MUHAMMAD NAWAZ ABBASI, J.--This single judgment proposes to dispose of the above titled three criminal appeals arising out of the judgment dated 19-7-2000 passed by a learned Division Bench of Lahore High Court, Bahawalpur Bench, in Criminal Appeals Nos.28 of 1999 and 32 of 1999 preferred by the appellants in the High Court against their conviction and sentence awarded to them by the Special Court established under Anti-Terrorism Activities Act, 1997 vide judgment dated 11-6-1999 in a case under sections 364/302/392/34, P.P.C.. Read with section 7 of Anti- Terrorism Act, 1997 registered at Police Station, Saddar, Sadiqabad. Leave was 'granted in these appeals vide order dated 13-11-2000 in the following manner-- "Learned counsel appearing for the convict/petitioner submits that there is only one eye-witness and according to law ,testimony of solitary witness cannot form basis for conviction. He also objected to the trial of this case by the Special Court constituted under the Anti-Terrorism Act, 1997.
He also generally criticized evidence of the prosecution which according to him was not confidence-inspiring. The learned counsel appearing in case other two petitions argued that the convict/accused/respondent was liable to death penalty as the record indicated that he is guilty of wanton, brutal and gruesome murder and that too without any justification at all. He also argued that the High Court erred it holding that the act of the accused/respondent was not covered by section 6 of the Anti-Terrorism Act and was. Accordingly, not punishable under section 7 of the said Act as the record indicates that at some stage the High Court had discarded the said plea of the accused/respondent which was not challenged and as such it has become final. It was next pointed out that it was curious to note that those accused who were tried and convicted in absentia by the learned trial Court; and had been awarded death sentence alongwith, other sentences, were also acquitted by the High Court by the impugned judgment. Consequently, we grant leave in all the three petitions in the light of the above submissions and we also direct that notice be issued to acquitted accused; namely, Shafique alias Jaffar Hussain, Iftikhar Ali and Zulfiqar Ali to show cause as to why their acquittal by the High Court should not be set aside. Learned counsel in Petitions Nos.57-L and 459-L of 2000, are directed to implead the acquitted accused as respondents in their respective petitions within seven days."
2. Naeem Akhtar appellant in Criminal Appeal No,524 of 2000 was tried alongwith Iftikhar Ali and Zulfiqar Ali, two real brothers and one Muhammad Shafiq alias Jaffar Hussain for the charges of abduction of Dr.Muhammad Aslam and Dr.Javed Umer from Nashaman Colony, in the area of Police Station, Saddar, Sadiqabad and having taken them forcibly in their car to a lonely place at the bank canal committed murder of Dr. Muhammad Aslam.
The brief facts as contained in the F.I.R., lodged by Muhammad Athar (P.W.10) real brother of Dr.Muhammad Aslam, deceased, are that deceased doctor was posted in Rural Health Centre, Ahmedpur Lamma and was also attached with Yousaf Hospital as a part time private practitioner.
The deceased having purchased a plot in Nashaman Colony intended to construct a house on the said plot and on the fateful day made a programme with the first informant to visit the site at 7 p.m. To discuss the arrangements for the construction of house at the plot. The first informant alongwith Muhammad Tariq and Abdul Basit (P.Ws.) on reaching at the site at about 7-30 p.m.
