1. ' GHULAM NABI SOOMRO, J.--- By this common judgment we would dispose of Criminal Revision No,149 of 2003 and Special Anti-Terrorism Appeal No,42 of 2003.
2. ' The three convicts namely, Leemon, Darya Khan and Mumtaz, appellants in the connected appeal were convicted in absentia under sections 365-A, 148 and 149. P.P.C., read with section 7 of Anti- Terrorism Act, 1997, by the learned Anti-Terrorism Court No,1, Sukkur, vide its judgment dated 1-4- 2003. They filed appeal on 22-8-2003.
3. ' After passing of the judgment the appellants surrendered before the trial Court on 5-5-2003 and were remanded to custody. However, on that date the appellants made an application before the learned trial Court praying for retrial of their case on the grounds that they did not know about the pendency of the case and they were informed about such judgment passed against them, by some of their co-villagers.
4. ' Such application of the appellants having been dismissed by order dated 4-8-2003: the appellants have challenged the order through the above noted Revision.
5. ' We have heard Mr. Abdul Haleem Pirzada, learned counsel for the applicants/appellants and Mr. Habib Ahmed, learned A.A.-G. For the State, perused the record and the order impugned in the revision as also the judgment of convictions.
6. ' Mr. Abdul Haleem Pirzada submits that the applicants had been released by the police at the conclusion of the investigation and the case against the applicants was disposed of under B-Class to which S.S.P. Of the District had also agreed. It was further argued that the applicants did not evade the process of law and were not avoiding appearance before the trial Court deliberately. It was also urged that the applicants were also unaware about the publication through newspapers, being illiterate village people and they were never served by process issued by the trial Court.
7. Lastly, that the trial Court has fallen in error in arriving at correct appreciation of the provisions contained in subsection (12) of section 19 of the Anti-Terrorism Act, 1997.
8. ' Mr. Habib Ahmed, learned A.A.-G., for the State submits that the applicants had knowledge of the proceedings pending against them. Also that they have filed Criminal Revision Application before the Sessions Court against the order passed by the learned Magistrate. For the purpose of proper appreciation of subsection (12) and section 19 of the A.T. Act, the same is reproduced herein below:-- "Section 19(12) If, within sixty days from the date of his conviction, any person tried under subsection
(10) appears voluntarily, or is apprehended and brought before 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 a case in which a person as aforesaid appears before it after the expiration of the said period and satisfies it that he could not appear within the said period by reason of circumstances beyond his control."
9. ' It is an admitted position that the applicants surrendered voluntarily before the trial Court within a period of sixty days and prayed to the Court for their retrial. There is nothing on record to show that they were ever served with process of summons, B.Ws. Or N.B.Ws. There is further nothing to show that the newspaper is received by any one in the village of the applicants. There is also nothing on record that the applicants are even literate.
10. ' There is no denial of the fact that the applicants were released at the conclusion of the investigation as innocents and the case against them was disposed of under B-Summary. The learned trial Court in the impugned order has also observed that the applicants were watching the proceedings during the trial and surrendered as soon as they heard about the conviction.
11. ' From the above resume, we have arrived at a considered conclusion that the applicants did not abscond or conceal themselves for the purpose of avoiding the proceedings against them.
12. ' Resultantly the revision is allowed and the impugned judgment is set aside. The conviction and sentence recorded against them are set aside. Applicants shall be put to fresh trail in accordance with law.
13. ' At this stage, Mr. Abdul Haleem Pirzada submits that the Anti-Terrorism Court No,II, Sukkur is being presiding by the same learned Judge, who passed judgment of conviction. He requests that the case against the applicants be ordered to be tried by a Court other than the Presiding Officer of the Anti-Terrorism Court No,II Sukkur. The learned A.A.-G. Has no objection to such prayer. Accordingly, we would direct that the applicants trial shall be held by the Anti-Terrorism Court No,I, Sukkur.
14. ' In view of the above the Special Anti-Terrorism Appeal No,42 of 2003 has become infructuous and stands disposed of accordingly.
15. Revision .