SARDAR MUHAMMAD NAWAZ KHAN, J.---This is an appeal against the conviction order, dated 30- 5-2002 recorded by the Judge Ehtesab Court No. 1, Muzaffarabad through which the appellant has been convicted for three years' imprisonment.
2. The brief facts are that five References bearing Nos. 11 of 2001, 12 of 2001, 13 of 2001, 14 of 2001 and 15 of 2001 were brought before Ehtesab Court No. 1 at Muzaffarabad against convict-appellant (appellant hereinafter). The appellant absconded after his release on bail by the trial Court therefore, he was proceeded under section 512, Cr.P.C. In the aforesaid references. As the absconsion to avoid the service of warrant by itself is an offence under Azad Jammu and Kashmir Ehtesab Act, 2001 thus, a separate reference under section 36 of the said Act was filed against the appellant in the same Court. The trial Court once again sumnmned the appellant to appear before the Court and face the trial but his attendance could not be secured due to his absconsion.
Subsequently, proceedings under section 512, Cr.P.C. Were also initiated against him and prosecution was directed to lead evidence. As many as 11 P.Ws. Appeared and their Court statements were recorded. The trial Court at the conclusion of ex prate trial, convicted the appellant for three years' imprisonment. Hence this appeal.
3. The present appeal has been presented in absentia, therefore, the learned counsel for the appellant were confronted to show as to how the appeal filed in absence of the appellant was competent. They in response to the objection about the competency of the appeal submitted that the appellant had surrendered meanwhile therefore, their appeal might be decided on merits of the case. They further contended that the appeal was competent even in his absence as laiddown under section 419, Cr.P.C. Itself coupled with the case-law like Muhammad Akram's case (1993 SCR 300), PLD 1991 SC 382, 2000 PCr.LJ 1006, 1981 PCr.LJ 194 and PLD 1953 Federal Court 138. On merits of the case, it was contended by the learned counsel for the appellant that the impugned order was not sustainable in the eye of law as the same was recorded by violating prescribed procedure laid down in the Code of Criminal Procedure. According to them, no conviction could be ordered in absence of the accused as he was proceeded under section 512, Cr.P.C., therefore, the conviction order was a result of blatant violation of the law on the subject, the learned counsel maintained.
According to them, the trial. Of the cases under Ehtesab Act is governed by the Criminal Procedure Code which is applicable mutatis mutandis to the cases under Ehtesab Act.
4. On the other hand, it was submitted on behalf of prosecution that the appeal in absentia was incompetent in the eye of law, therefore, it merited its dismissal on this sole ground. While controverting the learned counsel for the appellant on merits of the case, it was contended that the trial Court while convicting the appellant in absentia committed no illegality as the impugned order was warranted under law.
5. At the out set of the case, it may be observed that the case-law cited- by the respective parties is not helpful to resolve the proposition about the maintainability of the present appeal filed in absentia on behalf of appellant. However, Nafazullah's case PLD 1953 Federal Court 138 deals with a regular appeal filed in absentia but that too when the sentence was suspended by the trial Court under section 426 (2-A), Cr.P.C. It was observed that the trial Court failed to fix a reasonable time for enabling the convict to obtain order for suspension of sentence from the Appellate Court, therefore, the appeal in absence of the convict was entertained in the precedent case.
6. Chapter 31 of Cr.P.C. Deals with different forms of appeals in criminal case and the procedure to be followed in filing appeals. There are two kinds of offence bailable and non-bailable. When an accused convicted by the trial Court in bailable offence, the trial Court under section 426(2-A) may after its satisfaction required by the said provision of law suspend the sentence to enable the convict to f appeal within reasonable time and get the conviction order suspended from the appellate Court. Similarly, when an accused is to be tried in non-bailable offence he should either be on bail or in Jail. When the accused while on bail is convicted by the trial Court, he is legally obliged to surrender before law first and then move for vacation of conviction through an appeal as provided under section 420, Cr.P.C. However, when a sentence has been imposed in a bailable offence and the trial Court has suspended conviction order for a specific time to enable the convict to file appeal then. Of course, he may file his appeal through pleader or his counsel within time specified by the trial Court. If he fails to do so within time given to him for filing an appeal he has to surrender before filing of his appeal before Appellate Court. Section 419, Cr.P.C. Is a general provision of law and an appeal under this section may be filed through pleader or counsel from Jail or in case of conviction in a bailable case where sentence has been suspended under section 426 (2-A) of Cr.P.C. But where the conviction has been recorded in a non-bailable offence while accused on bail or where appeal in a bailable case has not been filed within the time for which the trial Court has suspended the sentence, no appeal through pleader or counsel is allowed unless the convict surrenders before law and is taken into custody by the police. We are afraid toaccept this argument that in non-bailable offence or even in bailable offence when the appeal is not filed within time specified by the trial Court may be brought before Appellate Court in absentia. If we allow this argument to prevail it would definitely jeopardize the entire system of criminal justice.
