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Criminal Appeal No. 208 of 1986, heard on 16th December, 1986.

‑‑‑S. 5(4)‑‑Trial in absentia, validity of‑‑No serious effort made for arrest of accused nor process‑server examined to prove that accused deliberately avoided his arrest‑‑Held: There was hardly any reason for Trial Court to proceed with trial of case in absence of accused, in circumstances‑‑Conviction and sentence set aside and case remanded for proceeding in accordance with law.

Rashid Akhund for Appellant.

A.S. Pingar for the State.

Date of hearing: 16th December, 1986.

‑‑The appellant was convicted by the Special Court for Banking Offences in absentia and he was sentenced to suffer R.I. for four years and pay fine of Rs.7,50,000 or to suffer R.I. for one year under section 477‑A, P.P.C. He was acquitted under section 477‑A, P.P.C. The order was passed on 30th September, 1986.

Mr. Rashid Akhund, counsel for the appellant has submitted that the trial of the appellant in absentia was not justified. Mr. A.S. Pingar on the other hand has submitted that the appellant was an absconder and fugitive from justice and, therefore, trial in absentia was justified, in view of section 5(4) of Ordinance IX of 1984. The arguments on merits have not been advanced because the appellant's counsel confined himself to the preliminary point of appeal that the appellant was convicted without hearing being provided and reasonable opportunity to defend himself. In order to examine the merits of the contentions, we have perused the order sheet of this case right from 27‑4‑1985. The appellant was shown as an absconder in the challan received by the Court on 6‑ 4‑ 1985. The offence was stated to have been reported on 8‑2‑1982 and the F.I.R. was lodged on 2‑3‑1982.

On 27‑4‑1985 the accused was called absent. He had been challaned with an other co‑accused Sher Muhammad. Non‑bailable warrants were issued against both the accused. On 23‑5‑1985 Rehmat Shah Head Constable was examined as process‑server who stated that he had tried his best to arrest Muhammad Arab Khoso and Sher Muhammad but they were not available at given addresses and according to his information soon after the lodging of F.I.R. in this case they ran away from the bank where they were working and are not traceable ever‑since.

However, on 6‑8‑1985 P.Ws. Jamaluddin and Muhammad Ali had appeared before the Court and they had stated that both the accused were available at Sehwan and Arazi Village. Therefore, the trial Court issued non‑bailable warrants against both the accused and gave them to the Assistant Director, F.I.A., who was present in the Court at that time. On 23‑9‑1985 N.B.Ws. were returned unserved with the endorsement that accused Muhammad Arab Khoso is stated to have gone to Islamabad for two weeks. The trial Court was pleased to issue fresh N.B.Ws. On 13‑ 10‑ 1985 the N.B.Ws. were not returned and the trial Court issued fresh N.B.Ws. for service upon the accused through Deputy Director F.I.A. Hyderabad. On 18‑1 I‑1985 a counsel for Sher Muhammad, co‑accused of the appellant, undertook to produce Slier Muhammad. The appellant Arab Khoso however, was called absent but there was no, report about the service of process against him and no process‑server was present. On 23‑ 12‑ 1985 and 7‑1‑1986 both the accused were called absent but no process‑server was ever examined. On 7‑1‑1986 the trial Court observed that both accused could not be tried together, therefore, on 23‑ I‑1986 two separate charge‑sheets were presented by prosecution against the appellant as well as Sher Muhammad.

On 28‑1‑1986 the trial Court framed charge against appellant Muhammad Arab Khoso under sections 408 P.P.C. and 477‑A, P.P.C. for committing criminal breach of trust as bank employee of Rs.3,53,081 which have been received from customers and not deposited in the bank. On 7‑7‑1986 and afterwards P.Ws. were examined and the appellant wasconvicted in absentia.

We are of the view that the statement of Rehmat Shah Head Constable in respect of absconcion of the present appellant recorded on 23‑5‑1985 can hardly be regarded as the basis of an opinion that the appellant was deliberately avoiding to attend the Court or to impede the course of justice, because on 6‑8‑1985 statement had been made by P.Ws. then present in Court that the appellant was available at Sehwan and Arazi village. On that base the trial Court had issued the fresh N.B.Ws. against the appellant but thereafter no one had reported that the appellant was deliberately avoiding his arrest in order to impede the course of justice. Not only that but the report has been received on 23‑9‑1985 that the appellant had gone to Islamabad for two weeks. The issuance of N.B.W. by the trial Court on 23‑9‑1985 showed that the Court by then had not formed an opinion that the appellant was deliberately avoiding the process. No process was received in respect of Arab on 18‑11‑1985 when he was called absent and even if a process had been received that it was not possible to arrest the appellant Arab, it was incumbent for the Court to examine the process‑server in order to form an opinion that the appellant was deliberately avoiding the process but there is no such statement on record. Nor is found anywhere an opinion consciously recorded by the learned trial Court either on 18‑11‑1985 or on 23‑12‑1985 or for that matter on 7‑ 1‑ 1986, 23‑1‑1986 or 28‑1‑1986 in the Court diary that the appellant was deliberately avoiding the service of process. The charge framed against the appellant in his absence on 28‑1‑1986 was, therefore, completely un justified. We also found that on 28‑1‑1986 as well as 16‑4‑1986 fresh N.B.W. against the appellant were issued but again nowhere we had found any discussion in the order‑sheet or the judgment as to what had happened in respect of those N.B.Ws. except that the accused had been called absent and thereafter the same thing has been repeated.

We are, therefore, of the view that there was hardly any reason for the trial Court to proceed with the trial of the case in the absence of the accused when no serious effort had been made for their arrest and particularly when no process‑server had been examined to prove that the appellant was deliberately avoiding his arrest and, therefore, impeding the course of justice. Accordingly the conviction and sentence recorded against the appellant is set aside but the case is remanded back for trial to the trial Court in accordance with law. It may be stated here that the appellant had surrendered himself before this Court and is in custody. The appellant's Counsel wanted bail for the appellant. He can however, move for the bail before the trial Court. The record and proceedings of the case be sent back immediately to the trial Court.

S.G.D./M‑50/K Order accordingly.

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