AKHTAR ZAMAN MALGHANI, J.---Through this judgment, we intend to dispose of Criminal Appeals Nos. 118/2000, 136/2000, 37/2001, 38/2001, 46/2001, 191/2001, 18/2002 and 97/2002 as identical question of law is involved in all these appeals.
2. We do not consider it necessary to marshall facts of each case except that in all appeals, appellants were tried in absentia and convicted. They have filed these appeals either through their relatives or through counsel. A question arose as to whether these appeals have been competently filed and can be entertained without surrendering of the appellants to the process of law.
3. We have heard the learned counsel appearing on behalf of the appellants as well as Additional Advocate-General.
' Mr.Abdul Waheed Katper, Advocate appearing in Criminal Appeal No,97/2002 vehemently contended that under subsections (10) and (11.) of section 19 of the Anti-Terrorism Act, 1997 the accused person can be prosecuted in absentia whereas; by virtue of provisions of under section 19 (11-A) the accused has been given a (sic) behalf which spelled out the intention of the Legislature that the accused proposed to be tried in absentia can have a reasonable opportunity to appoint a counsel of his own choice for properly defending him during trial. He further contended that section 7 of the Act XV of 1975 also did not provide that an accused before filing appeal must surrender before the Appellate Court and; conversely it was provided that a person sentenced under the Act shall have a right of appeal which according to the learned counsel is an inalienable absolute right of which the accused cannot be deprived to question his conviction before the Appellate Court merely because he has not surrendered to law. Further substantiating his arguments, the learned counsel referred to section 419, Cr.P.0 and contended that the appeal can be presented by the convict or by his, pleader, as such; the appeal filed by a counsel on behalf of accused on the basis of power, executed by the convict/accused, is competent and has to be decided on merits notwithstanding the absconsion of the convict and his having failed or refusal to surrender. He further contended that there is no provision in Cr.P.C., or High Court Rules and Orders that an appeal against conviction must be presented by the appellant himself. According to the learned counsel, when two parallel interpretations of statutory provisions can be or are possible, the one favouring the accused should be adopted. By quoting an example to further illustrate his view- point, Mr.Chishti submitted that in a case in which death sentence was passed by a competent Court in absentia pending confirmation by Court of appeal, shall thus obviously be decided without hearing the condemned accused in case the appeal preferred on behalf of such accused is not allowed to be entertained. He referred to case-law reported in PLD 1998 S.0 page 1445. According to learned counsel in order to avoid anomaly it would be appropriate and just to entertain appeal in absentia on behalf of a convict.
6. The learned Additional Advocate-General vehemently opposed the maintainability of these appeals and submitted that a fugitive from law who refused to surrender to the law, loses normal rights and he cannot be allowed to file appeal without first surrendering. According to learned Additional A.-G the appeal has to be filed by the convict himself or by his counsel as provided under section 419, Cr.P.C. But such appointment must have been duly made hence, the purported execution of power in favour of a counsel without surrendering cannot be construed or assumed to have been duly done and appeal filed on the basis of such power, therefore, would be incompetent. He relied upon the case-law reported in PLD 1956 Federal Court page 43, PLD 1969 SC 89, 1982 SCMR page 911, PLD 2002 Lahore page 74. Syed Ayaz Zahoor, Advocate appeared on behalf of complainant party in Criminal Appeal No,97/2002, supported the contentions put forth by the learned Additional A.-G. We have, considered the respective contentions put forth by the parties' counsel in the light of the relevant provisions of law and have also carefully considered various judgments of the Hon'ble Supreme Court as well as of the High Court on the point in question. Before attending the respective contentions noted above we deem it expedient and appropriate to refer various judgments of superior Courts on the point in question.
7. In the case of Chan Shah v. Crown reported in PLD 1956 Federal Court page 43 the Hon'ble Apex Court refused to entertain the appeal of the petitioner who after conviction by the High Court, had absconded and did not surrender to the process of law. The appeal was filed by Mr.Nazir ud Din, Attorney of the Apex Court, on behalf of Chan Shah who signed a Power of Attorney in his favour. It was held by the Hon'ble Court that Court would not act in aid of person who was a fugitive from justice. However, learned Attorney was given opportunity for making appearance of the petitioner Chan Shah but he failed to produce or induce him to appear in the Court. It was further held: "It is an essential condition of the administration of justice in a case effecting an individual or individuals, that the person concerned should submit to the due process of justice." The Hon'ble Apex Court further observed: "We cannot conceive of a more flagrant violation of this condition than a case like the present where the individual seeks the interference of the sovereign to obtain revision of a judicial order when he is himself engaged in setting the judicial order at naught."