The position which emerges out after examining Chapter 31 of Cr.P.C. Especially with regard to form of appeal and procedure for filing of appeal in case of conviction is that no appeal in absentia against a conviction order in non-bailable offences or bailable cases where the appeal is not filed within time specified by the trial Court is competent in the eye of law resultantly the appeal by the appellant stands dismissed as incompetent.
7. The learned counsel for the appellant while sensing the difficulty they were facing about the maintainability of the appeal in absentia requested to set aside the conviction order by exercising powers vested in this Court under section 561-A of Cr.P.C. As the impugned order was recorded by violating the prescribed procedure for the trial of criminal cases under Ehtesab Act.
8. It is correct that Criminal Procedure Code applies mutatis mutandis to the proceedings during trial before Ehtesab Court, however. In Pakistan Ehtesab Courts are made competent to adopt any other procedure during trial as provided under section 17(C) of National Accountability Bureau Ordinance, 1999 when they deem it necessary. The law which holds field in Azad Jammu and Kashmir is somewhat different. The Ehtesab Courts established in Azad Jammu and Kashmir are to follow the procedure laid down in Criminal Procedure Code as visualized under section 36 of Ehtesab Bureau Act, 2001 and they are not competent to dispense with the procedure given in the Code of Criminal Procedure.
Therefore, it can safely be said that the trial Court in the instant case violated the relevant procedure and convicted the appellant in absentia on the basis of ex pane evidence. As stated earlier, the absconsion of an accused to screen himself from the trial is an independent offence under section 36 of Ehtesab Bureau Act, 2001, therefore, the trial in the said case is also to be conducted in the same manner as in other offences under Ehtesab Act. It was incumbent upon the trial Court to keep the case on the dormant file, if the accused was found to be untraceable. The intent and purpose of section 512, Cr.P.C. Does not speak in favour of Appellate Court's action. The general rule is that all the evidence in criminal cases is to be taken in presence of the accused or when he is exempted from personal appearance in presence of his counsel. Section 512, Cr.P.C. Is an exception to the general rule and its object is to exclude the possibility of loss of evidence at the time the accused is arrested. This provision of law being an exception is required to be construed strictly. It does not enable the Court to proceed with the trial of the cases and record conviction or pass a sentence in absentia. This section suggests only a preliminary finding when the accused absconded and there was no immediate prospect to his arrest. After taking necessary proceedings under section 512, Cr.P.C. The available evidence is to be recorded. After doing so, the case is to be consigned to record till the time the accused is arrested or he himself surrenders. After his appearance, the evidence so recorded during his absence (if possible) is to be put to him whether or not he accepts the same. When he exercises option to examine the same, the trial Court is under legal obligation to recall the evidence so that it may be cross-examined by the accused.
9. The next question which needs resolution is that whether the impugned order can be set aside in this eventuality when the appeal has been dismissed being incompetent. To help resolving the controversy, recourse may be had to section 561-A of Cr.P.C. Which may conveniently be reproduced as follows:-- "561-A. Saving of inherent power of Hiah Court. ---Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. "
10. The language or phraseology employed in the above-quoted provision of law suggests to say that if an abuse of process of Court by any subordinate Court is found or otherwise an order by the High Court is required to secure the ends of justice, the inherent powers under this section are available to the High Court to undo the wrong. Here in this case, a blatant violation showing illegal exercise of jurisdiction is found to have been committed by the trial Court. The said Court was not competent to award sentence in absentia after proceeding under section 512, Cr.P.C. It is a clear-- cut abuse of process of the Court which needs its rectification through vacation of impugned order. Therefore, by exercising inherent powers available to this Court under section 561-A, Cr.P.C.
The impugned order is set aside 4,nd the case is remanded to the trial Court to decide it afresh after following relevant procedure. As the appellant has surrendered by now therefore, his bail application which he has submitted before this Court may also be considered on merits by the trial Court.