Abdul Hakeem S/O Khan Muhammad vs The State Through Prosecutor General

Balochistan High Court · 2021 · Before Hon'ble Justice Muhammad Kamran Khan Malakhail

Appeal is directed against the judgment dated 10th September 2014 (“impugned judgment”) passed by the Court of Special Judge, Anti- Terrorism Court, Khuzdar, whereby the appellant along with the co- accused after being declared proclaimed offenders, was convicted under Section 302, 324, 436, 427 PPC read with Section 07 of Anti- Terrorism Act 1997 and sentenced to death for 08 counts with fine of Rs.100,000/ - (Rupees one hundred thousand only) and was also convicted under Section 21-L of ATA 1997 and sentenced to suffer rigorous imprisonment for five (05) years with fine of Rs,. 100,000/- (Rupees one hundred thousand only).

2. Briefly stated facts of the case are that on 02nd November 2013 at 03:30 PM the complainant SI/SHO Abdul Qadir Qambrani registered report at police station City Khuzdar , averring therein that on the same day at about 01:45 PM the appellant Abdul Hakeem alongwith other accused persons namely Saadullah son of Haji Muhammad Yaqoob, Muhammad Alias son of Noor Muhammad, Samiullah son of Haji Abdul Hakeem made firing upon the shop of Criminal ATAAppeal No. 472 of 2021. - 2 - Only for viewing purpose. Contact office for certified copy. Muhammad Ramzan and on a passenger Van with intention to kill the shopkeepers and passengers, due to which the five shops alongwith passenger van were burnt, and several persons died at the spot due to ignition and some persons sustained injuries, therefore, the instant FIR was lodged. The learned trial court on conclusion of trial passed the impugned judgment, whereby the appellant alongwith other accused persons was convicted in absentia as mentioned herein above and was also convicted under Section 21-L of ATA 1997, which judgment is being impugned herein.

3. The learned counsel for the appellants contended that the appellant was unaware about the registration of the FIR against him and no notice/summon or warrant of arrest has ever been served upon him. He further contended that the proclamations published in newspapers were not in the appellant’s knowledge nor he heard from anyone that the case is registered against him and he has been declared proclaimed offender by the learned special court; that albeit the murder reference to the extent of co-accused Zubair Ahmed, was answered in affirmative by this court , but the Hon’ble Supreme Court vide judgment dated 27th September 2021, passed in Criminal Appeal No. 3-Q of 2020, acquitted the co-accused Zubair Ahmed, of the charge; that the case of the appellant is at par with to that of the acquitted accused Zubair Ahmed, therefore, he is liable to be treated in similar manner; the learned counsel placed reliance on reported judgments of the Hon’ble Apex Court in case titled ‘Mir Akhlaq Ahmed v. The State’ (2008 SCMR 951). He finally urged that in view of the dictum laid Criminal ATAAppeal No. 472 of 2021. - 3 - Only for viewing purpose. Contact office for certified copy. down by the Hon’ble apex court the trial in absentia is held as unconstitutional, thus, the conviction so recorded is not sustainable, therefore, the impugned judgment being passed in absentia may be set aside and case be remanded back to the trial court for trial afresh.

4. The learned Deputy Prosecutor General present on court’s notice, in view of the judgment rendered by the Hon’ble Supreme Court of Pakistan did not oppose the appeal.

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