IFTIKHAR MUHAMMAD CHAUDHRY, petition has been filed for leave to appeal against the judgment dated 11th November, 2002 passed by High Court of Balochistan, Quetta whereby conviction/sentence of 2 years' R.I. Awarded to petitioner by the trial Court, under section 21-L of the Anti-Terrorism Act, 1997 [hereinafter referred to as the "the Act, 1997"] for remaining absconder was kept intact. '
2. Precisely stating the facts of the case necessary for disposal of petition filed by Haji Muhammad son of Abdullah Jan are that vide F.I.R. No,3 of 2002 dated 10th January, 2002 registered at Police Station Quaid-e-Abad, Quetta under sections 302/365-A/120-B/109/34 P.P.C. Read with sections 7- A and 21-L of Act, 1997, petitioner was involved in the commission of offence at a later stage. Initially proceedings including under section 87, Cr.P.C. Have been conducted by the Sessions Judge but later on case was transferred on the file of Special Judge Anti-Terrorism Court, Quetta. As, according to prosecution version petitioner intentionally absconded himself, therefore, after observing legal provisions, he was convicted/sentenced on 18th August, 2002. On coming to know about his conviction he voluntarily surrendered before the Court on 4th September,2002.
Accordingly he was taken into custody. Simultaneously, he has also moved an application under section 19(12) of the Act, 1997. This application was partially allowed vide order dated 9th September, 2002 whereby learned trial Court set aside the conviction of the petitioner and directed the prosecution to start investigation and submit challan against him. However in the concluding para of the order it was observed that sentence awarded to him under section 21-L of the Act, 1997 is kept intact. For sake of convenience said order is reproduced hereinbelow:-- "Accused Haji Muhammad is present in custody alongwith his counsel Mr.Naeem Akhtar, Advocate.
P.P. Is present. Defence counsel submitted that convict/applicant is owner of Bandari International Company and permanent resident of Chaman, but he was not aware about the pendency of matter before this Court and no notice or summon was served upon him. Further stated that convict/applicant often remains out of country in connection of his business, in this respect he produced the Passport, Air Ticket, Boarding Card, etc. Of applicant. Further submitted that convict came to know about his conviction on 1-9-2002, when he reached Quetta from Dubai and surrendered before the Court. On the other hand Public Prosecutor strongly opposed the application and stated that the instant case was published country-wide in all National Newspapers, being a very important case in this Province and accused deliberately waiting for the result of the case. Taking into consideration submission made by the parties with reference to section 19(12) of Anti-Terrorism Act, 1997 which states: If within 60 days from the date of his conviction any person tried under subsection (10) appears voluritarily or is apprehended and brought before the (Anti-Terrorism Court) and proved to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceeding against him, the (Anti-Terrorism Court) shall set aside his conviction and proceed to trying in accordance with law for the offence with which he is charged.' Taking into consideration the Passport, Air. Ticket and Boarding Card of the applicant, I am inclined to set aside the conviction of applicant dated 28-8-2002 in A.T.C. Case No,33 of 2002, Crime No,3 of 2002 Quaidabad Police Station under section 19(12) of Anti-Terrorism Act, 1997. The prosecution is directed to start investigation and submit challan against applicant/accused within prescribed period allowed under Cr.P.C. Accused namely Haji Muhammad son of Abdullah Jan was convicted under section 21-L of. Anti- Terrorism (Amendment) Ordinance, 2001 by this Court, the same is intact so far To come up for submission of challan and other proceedings for 16-9-2002."
3. The above order was challenged in appeal before the High Court which has been dismissed by means of impugned order. As such instant petition has been tiled.
4. Learned counsel for petitioner contended that:-
(a) The petitioner was out of country during the period when the publications were made against him by the Sessions judge before the transfer of the case on the file of Special Judge Anti-Terrorism Court and this fact was established by him by producing his Passport. Air Ticket and Boarding Card. Learned trial Court accepted the plea of petitioner as a result whereof his conviction was set aside but without any legal justification it kept the sentence of 2 years' R.I. Intact.
(b) Petitioner as per the statement of learned counsel has been acquitted in the main case under sections 302/365-A/120-B/109/34, P.P.C. Read with sections 7-A and 21-L of Act, 1997 vide order dated 17th October, 2002 passed by learned Special Judge Anti-Terrorism Court, therefore, after his acquittal in the main case he cannot be sentenced on account of his so-called absconsion because it has been proved that he was not involved in the main case, therefore, awarding him sentence under section 21-L of the Act, .1997 is unwarranted.
5. On the other hand Mr. Salahuddin Mengal, learned Advocate Generate, Balochistan contended that petitioner intentionally concealed himself after the commission of the offence as it has been established by the prosecution by producing overwhelming evidence on record including publication in three newspapers, statement of Esa Jan 1P/Processor Server as well as from the conduct of petitioner-accused, therefore, the sentence awarded to the petitioner has rightly been kept intact by the trial Court as well as High Court by means of impugned order.
6. We have heard learned counsel for the parties and have also carefully gone through the record so made available before us. In this behalf it has been observed that under section 21-L of the Act, 1997 the accused can be convicted/sentenced if he absconds and avoids arrest or evades appearance before, any inquiry, investigation or Court proceedings< or conceals himself and obstructs the course of justice but before awarding him punishment the Court is required to satisfy itself according to section 19(10) of the Act, 1997 that such absence of the accused is deliberate.
Undoubtedly, in instant case initially the Court, seized with the :natter, was satisfied that absence of the accused was deliberate, as such punishment was recorded against him vide order dated 28th August, 2002. But later on when the petitioner invoked the jurisdiction of the Court seized with the matter under section 19(12)of the Act, 1997, successfully satisfied it on the basis of the documentary evidence i,e, Passport, Air Ticket and Boarding Card that his abscission was not deliberate, the Court accepted his plea and set aside the conviction, as a result whereof he was put to face trial of the main case. We failed to understand the wisdom of the learned trial Court in directing to keep the sentence intact after recording its satisfaction about non-appearance of the accused because the documentary evidence so produced by him were found sufficient to conclude that his absence was not deliberate, therefore, keeping the sentence to remain intact was unwarranted and after having set aside the conviction trial Court may have not kept intact the sentence because conviction in a crime is followed by a sentence and if the conviction is not sustainable then the sentence also cannot be allowed to remain intact, otherwise presumption would be that the plea put forward by the petitioner for not attending the Court was not found to be acceptable. It may be noted that in such-like cases where an accused has been convicted/sentenced in absentia, the Court is bound to follow the relevant provisions of law strictly because conviction/sentence has been recorded without providing him opportunity of hearing and believing the statement of prosecution. It is also important to note that as far .As the main case falling within the mischief of sections 302/365-A/120-B/109/34, P.P.C. Read with sections 7-A and 21-L of the Act, 1997 is concerned, the prosecution failed to establish accusation against the petitioner, therefore, inference can conveniently be drawn that he was not involved in the commission of offence, as such recording conviction in his absence in terms of section 21-L of the Act, 1997 was also illegal.
Thus for the foregoing reasons, instant petition is converted into appeal and allowed. As a result whereof, impugned judgment dated 11th November. 2002 is set aside. Petitioner is ordered to be released forthwith if not required in any other case.