Came to know through Munir Hussain (given up P.W.) and Muhammad Saleem (P.W.3) that shortly before their arrival Dr.Muhammad Aslam and Dr.Javed Umar who came there in a car, were forcibly taken by the accused namely, Naeem Akhtar, armed with mauser, Iftikhar Ali armed with 7 M.M. Rifle and Zulfiqar Ali, empty-handed towards Rahimyar Khanin their car. The complainant and his companions while searching the two doctors when reached at bank canal near Adam Sahba within the area of village Rehmoon at 11-30 p.m., they found that Dr.Muhammad Aslam with his hands tied behind his back was lying dead on the soling of the canal whereas Dr. Javed Umer with the hands tied in the back was calling for help from the water in the canal. They untied the hands of Dr.Javed Umer and brought him out of the canal. Dr.Javed Umer narrated the story of their abduction by the accused in the car of Dr.Muhammad Aslam from his plot to the canal bank where they committed the murder of Dr.Muhammad Aslain and pushed him in water in the canal. It was stated in the F.I.R., that the motive behind the occurrence was that Mst.Hafeezan Bibi, mother of Naeem Akhtar, accused got fractured in her leg in a road accident and remained under treatment of Dr.Muhammad Aslam as private patient in Yousaf Hospital. She was also operated upon by Dr.Muhammad Aslam but unfortunately the operation could not succeed and ultimately she was admitted in District Headquarters Hospital, Rahimyar Khan where her leg was imputed. The accused having held Dr.Muhammad Aslam responsible for permanent disability of Mst.Hafeezan were demanding from him the payment of expenses of her treatment and on his failure to accede to their demand, they becoming revengeful, abducted Dr.Muhammad Aslant and Dr.Javed Umer and after taking them to the bank of canal Iftikhar Ali, who was armed with rifle, and Naeem Akhtar who was armed with mauser, fired one shot each at Dr.Muhammad Aslam who having sustained the injuries, lost his breath at the spot. The accused then by taking away with the wallet from the pocket of the deceased, which contained Rs,2,000, also removed his ring, identity card, wrist-watch, escaped from the place of occurrence towards Rahimyar Khan in his car. Naeem Akhtar, appellant, was challaned to face the trial before the Special Court established under Anti-Terrorist Act, 1997 whereas his co-accused namely Iftikhar Ali, Zulfiqar Ali and Muhammad Shafiq alias Jaffar Hussain absconded and were declared proclaimed offenders.
5. Sajid Hussain, Inspector/S.H.O., Police Station, Saddar, Sadiqabad,on receiving information of the occurrence, immediately reached at the spot and recorded the statements of Javed Umer, Abdul Basit and Muhammad Tariq. The Inspector having examined the dead body of the deceased, prepared the inquest report and injury statement and sent the dead body to the hospital for post- mortem examination. During spot inspection the Inspector took into possession blood-stained earth and one crime empty from the place of occurrence. The Inspector also visited the place of abduction of deceased and Dr.Javed Umer in Nashamin Colony and having prepared the site plan, recorded the statements of Munir Hussain and Muhammad Saleem (P.Ws.). The appellant was arrested on 17-8-1998 and he got recovered wrist-watch of the deceased on 29-8-1998 from his house and mauser which Was used by him as weapon of offence on 30-8-1998 from an open place underneath a tree. The crime empty recovered from the place of occurrence was sent to the ballistic expert before the recovery of weapon of offence which was also subsequently sent for expert opinion and as per report of firearm expert, the crime empty was found to have been fired from the mauser. The blood-stained earth as per report of chemical examiner, was stained with human blood.
6. Dr. Zahoorul Haq (P.W.1) during post-mortem examination of the dead body, traced the following six injuries on the person of the deceased:-- INJURIES Injury No.1 A lacerated gaped wound of entry 1 x 1/2 inches on the left angle of the mouth, with brunt and inverted margins. Corresponding part of the mandible fractured and missing alongwith canine and premolar (Upper and Lower). Hard Pallet and maxillary fractures and perforated. Base of skull fractured and perforated. Brain matter lacerated. Meninges injured vault of skull extensively fractured. A smashed bullet recovered from brain matter. Injury No.2 A circular wound of entry 1/3 x 1/3 inches on the posterior and outer aspect of the left arm. Margins of the wound burnt and inverted. Injury No.3 A lacerated wound of exit 1 x 1/2 inches on inner side of the left arm. Margins averted. Injury No.4 A lacerated wound of entry 1 x 1/2 in charge on lateral side of left chest in mid auxiliary line, conceding with injuries Nos.2 and 3. Margins of the wound inverted. Injury No.5 A lacerated wound of exit 1 , 1/2 inches on right side of chest above and lateral to the right nipple.