8. In another case reported in PLD 1969 S.0 page 89 (Gul Hassan and another v. The State) accused Gul Hassan and Bhadur Khan after their conviction under section 302, P.P.0 by the trial Court absconded from the police custody while being taken to District Jail from the Court. Before absconding they executed a power of attorney in favour of a person for the purpose of filing appeal who filed appeal accordingly on their behalf in the High Court. During hearing of the appeal Bhadur Shah was arrested but Gul Hassan remained fugitive from law, as such; Hon'ble High Court confirmed the death sentence in his absence after examining provisions of sections 366, 374, 422 and 423, P.P.0 and coming to the conclusion that the presence of a condemned prisoner was not essential for disposing of the :eference under section 374, Cr.P.C. Against said judgment, the absconder Gul Hassan filed criminal appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court after hearing the arguments and considering the facts of the case held: "That the appeal filed by the counsel on the basis of power of attorney executed by Gul Hassan in favour of a person before his absconsion was not properly constituted, as such, the High Court should have dismissed the appeal on this ground alone." It was further held that Gul Hassan being a fugitive from law and a contemnor was not entitled to a hearing and leave granting order was rescinded. The Hon'ble Apex Court also endorsed the view adopted by the Judges in the High Court that if a petitioner decamps and thereby forfeits right of audience, the sentence of death may be confirmed in his absence.
9. In a case reported in PLD 1982 SC page 294 (Miraj Begam v. Ejaz Anwar and others) the Hon'ble Supreme Court observed as under: "The respondent remained fugitive from law for nearly five years and failed to surrender in spite of non-bailable warrants of arrest. Because of intentional non-surrender, defiance of Court process, respondent lost right of hearing and counsel appearing in Court have no right to represent him and Court not obliged to seek any assistance from him for disposal of appeal." It may be noticed that Ejaz respondent in the above mentioned appeal was acquitted by the High Court and on petition for leave to appeal filed by Miraj Begum non-bailable warrants of arrest of respondent were issued by the Hon'ble apex Court but he did not surrender himself before the Court. However, a learned counsel appeared on his behalf under his instructions and sought permission for advancing arguments on behalf of the respondent, which request was refused.
10. Similarly in the case of Hayat Bakhsh and others v. State reported in 1982 SCMR page 623, the Hon'ble Supreme Court dismissed the appeal of Allah Bakhsh son of Muhammad Bakhsh who was fugitive from justice, although, the appeal of other appellants namely Hayat Bakhsh, Muhammad Afzal and Allah Bakhsh son of Sikandar were accepted and they were acquitted of the charge.
11. In another case reported in 1990 P.Cr.L.J page 44, the Sindh High Court refused to entertain an application under section 561-A Cr.P.C. For quashment of proceedings pending before the trial Court on the ground that the accused neither appeared before lower Court nor they surrendered before High Court. It was further held that the accused were not entitled to any relief, as persons seeking relief should submit to the Court. In the above-referred judgment the attorneys and counsel were warned of serious consequences of committing contempt of Court in filing appeal on behalf of the accused who were absconders.
12. In the case reported in 1999 PCr.LJ 1381 (Haq Nawaz v. The State) the learned Judges in the High Court refused to hear the case of Riaz Basra and Javed Ahmed on merits, who were tried in absentia and neither surrendered during the course of trial nor after conviction, the Hon'ble Court held that an individual seeking review of judicial order must surrender to the process of law and if he decamps, he loses, right of audience. However, the appeal of Zaki Ullah was entertained because he had filed the appeal when he was in custody but after filing appeal he absconded from the jail. Feeling aggrieved by the order of High Court with regard to entertaining the appeal of Zaki Ullah and deciding the same on merits, the State filed petition for leave to appeal before the Hon'ble Apex Court which was converted into appeal and their lordships held that the accused being not an absconder and fugitive from law at the time he lodged his appeal and his subsequent act of absconding from jail being an independent act punishable under the law separately, High Court had rightly dealt with his case on merits. (2000 SCMR page 785 referred).
