Mohammad Arif vs The State through Additional Advocate General Azad
The instant criminal appeal is directed against the judgment of the District Court of Criminal Jurisdiction, Bhimber dated 30.06.2018, whereby the appellant was convicted under sections 302(c) and 341 of the Azad Penal Code and sections 13/20/65 of the Arms Act. The core legal question addressed is whether a criminal appeal can be maintained and filed on behalf of a convict who has been convicted in absentia without first surrendering before the court. The Shariat Appellate Bench held that an appeal filed in absentia by a convict is not maintainable without the appellant surrendering. The key principle laid down is that a convict sentenced in absentia must surrender before the court before their criminal appeal can be entertained or maintained.
- Is a criminal appeal maintainable when filed on behalf of a convict who was convicted in absentia without surrendering?
- Can an appellant challenge a trial court conviction without surrendering before the appellate court?
- Section 302(c), Azad Penal Code
- Section 341, Azad Penal Code
- Section 13, Arms Act
- Section 20, Arms Act
- Section 65, Arms Act
RAJA SAJJAD AHMAD KHAN, J.---Above captioned appeal has been direc ted against the judgment of District Court of Criminal Jurisdiction, Bhimber dated 30.06.2018, whereby the appellant was convicted and awarded sentence of 25 years' Rigorous imprisonm ent in offence under section 302(c), A.P.C. and one month imprisonment in offence under section 341, A.P.C. He was further convicted and awarded five years' RI with fine Rs.10,000/-in offence under sections 13/20/65 of the Arms Act and awarded sentence of Rs.5,00,000/- (five lac rupees) as compensation to the legal heirs of the deceased.
2. For the sake of brevity I am not inclin ed to narrate the brief facts of the instant appeal because it has to be decided on technical ground.
3. It is proper to mention here that convict-appellant was allowed bail by this Cour t on 11.11.2016, however , at the time of announcement of judgment in the trial Court, he was convicted and awarded sentence in absentia.
Thereafter , an appeal has been moved on his behalf by his counsel without surrendering the convict-appellant before this Court. Therefore, an appeal in absentia is not maintainable without surrendering. Our this view finds support from PLD 2004 Quetta 39 [Case titled Qadir Bakhsh and others v. The State and another ] wherein it was held that:- "Before dilating upon the respective conte ntions of the learned Counsel for the parties, it is worthwhile to mention here that, many appeals against the judgments of the Anti-T errorism Courts, were assailed by numerous appellants, who were convicted in absentia and to resolve the controversy; whether appeals can be filed by convicts in absentia, the matter was referred to a larger bench of this Court. The said bench heard all the appeals and through a consolidated judgment dated 17th June, 2003 held that, an appeal in absentia is not maintainable without surrendering."