Margins of the wound evened. Injury No.6 Mark of ligature presents round both right and left wrist. In the opinion of the doctor, injuries Nos.1, 4 and 5 individually and injuries 1 to 5 collectively were sufficient to cause death in the ordinary course of nature and injury No,6 was a ligature and that injuries Nos.2 to 5 could be the result of the same fire. Muhammad Saleem (P.W.9) is an eyewitness of thee first part of the occurrence which related to the abduction of the deceased and Dr.Javed Umer from Nishaman Colony. He deposed that within his sight, the deceased and doctor Javed were forcibly taken towards Rahim Yar Khan in their car by the accused on the gun point. Dr. Muhammad Sarwar (P.W.3) owner of Yousaf Hospital stated that the deceased doctor was an orthopaedic surgeon and was associated with his hospital as private practitioner. He further stated that Mst. Hafeezan Bibi, mother of appellant was operated upon by Dr.Muhammad Aslam as his private patient in his hospital and that before the fateful occurrence, accused had extended threats of life to Dr.Muhammad Aslam with the demand of payment of the amount of expenses spent on the treatment of Mst.Hafeezan Bibi. Muhammad Athar (P.W.10) the first informant, on receipt of the information about the abduction of the two doctors proceeded towards Rahimyar Khan in company of Munir Hussain and Muhammad Saleem in their search and they found the dead body of Dr.Muhammad Aslam on the canal side and Dr.Javed Umer was crying for help at a short distance in the water. Muhammad Basit (P. W.11) was a worker in Yousaf Hospital. In his presence Munir Hussain and Muhammad Saleem narrated the story of abduction of the two doctors. Dr. Javed Umer (P.W.12) being victim of the occurrence is the star witness who has described each detail of the occurrence from beginning to end. The appellant in his statement under section 342, Cr.P.C., denied the charge and pleaded that during the days of accident of his mother and imputation of her leg in Civil Hospital, Rahimyar Khan he was in Saudi Arabia and that Dr. Muhammad Aslam had no concern with Civil Hospital, Rahirnyar Khan. The appellant in reply to a question that why he was made an accused in the case, replied in the following manner:- "P.Ws. Made the statement against me' because some of them are close relatives of the deceased and some P.Ws. Are employee of the Yousaf Hospital, Sadiqabad and I and my brother have enmity and Dr. Muhammad Aslam deceased who was employee and close friend of Dr.Muhammad Sarwar Tahir and case was falsely made against me and my brothers with the mala fide intention of complaint and Dr.Muhammad Sarwar Tahir."
7. The learned trial Judge at the conclusion of the trial, vide judgment dated 11-6-1999 convicted the appellant under section 7 of the Anti-Terrorism Act, 1997 read with sections 364/365 and 411, P.P.C., and sentenced him in the following manner:--
(a) Under section 7 of the Anti-Terrorism Act, 1997 imprisonment for life with a fine of Rs,50,000 and in default of payment of fine to undergo R.I. For two years.
(b) Under section 364, P.P.C., life imprisonment with a fine of;. Rs,20,000 and in default of payment of fine to undergo R.I. For one year.
(c) Under section 365. P.P.C., R.I. For 7 years with a fine of Rs,5,000 and in default of payment of fine to undergo R.I. For six, months.
(d) Under section 411, P.P.C., R.I. For two years.
8. The co-accused of the appellant were tried in absentia and were also convicted and sentenced in the same manner, except Iftikhar Ali who having been found responsible for causing fire-arm injuries to Dr. Muhammad Aslam was awarded sentence of death under section 7 of the Anti- Terrorism Act, 1997. The different sentences of imprisonment awarded to the appellant and his co- accused were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
8-A. The appellant challenged the legality of his conviction and sentence in the High Court through Criminal Appeal No,28 of 1999 whereas the State filed Criminal Appeal No,32 of 1999 for enhancement of his sentence from imprisonment for life to death and the trial Court sent a Reference to the High Court for confirmation of sentence of death awarded to Iftikhar Ali. The High Court while disposing of the appeals and Reference vide judgment. Dated 19-7-2000 by setting set aside the conviction and sentence of the appellant under section 7, A.T.A., 1997 convicted him under section 302, P.P.C., and awarded him sentence of life imprisonment. The fine of Rs,50,000 was converted into compensation for payment to the legal heirs of the deceased and in default there of appellant was directed to undergo S.-I. For six months. The conviction and sentence of the appellant and his co-accused under section 364, P.P.C., was set aside but the conviction and sentence under section 365, P.P.C., for abduction of Dr.Javed Umer was maintained and sentence under section 411, P.P.C., awarded to the appellant was also maintained with direction that all the sentences would run concurrently with benefit of section 382-B, Cr.P.C. The conviction and sentence of the co-accused of the appellant, who were tried in absentia and were still absconding, was also set aside with direction that they on arrest or surrender would be tried separately. The murder reference was answered in the negative.
