PLJ 2026 Cr.C. 359 (DB)
[Lahore High Court, Lahore]
Present:
Farooq Haider and Ali Zia Bajwa, JJ.
ASAD
ABBAS alias ACHOO etc.--Appellants
versus
STATE
etc.--Respondents
Crl. A.
No. 10141-J, Crl. Rev. No. 13628 & M.R. No. 16 of 2022,
decided on 3.6.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Raising lalkara, repeated
firing--Proclaimed offender--It is a well-settled law by now that if a set of
witnesses is disbelieved to extent of some accused, it cannot be believed to
extent of rest of accused facing same trial without their being any independent
and strong corroboration. [P. 367]
A
2022 SCMR 393.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss.
302(b) & 75--Issuance of warrant of arrest--Proclaimed of offenders--Upon
registration of a criminal case, if accused seeks to evade arrest, or, after
issuance of process by Court, fails to appear before Court, a warrant of arrest
may be issued by Court to secure his arrest for ensuring his attendance before
Court--The issuance of a warrant of arrest u/S. 75 of Code is a serious
judicial function--The Court must exercise this power with due circumspection,
carefully weighing necessity of securing arrest of an accused--Where a warrant
of arrest is sought by investigating agency, request must be supported by
cogent material demonstrating reasonable cause for issuance of such warrant--It
must reflect that accused is deliberately evading arrest and that police have
made bona fide and diligent efforts to secure his apprehension through less
coercive means before invoking authority of Court to issue a warrant of
arrest--This requirement ensures that process is not invoked mechanically, but
only upon a justified showing of necessity, in line with principles of fairness
and due process. [P. 370]
B
Pakistan
Penal Code, 1860 (XLV of 1860)--
----Ss.
79 & 75(2)--Warrant of arrest--Proclaimed offender--If a warrant is
directed to multiple officers or persons, it may be executed by any one or more
of them--Under Section 79 of Code, a warrant directed to a police officer may
be executed by another officer if his name is endorsed on it by designated
officer--Under Section 75(2) of Code, a warrant of arrest is always perpetual
in nature, meaning it remains in force indefinitely until it is either executed
or cancelled by Court that issued it--It does not lapse with time and continues
to be legally enforceable unless withdrawn by judicial order--In spirit of
Section 555 of Code, Schedule V provides prescribed form of a warrant of
arrest. [Pp. 370 & 371] C
Pakistan
Penal Code, 1860 (XLV of 1860)--
----S.
87(1)--Issuance of proclamation--The issuance of a warrant of arrest is a sine
qua non for declaring an accused a proclaimed offender--Under Section 87 (1) of
Code, if Court, upon taking evidence, is satisfied that a person against whom a
warrant of arrest has been issued, has absconded or is hiding to avoid
execution of warrant, it may issue a written proclamation requiring person to
appear at a specified place and time, which must be at least thirty days from
date of publication--A proclamation is a judicially sanctioned public notice
issued by a Court when an accused, against whom a warrant of arrest has been
issued, is found to be absconding or concealing himself to evade
arrest--Through this proclamation, person is formally required to appear before
Court at a specified place and time--The phrase ‘upon taking evidence, is
satisfied’ means that Court must base its decision on proper and reliable
evidence, not just on claims or assumptions--Under Section 87 of Code, this
means that before Court issues a proclamation against an accused, it must
examine relevant material, such as statements of witnesses, police reports, or
affidavits, to ensure that genuine and reasonable efforts were made to execute
warrant of arrest, but accused is absconding and deliberately concealing
himself to evade arrest--Only after considering this evidence can Court
lawfully issue proclamation--This requirement ensures that Court acts fairly
and follows proper legal procedure, protecting rights of accused. [P.
371] D
Pakistan
Penal Code, 1860 (XLV of 1860)--
----S.
87(2)--Publication of proclamation--The modes of publication of a proclamation
prescribed under law were introduced over a century ago, at a time when
technological advancements were limited--In present era, where modes of
communication have significantly evolved, it is imperative that these
traditional methods be harmonized with modern means of dissemination, such as
electronic media, print media, and social media platforms--Incorporating
contemporary tools of communication would not only enhance effectiveness of
such proclamations but also ensure broader public awareness and compliance in a
more efficient and timely manner--The Government ought to consider introducing
appropriate amendments to relevant law in order to enhance its effectiveness
and ensure its compatibility with contemporary modes of communication and
enforcement. [P. 373] E
Pakistan
Penal Code, 1860 (XLV of 1860)--
----S. 87(3)--Written
statement of Court--Issuing proclamation--Section 87(3) of Code stipulates that
a written statement by Court issuing proclamation, certifying that proclamation
was duly published on a specified date in manner prescribed under Section 87(2)
of Code, shall serve as conclusive evidence that requirements of above
provision of law have been fulfilled and that proclamation was in fact
published on stated date--While Section 87(3) of Code declares written
statement of Court to be conclusive evidence of publication of a proclamation,
this presupposes that Court has scrutinized and satisfied. [P.