13. In case. Of Mohtarma Benazir Bhutto v. The State reported in 1999 SCMR page 1619 while dealing with the point in question it was held as under:-- "From a bare reading of Rules 8(ibid) it is apparent that this rule is applicable to petition file wherein leave to appeal is sought against any order of imprisonment or fine. The first proviso to Rule 8 envisages that aid for securing interference by this Court with a judicial order for imprisonment or fine against which leave to appeal is sought, is entertained only when the surrender is first made to order for imprisonment. The above rule is in conformity with the fundamental rule of the administration of justice that persons seeking aid of justice in a criminal case should submit to the due process of justice. Clearly, the Court would not act in aid of person who is a fugitive from justice and the petition filed by such a person against his imprisonment seeking leave to appeal is not entertainable unless and until the condition precedent laid down in the above rule is fulfilled i,e, surrender first, entertainment of petition later. In Chan Shah v. The Crown FLO 1956 FC 43), it was observed:-- We cannot conceive of a more flagrant violation of this condition than ca3e---like the present--- where the individual seeks the interference of the Sovereign to obtain revision of a judicial order, when he is himself engaged in setting that judicial order at naught'." The concluding passage in the case of Chan Shah (supra) reads thus:-- "It follows, from what has been said above, that Attorneys and Advocate who appear to present petitions, on the criminal side---other than those which lie as of right----are under duty to see that they are acting in furtherance of justice. It seems to us that this duty is clearly violated when aid, for securing interference by this Court with the judicial order, is given by these officers of the Court to persons who, to their knowledge, are in contempt, i,e, as fugitives from justice, without at the same time ensuring that such persons conform to the judicial orders applicable to them. In the present case, the minimum requirement, in relation to this Court, was that the Attorney should have taken steps to secure the appearance of the petitioner before this Court on the first day that the petition came up for hearing. He may, at the same time, have moved. Through counsel, for an order suspending execution of the High Court sentence. The course adopted by the Attorney in the present case was, in our opinion, not in accordance with his proper duty." However, the case of Benazir Bhutto was found on different footing and it was observed as under:- - "The case of the appellant, however, stands on a different footing inasmuch as, she was out of the country with leave of the Court. She was not required to furnish any bail bond. There was no restraint on her from the Ehtesab Bench to travel aboard during the pendency of the trial. She was convicted and sentenced in absentia. Subsequent to her conviction and sentence rendered in Ehtesab Reference No,30 of 1998, her personal attendance had been dispensed with the Ehtesab Reference No,28 of 1997, pending before the Ehtesab Bench of High Court Sindh at Karachi, by a Bench of this Court, comprising of three Hon'ble Judges vide order, dated 17-5-1999, passed in Criminal Miscellaneous No,140 of 1999 in/and Criminal Petition No,100 of 1999 entitled: "Mohtarma Benazir Bhutto, M.N.A v. The State through Chief Ehtesab Commissioner, Islamabad authored by (Irshad Hassan Khan J.), wherein it was inter, alia observed:-
6. Ch.Muhammad Farooq, learned Attorney-General submitted that ordinarily the petitioner may be entitled to exemption from attending the Court but during the pendency of the Ehtesab Reference No,28 of 1997, pending before the High Court of Sindh, at Karachi, she has been convicted in Ehtesab Reference No,30 of 1998 and has not come back to Pakistan, therefore, this circumstance disentitles her to claim exemption.'
(7) Be that as it may, it is an admitted fact that the petitioner has been travelling abroad with the permission of the Court. Her Passport has been returned by the learned Ehtesab Bench and the petitioner has been attending the Court as per directions of the Court, after making adjustments in the dates of hearing in case pending against her in Sindh and Punjab. It is not the case of the learned Attorney-General that before announcement of the final verdict in Ehtesab Reference No,30 of 1998, she was required by the Court to be present at the time of the announcement of the judgment and she failed to do so. Thus, visualized, prima facie, this circumstance simpliciter does not disentitle her for consideration of her application on merits.'
"When faced with this, the learned Attorney-General frankly submitted that her personal attendance may be dispensed with before learned Ehtesab Bench in view of the undertaking in her application dated 25-3-1998, vide paragraph 8 thereof which states that she will be attending the Court whenever required to do so by the learned Ehtesab Bench but in her absence her panel of Advocates will be attending the Court as already undertaken by them and authorized by her in writing by her'."
