absentia, are violative of Article 10 of the Constitution of Pakistan. This judgment was upheld by the Honourable Supreme Court in the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602. Under the Anti-Terrorism Act (XXVII of 1997), trial in absentia was allowed by virtue of section 19(10)(b) of the Act. It was also declared to be violative of Article 10 of the Constitution of Pakistan in the case of Mehram Ali and others (supra).
6. So far as the legality of section 5-A of the Act is concerned, it was declared to be illegal and violative of Article 10 of the Constitution of Pakistan by my learned brother Munir A. Sheikh, J. Vide his judgment, dated 21-1-1996 passed in Writ Petition No,18417 of 1995. While examining the vires of section 5-A of the Act, the learned Judge referred to the judgments of the High Court and Supreme Court in the case of Zia Ullah Khan (supra) and held in para. 9 of the judgment as under:-- "9. Following the rule laid own in the said reported judgments, it is, therefore, held that the provisions of section 5-A of the Suppression of Terrorist Activities (Special Courts) Act,1975 so far as they permit holding of trial of an accused person in absentia and appointment of a counsel on his behalf to defend him in his absence is a void law being violative of Article 10 of the Constitution."
7. Therefore, this appeal is accepted, the appellants' conviction and sentence is set aside and the case is remanded to the trial Court for a fresh trial in accordance with the law. The appellant's learned counsel also prayed that the appellant may be allowed bail during the pendency of the trial. For this purpose, the appellant should file a bail petition before the trial Court in the first instance. The appeal is allowed with the above order.