373] F
Pakistan
Penal Code, 1860 (XLV of 1860)--
----S.
302(b)--“Conclusive evidence”--The term ‘conclusive evidence’ denotes such evidence which,
by its probative force and legal character, precludes contradiction and is
regarded by Court as determinative of fact in issue. [P. 373] G
AIR 1963 SC 151.
Pakistan
Penal Code, 1860 (XLV of 1860)--
----Ss.
302(b) & 87(2)--“Absconder and proclaimed offender”--The act of secretly
leaving one’s usual place of abode or business, esp. to avoid arrest,
prosecution, or service of process. [P. 374]
H
Black’s Law Dictionary 12th Ed. by Baryan A.
Garner P. 8 & Black’s Law Dictionary, 11th Ed. by Bryan A. Garner, at P.
1459
Pakistan
Penal Code, 1860 (XLV of 1860)--
----Ss.
302(b) & 87--“Proclaim”--Definition of--The term ‘proclaim’ is defined as ‘to declare
formally or officially’--The act of declaring an accused a proclaimed
offender constitutes a judicial declaration affirming that he is an
absconder--It is a formal pronouncement by Court, based on due process, that
accused has willfully evaded arrest or failed to appear before Court despite
issuance of process--This declaration carries significant legal consequences
and serves to trigger further coercive measures aimed at securing arrest of
accused declared proclaimed offender--Every proclaimed offender is, in essence,
an absconder but every absconder is not a proclaimed offender. [P. 374] I
Pakistan
Penal Code, 1860 (XLV of 1860)--
----Ss.
302(b) & 87(3)--Qatl-e-amd--Proclaimed offender--Absconder--No written
statement of Court is available on record to confirm that proclamation was duly
published on a specified date, as mandated under Section 87(3) of Code--It can
be safely concluded that due process of law, as prescribed under relevant legal
provisions, was not duly followed in declaring appellant a proclaimed
offender--Abscondence, by itself, does not amount to proof of guilt of
accused--Although it may arouse suspicion, such suspicion remains speculative
and cannot substitute concrete evidence--Reliance may be placed on a consistent
body of judgments delivered by Supreme Court of Pakistan--In criminal cases, a
conviction must be based on substantive evidence and not merely on suspicious
circumstances--The standard of proof in criminal law requires prosecution to
establish guilt of accused beyond reasonable doubt through clear, credible and
legally admissible evidence--Suspicious circumstances, such as abscondence may
raise doubt but does not amount to proof of guilt of an accused--The
prosecution has miserably failed to prove its case against appellant beyond
shadow of reasonable doubt, thereby giving rise to serious doubts which, under
settled principles of criminal jurisprudence, must be resolved in favour of
accused--The moment a reasonable doubt arises in prosecution’s case, its
benefit must go to accused, not as a matter of grace, but as a legal right
rooted in fundamental principle that no one can be convicted unless proven
guilty beyond a reasonable doubt--It is better for ten guilty persons to be
acquitted than for one innocent person to be wrongfully convicted--Appeal
allowed. [P. 376] J, K & L
2022 SCMR
1567; 2008 SCMR 1221; 2009 SCMR 230; 2014 SCMR 749 & 2021 SCMR 736.
Mr.
Muhammad Irfan Malik, Advocate for Appellant.
Ms.
Nuzhat Bashir, Deputy Prosecutor General for State.
Barrister
Abdul Qadoos Sohal, Advocate for Complainant.
Date of
hearing: 3.6.2025.
Judgment
Ali
Zia Bajwa, J.--Through this single judgment, we intend to decide Crl.
Appeal No. 10141-J/2022 titled: ‘Asad Abbas alias Achoo vs. The
State’, Murder Reference No. 16/2022 titled: ‘The
State vs. Asad Abbas alias Achoo’ and Crl. Revision No. 13628/2022
titled: “Mst. Ghulam Zohra vs Asad Abbas alias Achoo etc.” as
these are arising out of the same judgment dated 24.01.2022 (hereinafter ‘the
impugned judgment’),
passed by the Additional Sessions Judge, Bhalwal, District Sargodha
(hereinafter ‘the trial Court’).