14. In the case reported in 1998 PCr.LJ 1486 Muhammad Rafiq and 18 others v. The State, however, a different view was taken and it was held that an appeal is a fundamental right and a continuation of proceeding, as such; when a person could be tried in absentia his appeal can be heard in his absence. The relevant observation is reproduced hereunder:-- "The appeal is a fundamental right and is a continuation of proceedings, when a person can be tried in absentia, there is not reason as to why his appeal could not be heard as such. The word trial' includes proceedings in appeal. For this reference can be made to the case of Indian Jurisdiction i,e, State of Madhya Pradesh v. Mohan Das 1992 PCr.LJ 101 at 104 and 105. In fact in the Act two rights have been provided to the accused. Firstly he can appear before the Special Court and explain his absence and if satisfactory explanation were offered, the Court would set aside the conviction and would proceed afresh. Second right is under section 7 of the Act. He can prefer appeal before the High Court. It is pertinent to point out that, in section 7 of the Act, the words used are 'shall have a right of appeal'. It means that an accused can, after conviction, prefer appeal to the High Court despite the fact he remained absent before the trial Court. The only difference would be that if he appeared before the trial Court, he would have right for fresh trial and could take all the 'pleas in difference available to him, while in case of appeal only the material available on record would be examined. Nothing is provided in section 7 of the Act that, before preferring appeal, the accused was required to surrender before the Appellate Court. In the case of Muhammad Aslam and 5 others v. The State 1972 SCMR 194, Hon'ble Supreme Court in a murder case after having recorded the finding to the effect that prosecution had failed to prove its case beyond reasonable doubt acquitted all the appellants including one, who during pendency of appeal, had absconded away and his acquittal was recorded in absentia. In another case reported as Muhabat Ali and another v. The State 1985 SCMR 662. Honourable Supreme Court while setting aside conviction of the appellant recorded under section 302/34, P.P.C.
Also set aside the conviction of non-appearing convict and ordered for his acquittal. In the case of Ghulam Bari v. Waqar Zaheer and others PLD 101 SC 447. It was held by Honourable Supreme Court that benefit of acquittal can also be extended to the non-appealing convict for the purpose of doing complete justice. Accordingly, we hold that the appellants have legal right to file this appeal." As such; the appeals filed on behalf of absconding accused Altaf Hussain and others who were tried in absentia and convicted, were entertained and decided on merits.
15. In another case PLD 1991 SC page 575 the Hon'ble Apex Court entertained the appeal of an absconder and decided the same on merits who had absconded from the jail during the pendency of appeal Which was duly lodged when he was in custody and a counsel was appointed by the Hon'ble Apex Court on his behalf as the appeal was filed through jail authorities.
16. The survey and overall rationale of the above-quoted judgments as can be gathered is that where an accused was fugitive from law and had not surrendered to the process of law, appeal was not entertained and was dismissed by refusing right of audience to the absconder. However; appeals of the accused persons who had absconded after duly lodging appeals, were heard on merits and decided accordingly. Similarly in the case of Mohtarma Benazir Bhutto the appeal was entertained by the Hon'ble Supreme Court as she was exempted from appearance during the trial and had gone out of country with the permission of the Court. However; in the case reported in 1998 PCr.LJ page 1486 supra the appeal was entertained on behalf of absconders/fugitives from law on the ground that appeal being a continuation of trial was a substantive right and can be heard on merits. It may be observed that there is no cavil with the proposition that the appeal is continuation of trial but at the same time the appeal is a creation of statute and if no appeal is provided under any statute, it cannot be entertained on the ground,that the same is continuation of trial. Similarly prior to the deciding of appeal on merits, certain procedure laid down by the law has to be followed. No doubt; section 7 of the Suppression of Terrorist Activities Act, 1975 and section 25 of the Anti-Terrorism Act, 1997 provide right of appeal against an order of the Special Court but at the same time section 419, Cr.P.C. Which in our considered view is applicable and regulates the appeals filed under the above mentioned statutes being not inconsistent with the provisions of the above-referred Acts, therefore, an appeal can be presented by the convict himself or by his duly appointed counsel. Admittedly when a person is fugitive from. Law, he cannot present appeal himself, hence; the question is whether any counsel can present appeal on his behalf on the ground that an Attorney has been executed in his favour by the absconder or by any of his relatives.
17. In Chan Shah's case the Honourable Apex Court refused to entertain appeal filed by counsel (Attorney of the Apex Court) in whose favour the convict had executed the power of attorney and dismissed the same. Similarly in case reported in PLD 1969 SC 89 the Hon'ble Apex Court observed that the High Court should have dismissed the appeal having not been properly lodged instead of deciding the same on merits as the same was presented on the basis of Power-of-Attorney executed by a fugitive from law.
