ZAMARUD KHAN vs The STATE
This matter comes before the Supreme Court of Pakistan via a petition for leave to appeal against a judgment of the Sind High Court, which had dismissed the petitioner's appeal as time-barred. The petitioner was convicted in absentia under section 471 of the Pakistan Penal Code by a Special Court and sentenced to rigorous imprisonment along with a fine. The core legal questions involve whether proceedings conducted ex parte without proper notice are void ab initio, whether a conviction can be sustained solely upon the exculpatory statement of an acquitted co-accused, and whether sufficient cause existed for the condonation of delay in filing the appeal. The Supreme Court held that the contentions raised deserved consideration, granted leave to appeal, and ordered the suspension of the petitioner's sentence alongside release on bail pending final disposal. The key principle laid down is that an appellate court should examine the merits and sufficiency of cause for delay when ex parte proceedings and convictions in absentia are challenged.
- Whether proceedings conducted ex parte and in the absence of the accused without notice are void ab initio?
- Can a criminal conviction be legally sustained solely on the exculpatory statement of a co-accused who was himself acquitted?
- Whether lack of knowledge of ex parte proceedings constitutes sufficient cause for the condonation of delay in filing an appeal?
- Section 471, Pakistan Penal Code 1860
ORDER
1. ABDUL KADIR SHAIKHJ.--This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court, dated 16-4-1986 by which petitioner's appeal was dismissed as barred by time. Petitioner's appeal was directed against the judgment of the Judge, Special Court of Sind, dated 13-12-1985 by which he was convicted in absentia under section 471, P.P.C. And sentenced to 3 years R.I. And fine of Rs.100,000.
2. Mr. Muhammad Hayat Junejo learned counsel appearing in support of the petition inter alia raised the following pleas in support of the petition
(a) That as the proceedings against the petitioner were conducted ex parte in his absence and without any notice having been received by him the entire proceedings were void ab initio; and the learned Presiding Officer of the Special Court had no jurisdiction to proceed against the petitioner in his absence without first holding that the conditions laid down in section 5(4) of the Ordinance were fulfilled in this case.
(b) That the case against the petitioner was one of no evidence; and as a bare perusal of the judgment of the trial Court would show his conviction has been based on the exculpatory statement of co-accused Shafiqur Rehman who was himself acquitted.
(c) That no conviction can be based on the statement of the co-accused as it was exculpatory as regards himself, and further, even if he had also involved himself, it would not have the quality of evidence and was only a matter to be taken into consideration to corroborate other evidence which had by itself to be legally sufficient to sustain a conviction.
(d) That the learned Judges in the High Court erred in not even considering the merits of the case before dismissing the appeal in limine on the sole ground of limitation.
(e) That as the proceedings against the petitioner were ex parte and he was not aware of the same, his appeal could not be barred by limitation; and in any case this was a sufficient cause for condonation of the delay.
3. The submissions advanced in support of the petition deserve consideration. We, therefore, grant the leave and allow the petition.
4. Pending final disposal of the appeal the sentence awarded to the petitioner shall stands suspended and he shall be released on bail on furnishing one surety of Rs.70,000 (seventy thousand only) and executing personal bond in the like amount to the satisfaction of the Nazir of the High Court.