2. Asad Abbas alias Achoo son of Syed
Sajjad Hussain Shah, caste Syed, resident of Turti Pur, Tehsil Bhalwal,
District Sargodha (hereinafter ‘the appellant’) along with co-accused
was implicated in a private complaint filed by Tasawar Hussain Shah complainant
under Sections 302, 324, 109, 148 & 149, PPC, arising out of case FIR No.
301/2007, dated 14.10.2007, offenses under Sections 302, 324, 109, 148 &
149, PPC, registered with Police Station Bhera, District Sargodha. He was tried
by the trial Court for the afore-mentioned offenses. The trial Court seized with
the matter, vide the impugned judgment, convicted and sentenced the
appellant as under:
Ø Under
Section 302(b), PPC, sentenced to death on two counts with direction to pay Rs.
10,00,000/-for each deceased as compensation to the legal heirs of both the deceased
in terms of Section 544-A, Cr.P.C., to be recovered as arrears of land revenue.
3. The prosecution theory of the case, as
set out in the FIR Ex.CW3/A, has been reproduced as below:
4. After registration of the crime report,
the Investigating Officer conducted the investigation and recorded statements
of the prosecution witnesses under Section 161 of the Code of Criminal
Procedure, 1898 (hereinafter ‘Code’). After completion of the
investigation, a report under Section 173 of the Code was prepared and
submitted before the trial Court in due course. The complainant, being
dissatisfied with the investigation conducted by the investigation agency,
filed a private complaint. After recording cursory evidence, the process was
issued against the accused by the trial Court. During the trial proceedings,
the complainant produced as many as nine (09) prosecution witnesses. The trial
Court also recorded the evidence of three (03) Court witnesses. After the
completion of the evidence, the statement of the appellant under Section 342 of
the Code was recorded by the trial Court, who professed his innocence and
refuted all the allegations leveled against him in this case. Upon the
completion of the trial, the trial Court convicted and sentenced the appellant
as mentioned and detailed above.
5. We have carefully heard the arguments
advanced by the learned counsel representing both sides with due attention and
consideration. In addition, we have thoroughly examined the entire record
available on the file to arrive at a just, and reasoned determination of the
matter at hand.
6. The prosecution
has relied upon ocular testimony, medical evidence, recovery of the alleged
weapon of offense, the asserted motive, and the abscondence to establish its
case against the appellant beyond a reasonable doubt. To evaluate the legal
validity of the conviction and sentence imposed by the trial Court, it is
essential to thoroughly reassess the entire evidence on record to determine if
it satisfies the required standard of proof in criminal law.
7. The occurrence in
the present case is stated to have taken place on 14.10.2007 at 2:30 p.m.,
whereas the FIR was lodged at 3:20 p.m., the same afternoon, suggesting that
the matter was reported with extraordinary promptitude. The ocular account in
the present case was furnished through the testimony of Tasawar Hussain
(PW-6)/complainant and Mst. Ghulam Zohra/injured (PW-2). According to
the contents of the crime report, the appellant has been specifically
attributed with firing three gunshots. The first struck the left flank of
Hasnain Haider (deceased), the second hit his back, between the backbone and
left flank, and the third impacted near the side of the backbone. Additionally,
the appellant has been assigned a general role of firing alongside his
co-accused, which resulted in a gunshot wound to the abdomen of Qaiser Abbas
(deceased), and injuries to the right thigh and testicular region of Hasnain
Haider (deceased).
8. Subsequently,
after a delay of six months, the complainant instituted a private complaint in
which the role attributed to the appellant was materially altered. In this
complaint, both the locale and number of injuries were changed, assigning the
appellant specific injuries to the left thigh, testicular region, and other
parts of the body of Hasnain Haider (deceased). The pictorial diagram prepared
by the Medical Officer, exhibited on record as Exh.PG/1, indicates that Injury
No. 3-B, located on the left flank at the back of the deceased, is an exit
wound. Hence, it is clearly established that the medical evidence is in direct
conflict with the ocular account. It is a well-settled principle of criminal
law that where a material contradiction arises between the ocular account and
the medical evidence, and such discrepancy cannot be reconciled, the benefit of
the doubt must be afforded to the accused.