9. Learned counsel for the appellant has contended that the High Court rightly having come to the conclusion that it was not a case of terrorism, set aside the conviction and sentence under section 7, A.T.A., 1997 committed an illegality in not sending the case to the Court of competent jurisdiction for trial in accordance with law, as none of the remaining offences with which the appellant was charged, was included in the Schedule to the Anti Terrorism Act. 1997, therefore, taking of cognizance and trial of the case by the Special Court established under the said Act was without jurisdiction. The learned counsel submitted that the alleged motive behind the occurrence was afterthought and in fact Dr.Javed who was initially taken into custody by the police as suspect, was the real culprit but subsequently, he was released on his becoming witness against the appellant and others. Learned counsel argued with vehemence that Dr.Javed Umer being an accomplice was not a truthful witness and no reliance could be placed on his evidence. Learned counsel while pointing out the minor discrepancies and contradictions in the prosecution evidence, has made an attempt to argue that the story of abduction and murder of Dr.Aslam by the appellant and his co- accused was fabricated by Dr.Javed Umer to save his skin and while taking us to the statement of Muhammad Saleem, an eye-witness at the scene of the abduction of two doctors, submitted that there was nothing in his statement to suggest forcible abduction or that any resistance was put by the abductees to the accused, which fact would negate the prosecution story of the forcible abduction of doctors from Nashaman Colony. In nutshell, the learned counsel argued that in absence of any other evidence, the sole statement of Dr. Javed Umer was not sufficient for conviction and sentence on the capital charge.
10. Learned counsel representing the complainant in Criminal Appeal No,525 of 2000, on the other hand, forcefully argued that notwithstanding the motive of personal grievance, the manner in which the offence was committed would squarely bring it within the definition of terrorism and that Dr.Javed Umer was neither associated with Dr.Muharrunad Aslam in the treatment of Mst.Hafeezan Bibi, mother of appellant, nor he had any personal reason to become a witness in the case and depose falsely against the appellant and his co-accused. Learned counsel added that Dr.Javed Umer who was abducted with Dr.Muhammad Aslam being victim of the occurrence, was most natural witness and that his evidence relating to the first part of story of abduction was seeking corroboration from the statement of Muhammad Saleem who was present at the scene of abduction and the second part relating to the firing at the deceased at the place of recovery of his dead body was supported by the recovery of the crime empty from the place of murder which was found matched with the mauser used by the appellant and was subsequently recovered at his instance. The learned counsel submitted that the motive part of the story was proved by the evidence of Dr.Javed Umer who had direct knowledge of the treatment given by the deceased to Mst.Hafeezan Bibi and the demand of accused for payment of expenses of her treatment and further Dr.Muhammad Sarwar CP.W.3) owner of Yousaf Hospital where Mst.Hefeezan Bibi remained under surgical treatment of Dr.Muhammad Aslam deceased having direct knowledge of the matter, also supported the motive part of the prosecution story. The learned counsel submitted that there was bundle of direct and circumstantial evidence in support of the charge of abduction of Dr.Muhammad Aslam, deceased and Dr.Javed Umer on gun point from an open place and taking them to the canal bank where Dr. Muhammad Aslam was murdered. The learned counsel added that the manner in which the offence was committed, would be a rich source of creating panic and terror in the area, which would constitute an offence of terrorism punishable under section 7 of the A.T.A., 1997. The learned counsel next argued that the co-convict of the appellant have neither filed an appeal against their conviction and sentence nor surrendered before the law, therefore, the High Court could not set aside their conviction and sentence on the strength of law laid down by this Court in Mehram Ali's case (PLD 1998 SC 1445).
11. Learned counsel appearing on behalf of the State in Criminal Appeal No,526 of 2000 while adopting the arguments of the learned counsel for the complainant/appellant in Criminal Appeal 525 of 2000 added that acquittal of the appellant and his co-accused from the charge under section 7, A.T.A., 1997 was not legal and that the sentence of life imprisonment awarded to the appellant under section 302, P.P.C., was inadequate.