18. In another case reported in PLD 2002 Lahore 74 the High Court refused to entertain the appeal filed by the third person (daughter of the convict) on behalf of the convict who was tried in absentia and convicted. It would be advantageous to reproduce the relevant observation:-- "It is settled principle of law that if law provides a thing to be done in a particular manner it ought to be done in that manner or not at all. The appellant's learned counsel has laid emphasis on the principle that any procedure which is not prohibited under the law is deemed to be permitted, therefore, even a third person can file an appeal. The question as to who can file an appeal primarily falls within the realm of substantive and not the procedural law. Therefore, the principle that a procedure not expressly prohibited is deemed to be allowed cannot be pressed into service to clothe a third person with a right to file an appeal on behalf of the convict. For the above reason, the judgment in the case of Nur Elahi (relied upon by the appellant's learned counsel) is of no avail to him." It was further observed in the above-referred case:-- "There is yet another difficulty in entertaining the present appeal. Under the law a convict is bound to surrender before the Court to undergo the sentence of imprisonment passed against him/her.
The convict who becomes a fugitive from the law is not entitled to invoke the provisions of section 32 of the Ordinance to challenge his conviction."
19. Similarly in case reported in PLD 1982 SC 294' the Hon'ble Supreme Court refused to hear the counsel who appeared on behalf of the absconder by observing that respondent lost right of hearing due to intentional non-surrendering and defiance of Court process.
20. Thus, it is crystal clear from the above-referred judgments that any appeal filed by a counsel or relative on behalf of a person who is 'fugitive from law, is not competent nor the same can be treated as having been competently instituted.
21. Here, we; may mention that keeping in view the direction made by the Hon'ble Federal Court to the counsel of Chan Shah to present him in the Court, we, also asked the learned counsel appearing on behalf of the appellants whether the appellants are ready to surrender before this Court or can they make their presence available but they showed their inability. Similarly in Criminal Appeal No,97/2002 the learned counsel appearing on behalf of the appellants was to cause the attendance of the appellant in Court but he failed to do so.
22. Ordinarily the trial is conducted in accused's presence or in presence of his counsel, if his personal attendance is exempted. Under section 353, Court is required to take down all the evidence in the presence of the accused and if his personal attendance is dispensed with, then in presence of his counsel except specifically provided such as, in case of absconsion the trial Court is competent to record the evidence of prosecution witnesses in absence of accused under section 512, Cr.P.C. Similarly under section 366, Cr.P.0 the judgment is required to be delivered in presence of accused except in the case where his personal attendance is dispensed with and the sentence is one of the fine only or he is acquitted. However, a deviation was made from the above general principle in the Suppression of Terrorist Activities (Special Courts) Act, 1975 and Anti-Terrorism Act, 1997 which provide for trial of the absconder accused in absentia and also empowers the Court to convict or acquit the accused on the basis of evidence recorded in his absence.
23. We, may observe that Act XV of 1975, was promulgated in the year 1975 and according to preamble of the Act, the object of promulgating the Act was, for suppression of sabotage, subversion, terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with above mentioned acts. Similarly Anti-Terrorism Act, 1997 was promulgated for prevention of terrorism, sectarian violence and for speedy trial of heinous offences. The Act of 1997 was initially applicable to certain parts of the country, however, in the year 2001 it was extended to the whole of the Pakistan. Under section 6 of the Anti-Terrorism Act, the offence which is committed with the intention to create fear or sensation or insecurity in the general public as defined in section 7 of the Act are triable by the Courts established under Anti-Terrorism Act, 1997. Both the Acts provide for trial of the accused in absentia, if he had absconded and did not surrender to the process of law. Under the Act of 1997 the Court had also been empowered to try a person in his absence though being in custody but during trial his behavior was such as to impede the Courts of Justice. This provision contained in clause (b) of subsection (10) of section 19 was examined alongwith other provisions of the Anti-Terrorism Act by the Hon'ble Supreme Court in the case Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and the Hon'ble Supreme Court held that section 19(10) of the Act which provides for trial of the cases in absentia on account of accused misbehavior in the Court is violative of Article 10 of the Constitution and declared the same invalid.