9. While referring
to the testimony of Mst. Ghulam Zohra, the injured prosecution witness,
learned counsel for the complainant argued that her presence at the scene of
occurrence could not be doubted, considering that she sustained injuries during
the incident. A perusal of her Medico-Legal Certificate (MLC) reveals that she
was medically examined on 14.10.2007 at 6:00 p.m., approximately three hours
and thirty minutes after the occurrence. However, in the column pertaining to
the probable duration of injuries, the examining doctor recorded ‘within one
day.’ The Supreme Court of Pakistan, in the case of a co-accused (Sikandar
Hussain), noted that while the initial entry stated ‘one day,’ additional
wording appeared to have been subsequently inserted. The Court further held
that the medical evidence relied upon by the prosecution with respect to this
witness failed to inspire confidence.
10. The most pivotal aspect of the case is
that, in the private complaint, Sikandar Hussain, co-accused along with the
appellant, was attributed not only with raising a lalkara but also with
repeatedly firing at Qaiser Abbas (deceased). Although he was convicted by the
trial Court, and this Court upheld his conviction regarding the injuries to the
deceased, albeit with a modification of the death sentence to life
imprisonment, his appeal before the Supreme Court of Pakistan was allowed.
Consequently, he was acquitted of the charge vide order dated 22.08.2019.
It is a well-settled law by now that if a set of witnesses is disbelieved to
the extent of some accused, it cannot be believed to the extent of the rest of
the accused facing the same trial without their being any independent and
strong corroboration.[1]
Moreover, in the reported judgment titled Pervaiz Khan and another vs. The
State – 2022 SCMR 393 the Supreme Court ruled as under:
“So there is nothing on record to distinguish
the role of the present appellants from the role of those accused who have been
acquitted by the trial Court and their acquittal has been maintained by the
High Court and further their acquittal was never challenged before this Court.
Due to the above circumstances, the conviction and sentence of appellants is
not sustainable on the same set of evidence, which was found doubtful to the
extent of three acquitted co-accused.”
11. We shall now proceed to examine the
evidence on record to ascertain whether any strong and independent
corroborative material exists that would warrant distinguishing the case of the
appellant from that of the co-accused who has been acquitted by the Supreme
Court. The first piece of corroborative evidence is the recovery of a .30-bore
pistol (C-1) at the instance of the appellant. However, in the absence of any crime
empties recovered from the place of occurrence, this recovery becomes wholly
inconsequential and fails to advance the prosecution case. The motive
attributed to the occurrence was a prior enmity stemming from previous murders.
However, the Supreme Court of Pakistan, while acquitting the co-accused, held
that the motive advanced by the prosecution was equivocal in nature and could
plausibly cut both ways.
12. Next is the
prolonged abscondence of the appellant, who was statedly declared a proclaimed
offender. The learned counsel for the complainant, as well as the learned
Deputy Prosecutor General, vehemently argued that the appellant remained an
absconder for a period of eleven years, which, in their view, constitutes a
corroborative circumstance suggestive of his nexus with the offense alleged
against him. It is pertinent to outline the legal process for declaring an
accused person a proclaimed offender. This procedure, governed by the
provisions[2]
of the Code is not a mere formality but a substantive judicial act that
significantly affects the fundamental rights of the individual concerned. In
the context of this judgment, the legal procedure regarding the declaration of
an accused as a proclaimed offender has been duly examined. It is also
pertinent to note that any individual, not necessarily an accused, may be
declared a proclaimed offender if a process has been issued against him by the
Court and he fails to appear in compliance with the same process.
13. The act of
declaring an accused person a proclaimed offender is a coercive measure,
employed to compel his arrest and ensure that he is brought within the fold of
the law. It signifies the resolve of the State to address the deliberate
abscondence of an accused and to uphold the administration of justice by
affecting his arrest, thereby ensuring his submission to the due process of
law. Sections 75, 77, and 87 of the Code are most pertinent to the matter at
hand and are reproduced hereinafter for ready reference.
75. Form of warrant of arrest: (1) Every
Warrant of arrest issued by a Court under this Code shall be in writing, signed
by the presiding officer, or in the case of a Bench of Magistrates, by any
member of such Bench; and shall bear the seal of the Court.
(2) Continuance of warrant of arrest. Every
such warrant shall remain in force until it is cancelled by the Court which
issued it, or until it is executed.
77. Warrants to whom directed: (1) A warrant
of arrest shall ordinarily be directed to one or more police-officers, but any
Court issuing such a warrant may, if its immediate execution is necessary and
no police-officer is immediately available, direct it to any other person or
persons; and such person or persons shall execute the same.
(2) Warrants
to several persons. When a warrant is directed to more officers or persons than
one, it may be executed by all, or by any one or more, of them.