12. The prosecution story as contained in the F.I.R., consists upon two parts. The first part related to the abduction of deceased and Dr.Javed Umer and second part pertained to the murder of Dr.Muhammad Aslam on the same day at bank canal. The evidence of Dr.Javed Umer relating to the second part of the occurrence was supported by the report of ballistic expert, according to which the crime empty recovered from the spot matched with the mauser which was used by the appellant as the weapon of offence and was recovered at his pointation. The motive for the occurrence no doubt related to the personal grievance of the appellant who held the deceased responsible for imputation of leg of his mother but murder of the doctor after his abduction for such a motive would be an alarming situation for all doctors and would be a direct source of creating panic and terror in the medical procession. It is commonly known that despite taking full care by the doctor, sometimes a patient is not recovered and survived. The damage caused to the patient can be due to the negligence of the concerned doctor and medical staff but the law does not, permit to fix the responsibility of the doctors without adopting the process of law. The drastic action of abduction and murder of Dr.Muhammad Aslam holding him responsible for the damage caused to the mother of appellant, who ultimately lost her leg, without proof of the negligence of deceased, would be an open act of terrorist which would be the direct source of terrorizing the doctors rendering service in the field to prevent them from discharging their lawful duty. The terrorism has been defined in section 6 of the A.T.A., 1997 as under:- "6. Terrorist act.---Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people,does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act."
13. In general terms a fright, dread or an apprehension in the mind of a person induced by an horrible act of a person or causing fear and terror to the people is terrorism and if an act done by a person which is a source of terror in any section of people, which may cause damage to life or property of an individual, is a terrorist act and is an offence as defined in section 6 of A.T.A., 1997 and punishable under section 7 of the said Act. The act of abduction of the deceased and Dr.Javed Umer from an open place on gun point and subsequent murder of Dr. Muhammad Aslam for the reason that patient could not get desired result by the treatment given by him, would create unrest, panic and terror against the doctors who are discharging very sacred duty in the medical field.
14. We having examined the evidence in detail with the help of learned counsel for the parties, find that the eye-witnesses in the present case were entirely independent, truthful and reliable.
Muhammad Saleem who has witnessed the occurrence of abduction of two doctors by the accused from an open place in Nashaman Colony being resident of the same area, was known to the deceased and the accused but neither had any association with the deceased and Dr.Javed Umer nor any enmity or grudge against the appellant and his co-accused to become a false witness and depose against the accused. This witness has narrated the story of abduction of doctors by the accused on gun point in their car and despite lengthy cross-examination the defence could not succeed in bringing anything material on record to suggest even a slight doubt in the truthfulness of his statement.
15. Dr. Javed Umer, being the victim of the occurrence, was the most natural witness who has narrated the occurrence in each detail without any describable omission and addition to suggest any doubt to the truthfulness of his deposition. The contention of the learned counsel that Dr.Javed Umer was taken into custody as suspect in the case and during the interrogation, he became violent as a result of which a case was also registered against him by the police and he was not a reliable witness, was without any substance. There is nothing in his statement or in the prosecution evidence that he was taken into custody by the police as suspect and the suggestion put to him in this behalf in the cross-examination was denied by him by saying that he exchanged hot words with police officials for their behaviour in the police station and in consequence thereto a case was registered against him at the instance of said police officials. The report Of the occurrence was lodged on the basis of story narrated by Dr.Javed Umer to the complainant at the place of occurrence and the Investigating Officer also recorded his statement on the same day on reaching at the spot whereas the above incident of exchanging hot words with police officials happened much later in the police station which would have no nexus with the occurrence. The scrutiny of the statement of Dr.Javed Umer would reveal that his statement was free from any exaggeration and he being an educated person and a doctor by profession, would not be expected to make a false statement against the innocent persons in a case of capital punishment. He was the natural witness of the occurrence and his evidence being of unimpeachable character was alone sufficient to prove the charge which would also be seeking ample corroboration from the evidence of motive, medical and recoveries.
16. The perusal of the statement of doctor who conducted the postmortem examination on the dead body, would show that the injury on the person of deceased attributed to the appellant was individually found sufficient to cause death in the ordinary course of nature, therefore, the contention of the learned counsel that the appellant was not attributed the fatal injury would be repelled by the medical evidence. The appellant played an active role in the occurrence in which the innocent doctor was done to death in a gruesome manner with extreme highhandedness, brutality and causing terror in the area. The scanning of the evidence in detail would show that prosecution in addition to the charge under sections 302/365/411, P.P.C., has also successfully established the charge under section 7, A.T.A., 1997 against the appellant beyond any doubt and we hold him guilty of committing the above offences.
17. The charge was framed against the appellant and his co-accused under sections 364/365/302/342/34, P.P.C., read with section 7, Anti-Terrorism Act, 1997. The trial. Court convicted and sentenced the appellant under section 7, A.T.A., 1997 read with sections 364/365, P.P.C. And 411, P.P.C. The High Court while setting aside the conviction and sentence of appellant under sections 7, A.T.A., 1997 and 364, P.P.C., convicted him under section 302, P.P.C., and sentenced him to life imprisonment and further maintained his conviction and sentence under sections 365/411, P.P.C.