The Hon'ble Apex Court reasoned the above conclusion as follows:-- "Though most of the leanred counsel for the petitioner assailed section 19 as a whole, but we are of 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 authorises 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. Aziz Ullah Memon (PLD 1993 SC 341)
(supra) and Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) (supra) that the right of access to justice is a 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." The object as evident from the preamble of both the Acts, was to curb the heinous offences, terrorism ethnic violence or the offences directly affecting the society and creating a sense of insecurity or fear in the general public by way of speedy trial, therefore, a provision was provided in both the Acts authorizing the Courts to try the accused in absentia who after commission of offence intentionally abscond and do not surrender to the process of law. However; in order to ensure a fair trial it was made obligatory upon the Courts to provide assistance of a counsel during the trial when an accused person despite publication of proclamation in daily newspapers did not appear and defend himself. It may be noted that every accused person, who is facing trial, is presumed innocent until and unless found guilty by the Court after a proper trial, but after conviction such a presumption does not exist and a convicted person is presumed to have committed the offence. In both the Acts the Legislature appears to have not intentionally provided that an appeal can be filed by an absconder without surrendering through a counsel or relative on his behalf and omission in the statute palpably, as we see, has been based on the wisdom that one who seeks interference in the judicial verdict from a higher forum of law is to first himself submit to the process of justice. It is settled principle of law that a thing must be done as law provides, otherwise it should not be done at all. If an absconder is allowed to file appeal as of right without surrendering, the very object of promulgating both the Acts would be frustrated and instead of removing the sense of fear and insecurity amongst the general public, it would rather; increase the same. It is matter of common knowledge that the people are generally reluctant to come forward to give evidence against the culprits for the reasons that they fear insecurity to their person and property at the hands of desperate criminals. If to an accused who after commission of offence has absconded and did not surrender to the process of law, is given a right to file appeal without submitting to the process of law, same would create more sense of insecurity in the society than curb the same; resultantly not only the object for which these two laws were promulgated but the confidence of the public as well in the process of law will also stand shattered.
24. It may be noted that under Article 10 of the Constitution of Pakistan an accused person has a right to be defended by the counsel of his choice if he is 'arrested, brought or appeared before the Court. Similarly under section 340, Cr.P.C. An accused person has been given a right to be defended by a counsel of his choice is in consonance with the above mentioned Article of the Constitution. Nowhere in Constitution or in Cr.P.C. It has been provided that a fugitive from law can have recourse to law by challenging his conviction through a counsel of his choice; merely because section 11-A was added in Anti-Terrorism Act, 1997 after the pronouncement of judgment in Mehram Ali's case in order to bring the Act in conformity with Article 10 of the Constitution of Pakistan which provides that nothing contained in subsections (10) and (11) of section 19 shall be construed to deny the accused the right of consulting or to be defended by a legal practitioner of his own choice, but it does not mean that an accused person who decamps, has an indispensable right to be defended by a legal practitioner of his choice, without surrendering to the process of law. In our considered view in such a situation the fundamental rule of administration of justice viz. a person seeking aid of justice in a criminal case should submit to the due process of justice, will be applicable.
25. For the foregoing reasons and discussion, we are in respectful agreement with the observation made in case-law reported in 1999 P.Cr.L.J 1381, reproduced hereinbelow:-- "We do not subscribe to the view that merely because in a certain situation trial of an accused can be held in absentia by a Special Court, there is no obligation on the convict to surrender to the process of the law before filing an appeal. It is inherent in the very scheme of administration of criminal justice that after conviction, an accused, if on bail, has to be taken into custody and lodged in jail to undergo the sentence. If a licence is given to accused persons to decamp on conviction and still avail of the remedy of appeal, this would encourage lawlessness and might lead to ugly situation in Courts and add to the problems of law enforcing agencies. That is why superior Courts in our country have taken the view that an individual seeking review of a judicial order must surrender to the process of law and if he decamps, he loses right of audience and his appeal can be dismissed and sentence of death confirmed on merits in his absence. The question regarding fate of the appeal of an absconder must be decided in the light of the peculiar facts and circumstances of the case, the scheme of the law and the dicta laid down by the Honourable Supreme Court of Pakistan in the cases of Chan Shah, Gul Hassan, Hayat Bakhsh, Allah Bakhsh and Zahid lqbal, discussed above."
In the light of what have been discussed above, in our considered view the appeals filed on behalf of the convicts/absconders who have not surrendered to the process of law after their conviction are not competent nor the same could be filed by the! Counsel in whose favour statedly attorneys were executed or by their relatives, as such; all the above mentioned appeals having been incompetently filed and not maintainable under law are dismissed accordingly.