Ali Nawaz Chowhan, J.--This appeal arises on account of the judgment dated 28.9.2000 passed by Mr. Hassan Mubrur, learned Judge of the Special Court (established under the Suppression of Terrorist Activities Act, 1975), Gujrat. Whereby he convicted the appellant Khalid alias Libru under Section 302(b) PPC read with Section 5-A(4) of the Suppression of Terrorist Activities Act, 1975, for the Qatl-e-Amd of Idrees and sentenced him to death. He also directed him to pay compensation amounting to Rs, 1,00,000/- to the legal heirs of the deceased, or to further undergo rigorous imprisonment for two years in lieu thereof. His co-accused Ilyas was, however, acquitted.
2. The matter arises on account of case FIR No, 64 dated 28.2.1995 registered under Sections 302, 109, 34 PPC, at Police Station Kunjah, District Gujrat.
3. In this case the appellant was present when the charge was framed on 15.12.1999 and he pleaded not guilty to the charge. He remained present before the trial Court until 9.5.2000. On 17.5.2000 he sent an application reflecting that he is sick and, therefore, the case was adjourned to 30.5.2000.
On this date, he submitted an application for exemption of his appearance for said date due to his ailment which was allowed. On 5.6.2000, which was the next date, on another of his application he was allowed leave and the presence of his counsel was counted towards his presence.
4. When on 17.6.2000 he again absented himself, the order allowing him bail was withdrawn and his warrant of arrest was issued. Subsequently we find that perpetual warrant of arrest was issued against him and action was also taken against his surety. On 4.7.2000 Ch. Riaz, Advocate was appointed as a State Counsel on his behalf and the proceedings continued. His counsel continued to appear in subsequent proceedings. On 15.9.2000 statement of the Investigating Officer was recorded and the case was adjourned to 19.9.2000 for recording of the statement of the accused under Section 342 Cr.P.C. On this date, Khalid alias Libru appellant (accused) did not appear in person rather his counsel recorded statement on his behalf and the matter was fixed for arguments on 27.9.2000 and later the judgment was announced on 28.9.2000.
5. This Court was informed that after the announcement of the judgment, the appellant applied for setting aside of the judgment before expiry of 60 days prescribed u/S. 5-A (7) of the STA Act, 1975, so that he may join the proceedings from where he left, but this was disallowed. He has-now filed this appeal and we are told that he has been arrested for undergoing the sentence.
6. Learned counsel for the appellant has stated that the evidence which was recorded during his absence, has to be recorded afresh and he has also be given the opportunity under Sections 342 & 340(2) Cr.P.C. being mandatory provisions. That his counsel could not substitute him for his statement under Section 342 Cr.P.C.
7. Learned counsel for the complainant side stated that this was not a case where the accused had absconded from the proceedings altogether. In this case he had been joining the proceedings and remained with his counsel when the eye-witnesses recorded their statements and started absenting himself deliberately from the time the Investigating Officer had to record his statement.
That because of his conduct, he deserves no concession particularly when a senior counsel was defending him before the trial Court and who had been cross-examining the witnesses thoroughly and in full length and it is nowhere on record that he withdrew his Power of Attorney in his favour, besides the State Counsel appointed on his behalf was also there. It appears that the trial Court did follow some procedure with respect to Section 5-A of the Suppression of Terrorist Activities Act, 1975, but could not issue the required proclamation. The question is whether it had become mandatory for him to follow the procedure in entirety as envisaged by Section 5-A of the STA Act, 1975, under the circumstances of the case. The answer is in the negative because the appellant started absenting himself in the midstream but had his representation through his counsel who did cross-examine the witnesses thoroughly and professionally and there is nothing to suggest any prejudice having been caused to the appellant in this connection. But of course there were two opportunities i,e, u/Ss. 342 and 340(2) Cr.P.C. where he had to record his statements. His counsel could not substitute him for recording of the statement under Section 342 Cr.P.C. Unfortunately, his counsel answered all interrogatories and did not object to the absence of the appellant in this connection. Learned counsel for the appellant, however, refers to one of the questions put to the counsel which pertained to his abscondence. Wherein, his learned counsel stated that he was not in contact with the appellant and could say nothing about it. Building up his argument on this fact, the learned counsel stated that it - became all the more necessary for the Court below to wait still further for the appellant to record his statement. That his counsel had stated certain facts which although cause no .prejudice to the appellant but yet were not based on full information/instruction from the appellant.
8. Putting interrogatories to a counsel under Section 342 Cr.P.C. was a bit strange because in case Section 5-A of the STA Act, 1975 was being applied then it should have been applied in letter and spirit when the recording of the statement under Section 342 Cr.P.C., in the circumstances of the case, was not necessitated.
9. The appellant, anyway, did appear subsequently but was not successful in getting the judgment set aside. Learned counsel states that he was now willing to record his statement under Section 342 Cr.P.C. and to also make a statement whether he wished to appear as his own witness under the provision of Section 340(2) of the Cr.P.C.
10.Reference in this connection is also made to Section 5-A(7) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. Which reads as follows: "If, within sixty days from the date of his conviction, any person tried under Sub-section (4) appears voluntarily or is apprehended and brought before the Special Court, and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceeding against him, the Special Court shall set aside his conviction and proceed to try him for the offence for which he is charged."
11. Sections 342 and 340(2) Cr.P.C. are valuable rights which accrue to an accused for explaining incriminating evidence standing against him as well as for defending himself in his capacity as a witness. These are basic rights.
12.We, therefore, feel that an opportunity ought to be provided to the appellant with respect to his examination under Section 342 Cr.P.C. or for his appearing as his own witness under Section 340(2)
Cr.P.C. so that he is left with no grievance of having not been heard personally.
13.We are, however, of the view that statements of all the witnesses appearing on behalf of the prosecution and who having been thoroughly cross-examined on dates when the appellant appeared and later when he absented himself, should remain intact.
14. Learned counsel for the complainant side prompted in to say that in view of the conduct of the appellant he can say that he would delay the case further if it is remanded to the trial. Court. In view of this apprehension, we are putting a safeguard by fixing a periphery of time for recording statements u/S. 342 or u/S. 340(2) Cr.P.C. while directing the trial Court to record these statements on the first day the appellant appears and to re-write the judgment thereafter and while ensuring that the whole exercise does not take more than 3 weeks from the date of the receipt of this judgment. In case the appellant does not co-operate, it will be deemed that he has surrendered his such right. Whereas, we are now bound to set aside the judgment of the trial Court but with the condition that until a fresh judgment is given by the trial Court in view of our above observations, the appellant shall not be released. The appeal is disposed of accordingly.