GHULAM RASOOL Versus STATE
This appeal is directed against the judgment, dated 1st December, 1981 of the First Additional Sessions Judge, Larkana, whereby he convicted the appellant under section 362, P. P. C. and sentenced him to suffer R. I. for seven years. It has further been ordered that sentence to be executed when accused is arrested.
The brief facts of the prosecution case are that on 11th August, 1979 at 7-30 a.m. one Babbar went and informed his brother Shahhan that his four children were being abducted by the appellant on a bus. On getting this news, Shahhan Akhtar and Babbar went in search of children and found that the present appellant having knife in his hand and was compelling the children to got into the bus but they were weeping. On seeing complainant party, the appellant ran away. Shahhan went and lodged report under section 363, P. P. C. and 16 Zina Hudood Ordinance at Police Station Dokri at 11 a.m. After investigation the appellant was challaned.
3. Appellant was on bail before the trial Court but absconded since 3rd February, 1981. The learned First Additional Sessions Judge, Larkana, in his absence proceeded with the case on 18th October, 1981 and examined the complainant and the other witnesses, on 1st December, 1981 passed an order under section 512, Cr. P. C. and convicted the appellant under section 363, P. P. C. and sentenced him to suffer R. I. for seven years.
4. This appeal was filed after lapse of more than two years. It is also admitted that the appellant absconded during the trial.
5. While considering the point of admission of this time-barred appeal Mr. Nooruddin Sarki, learned counsel for the appellant cited cases 1981 S C M R 1; P L D 1951 Dacca 43. In a case of Rehman Gul v. The State (P L D 1971 Pesh. 1) it has been observed:-
"This appeal has been preferred much beyond the statutory period of 60 days of the period of limitation provided in law for filing the appeals to this Court. The appellant has neither made an applica tion nor has given any sufficient cause to condone the delay under the provisions of section 5 of the Limitation Act. The appeal is, therefore, obviously barred by time. After the perusal of the judg ment of the learned Sessions Judge and the record of the case, we were satisfied that a serious miscarriage of justice has taken place. We, therefore, for the furtherance of ends of justice are inclined to entertain this time-barred appeal, as it would be very hard in this case if the appellant, who is in jail, is deprived of the advantage of this appeal being heard on merits?." and further it has been held:-
"As earlier stated, serious miscarriage of justice has taken place, which in our view, should not be left unnoticed and unheard. We, therefore, for the ends of justice, in the exercise of our suo mote revisional powers under section 439, Cr. P. C. can treat this time- barred appeal as a revision wherein also we can exercise any of the powers of appellate Court under section 423, Cr. P. C."
In a case Jagandra Kishore Sirkar v. The Crown (P L D 1951 Dacca 43), it has been held that when appeal is received, it should not be dismissed merely because the appellant or his pleader failed to appear to support the petition; but the appellate Court must consider whether there exists sufficient grounds for its interference and must judicially determine the appeal on merits Supreme Court in a case of Hayat Bakhsh and others v. The State (1981 S C M R 1) held that if a person who is absconder and fugitive from law surrenders and shows cause in his behalf and he makes an application for grant of hearing the same be decided on its own merits.
6. Under these circumstances I admitted the belated appeal because it was pointed out that conviction is contrary to the provisions of law At the time of admission of this appeal the appellant was present and at that time be surrendered as a convict therefore I remanded him to custody and ordered that he should serve out the sentence.
7. I have heard Mr. Nooruddin Sarki, Advocate for the appellant and Mr. A. A. Mohamadally, Assistant Advocate-General appearing for the State. Mr. Nooruddin Sarki has argued that the trial Judge has erred in convicting the appellant on the basis of evidence recorded by him in the absence of accused. He has relied upon the case reported in P L D 1963 A J & K 86. Mr. A. A. Mohamedally supports this appeal and states that the case be remanded for retrial.
8. In the present case, the learned First Additional Sessions Judge, Larkana, examined complainant Shahhan, P. Ws. Babar Shahid and Aqleem Ahmed on 18th October, 1981 in the absence of the accused/ appellant and he awarded conviction on the basis of evidence as stated above. The evidence of witnesses in criminal cases to be recorded in the presence of the accused as provided under section 353, Cr. P. C. and copy of the judgment is to be given to the accused as contemplated under section 371, Cr. P. C. The appellant/accused has got right of cross-examination for which I refer to section 138 of the Evidence Act. All these legal requirements are missing. The appellant/accused was not present and had absconded. It is a requirement of law that conviction or acquittal can only be passed when all these mandatory provisions of law are complied with. The trial Court has erred in convicting the appellant and erroneously relied on provisions of section 512, Cr. P. C. The contents of this section are as under:-
"Section 512, Cr. P. C.--If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try (Send for trial to the Court of Sessions or High Court) such person for the offence complained of may, in his absence, examine the witness (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be pre-cured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable."
In this section the evidence recorded in absence of accused could only be considered after the arrest of the accused when witnesses so examined were incapable giving evidence or dead or his attendance cannot be procured without any amount of delay, expenses or inconvenience. The case has to proceed after the arrest of accused and evidence is to be taken in his presence as stated above. In these circumstances, the conviction of the appellant is contrary to law and is liable to be set aside. I, therefore, allow the appeal and set aside the conviction and remand the case for retrial. The learned Sessions Judge, Larkana, is directed to proceed with the case or make over to any other competent Court for disposal according to law. The appellant is in custody. His sentence was not suspended, therefore his position is that of a under-trial prisoner and has not been granted bail by this Court. He absconded while his case was proceeding, therefore, I direct the jail authorities to produce the appellant before the Sessions Judge, Larkana on 17th June, 1984 for trial. The appellant could move, bail application before competent Court having jurisdiction if so advised.
S. G. D. Order accordingly.