The High Court also set aside the conviction and sentence of the remaining accused who were tried in absentia on the strength of law laid down by this Court in Mehram Ali's case (PLD 1998 SC 1445).
18. The procedure for in absentia trial is given under section 19(b) of the A.T.A., 1997 which provide; as under:-- "19......................................
"(10) Any accused person may be tried in his absence if the Special Court, after such inquiry as it deems fit, is satisfied that--
(a) such absence is deliberate and brought about with a view to impeding 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 person shall not be tried unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code: Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an Advocate at the expense of the State to defend the accused person who is not before the Court.
Explanation.---An accused who is tried in his absence under subsection (1) shall be deemed not to have admitted the commission of any offence for which he has been charged.
(11) The advocate appointed under the second proviso to subsection (10) shall be a person selected by the Anti-Terrorism Court for the purpose and he shall be engaged at the expense of the Government.
(12) If, within sixty days from the date of his conviction, any person tried under the Anti-Terrorism Court, and proves 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 try him in accordance with law for the offence with which he is charged: Provided that the Anti-Terrorism Court may exercise its powers under this subsection in case in which a person as aforesaid appears before it after the expiration of the said period and satisfied it that he could not appear within the said period by reasons of circumstances beyond his control.
(13)..............
(14) Subject to the other provisions of this Act, an Anti-Terrorism Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session as far as may be in accordance with the procedure prescribed in the Code for trial before a Court of Session." This Court in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) declared the absentia trial illegal in the following manner:- "(iii) though most of the learned counsel for the petitioners assailed section 19 as a whole but we are of the view that only clause (b) of subsection (10) of section 19 is violative of the fundamental right of access to justice. The above clause (b) of subsection (10) of section 19 authorizes a Special Court to order the removal of an accused person from the Court if his behaviour is such as to impede the course of justice and then to proceed with the case in absentia. An accused person for his misbehaviour in Court can be convicted for contempt of Court and punished, but on no principle of law, he can be denied the right to be present and to defend himself in a criminal matter. This Court has already held in the case of Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341) (supra) and Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) (supra) that right of access to justice is well-recognized and inviolable right enshrined in Article 9 of the Constitution, which lays down that no person shall be deprived of life or liberty save in accordance with law. If an accused person is removed from the Court on account of his misbehaviour and in his absence the trial is concluded and he is sentenced to death, he will be deprived of his life without due course of law. Secondly, under clause (1) of Article 10 of the Constitution an accused person has the right to consult and be defended by a legal practitioner of his choice in case he is arrested and detained. We, therefore, declare the above provision as violative of the above Constitutional provision and having no legal effect."
19. The co-accused of the appellant who were tried and convicted in absentia, have neither surrendered before the law nor they filed any appeal against their conviction and sentence and they being fugitive from law, would not be entitled to be given the benefit of law laid down by this Court in PLD 1998 SC 1445.
20. We having analyzed the evidence in detail find that the acquittal of the appellant from the charge under section 302, P.P.C., by the trial Court and under section 7, A.T.A., 1997 by the High Court was not legal and further in view of the nature of offence and manner in which the crime was committed, withholding the maximum sentence for the above offences provided under the law, would defeat the concept of criminal administration of justice.
21. The net result is that the conviction awarded to appellant Naeem Akhtar under section 7, Anti- Terrorism Act, 1997 by the trial Court was legal and the same was wrongly set aside by the High Court. We, therefore, convict him under section 7, A.T.A., 1997 and being of the view that no leniency can be shown in such cases of terrorism, award him sentence of death under section 7, A.T.A., 1997.
The conviction under section 302, P.P.C., awarded to the appellant by the High Court in appeal is maintained with enhancement of his sentence from life imprisonment to death. The conviction and sentence of the appellant under sections 365/411, P.P.C., is also maintained.
22. We, with the above modification in the conviction and sentence of Naeem Akhtar appellant, dismiss his appeal (Criminal Appeal No,524 of 2000) and allow Criminal Appeal No,525 of 2000 filed by Muhammad Athar, complainant of the case for enhancement of sentence of the appellant.
The Criminal Appeal No,526 of 2000 filed by the State also succeeds in the above terms.