ملزم کی غیر موجودگی میں سماعت مقدمہ پر نہایت معلوماتی فیصلہ

 TRIAL IN ABSENTIA.

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Trial in absentia (TIA) is a trial that is conducted in the absence of the accused and is an exception to the celebrated principle of natural justice audi alterem partum i.e. nobody should be condemned unheard. The provisions of law pertaining to TIA are available in international as well as national laws of many countries. TIA is a mechanism that always remained under discussion by legal experts and jurists. One school of thought, which seems less popular, is that an accused, who absents himself from trial or avoids the process of law deliberately, deserves no leniency and in the larger public interest he should be brought to book, and his absence should be no excuse to halt his trial. On the other hand, it is argued that TIA seriously undermines the transparency of the due process of law and compromises the various fundamental rights guaranteed under the statutes and constitutions of different jurisdictions.

SANCTITY OF Trial TRIAL IN ABSENTIA AND NTERNATIONAL LAW.

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According to Article 14(3)(d) International Covenant on Civil and Political Rights [ICCPR], an accused shall be entitled to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. Article 6 of the European Convention on Human Rights provides for the right to a fair trial. In the case of Colozza v Italy , the European Court of Human Rights (ECHR) stated that the object and purpose of Article 6 reflect “that a person „charged with a criminal offence‟ is entitled to take part in the hearing”. Article 63 (1) of the Rome Statute of the International Criminal Court provides that the accused shall be present during the trial.

TRIAL IN ABSENTIA IN OUR JURISDICTION.

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In our jurisdiction, substantive and procedural laws have been derived from the English model through the adoption of laws and structures of British India, which itself is a codified legal system based on nineteenth century English law. In other words, our legal system is derived from English common law and is based on the much-amended Constitution and Islamic law („sharia’). Normal procedure for trial has been provided under the Code of Criminal Procedure, 1898 which makes it mandatory that accused must be present before the Court during the course of trial. Although presence of accused can be dispensed with in particular circumstances under sections 205 and 540-A Cr.P.C. but there are few stages where even his personal attendance cannot be dispensed with like indictment, recording of his statement and pronouncement of the judgment, etc. Pertinently, conducting trial in absentia is an illegality which is not curable under section 537 Cr.P.C.

In our jurisdiction, the scheme of trial in absentia was provided under section 5-A (4) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The trial in absentia was also made permissible in the Martial Law regime in 1977. The Terrorist Affected Areas (Special Courts) Act which got promulgated in 1992 also granted Special Courts under the Act the power to conduct trials in absentia under Section 13(10). Similarly, Courts established under the Anti-Terrorism Act, 1997 were given powers under section 19(10) of the Act to hold the trial in absentia.

The right to be represented by counsel of own choice is given by the Constitution of Islamic Republic of Pakistan, 1973 under Article 10(1) . Further, there is possibility that the appellant did not deliberately evade the process of criminal justice system, because his failure to appear before the trial court, as and when required by the trial court, was due to lack of knowledge or some other reasons beyond his control. Even otherwise, if it is assumed that as a means to circumvent the process of criminal justice system, the appellant deliberately absconded, even in that eventuality he could not have been tried and convicted in absentia. Rather, trial court could merely record evidence against him as envisaged under section 512 Cr.P.C after satisfying itself by adhering to the provisions of section 87/88 Cr.P.C that the accused has, in fact, absconded himself and there is no likelihood of his joining the trial proceedings in near future. It is important to state here that the purpose of section 512 Cr.P.C is merely to preserve the evidence of a witness for an eventuality where protection was given to the deposition of such witness who might not be alive at the time of appearance of the accused or might have become incapable of giving evidence or attendance of said witness could not be procured without any delay, expense or inconvenience.

A trial conducted in absentia violates both constitutional guarantees enshrined under Articles 4, 8, 9, 10 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 and principles of natural justice. The only vital question of law involved in this appeal is that whether the appellant could be tried and convicted in absentia under section 19(10) of the Anti-Terrorism Act, 1997. Vires of the aforementioned section were judiciously reviewed by the Apex Court of the country in Mehram Ali and others vs. Federation of Pakistan and others – PLD 1998 SC 1445 whereby only section 19(10)(b) (since deleted) of the Anti-Terrorism Act, 1997 was declared ultra vires being violative of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973. Rest of the provisions of section 19 were held to be intra vires.

Crl. Appeal No.364/2022 (Muhammad Umair vs. The State & another)
Date of hearing: 26-05-2022