“87. Proclamation
for person absconding. (1) If any Court is satisfied after taking evidence
that any person against whom a warrant has been issued by it has absconded or
is concealing himself so that such warrant cannot be executed, such Court may
publish a written proclamation requiring him to appear at a specified place and
at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The
proclamation shall be published as follows:-
(a) it shall be publicly read in some
conspicuous place of the town or village in which such person ordinarily
resides;
(b) it shall be affixed to some conspicuous
part of the house or homestead in which such person ordinarily resides or to
some conspicuous place of such town or village; and
(c) a copy thereof shall be affixed, to some
conspicuous part of the Court-house.
(3) A
statement in writing by the Court issuing the proclamation to the effect that
the proclamation was duly published on a specified day shall be conclusive
evidence that the requirements of this section have been complied with, and
that the proclamation was published on such day.”
14. The aforementioned provisions of the Code
reflect that the Code sets forth a clear, self-contained, and structured
procedure for declaring an accused person a proclaimed offender. It is
pertinent to note that the entire process of declaring an individual a
proclaimed offender, commencing from the issuance of arrest warrant to the
publication of a proclamation, remains under the exclusive control of the
Court. The statutory framework unequivocally establishes that the investigating
agency is not empowered to undertake this process on its own. This legislative
construct reflects a conscious intent to safeguard fundamental rights,
recognizing that the issuance of warrant of arrest and the declaration of
abscondence carry serious legal consequences. Judicial control is, therefore,
imperative to prevent arbitrary or unlawful infringement upon such rights. The
procedure to declare an accused proclaimed offender may be explained as
follows:
Issuance
of Warrant of arrest
15. Upon
the registration of a criminal case, if the accused seeks to evade arrest, or,
after the issuance of process by the Court, fails to appear before the Court, a
warrant of arrest may be issued by the Court to secure his arrest for ensuring
his attendance before the Court. The issuance of a warrant of arrest under
Section 75 of the Code is a serious judicial function. The Court must exercise
this power with due circumspection, carefully weighing the necessity of
securing the arrest of an accused. Where a warrant of arrest is sought by the
investigating agency, the request must be supported by cogent material
demonstrating reasonable cause for the issuance of such warrant. It must
reflect that the accused is deliberately evading arrest and that the police
have made bona fide and diligent efforts to secure his apprehension through
less coercive means before invoking the authority of the Court to issue a
warrant of arrest. This requirement ensures that the process is not invoked
mechanically, but only upon a justified showing of necessity, in line with the
principles of fairness and due process. The requisites of a valid warrant of
arrest are as follows:-
i. The
warrant must be in writing (oral orders are not valid for arrest).
ii. It
must bear the name and designation of the person who is to execute it.
iii. It must give the full name and description of the person to be
arrested.
iv. It
must state the offense charged.
v. It
must be signed by the presiding officer of the Court or by any member of the
Bench in case of a Bench of Magistrates.
vi. It
must bear the official Court seal, indicating its authenticity.
The issuance of a warrant is a judicial
function, whereas its execution is an executive function. A warrant of arrest
is normally directed to one or more police officers, but if urgent execution is
required and no police officer is available, the Court may authorize any other
person to execute it. If a warrant is directed to multiple officers or persons,
it may be executed by any one or more of them. Under Section 79 of the Code, a
warrant directed to a police officer may be executed by another officer if his
name is endorsed on it by the designated officer. Under Section 75(2) of the
Code, a warrant of arrest is always perpetual in nature, meaning it remains in
force indefinitely until it is either executed or cancelled by the Court that
issued it. It does not lapse with time and continues to be legally enforceable
unless withdrawn by judicial order. In the spirit of Section 555 of the Code,
Schedule V provides the prescribed form of a warrant of arrest, which has been
reproduced hereinafter:
Issuance of proclamation
16. The issuance of a warrant of arrest is a
sine qua non for declaring an accused a proclaimed offender. Under Section 87
(1) of the Code, if the Court, upon taking evidence, is satisfied that a person
against whom a warrant of arrest has been issued, has absconded or is hiding to
avoid execution of the warrant, it may issue a written proclamation requiring
the person to appear at a specified place and time, which must be at least
thirty days from the date of publication. A proclamation is a judicially
sanctioned public notice issued by a Court when an accused, against whom a
warrant of arrest has been issued, is found to be absconding or concealing
himself to evade arrest. Through this proclamation, the person is formally required
to appear before the Court at a specified place and time. The phrase ‘upon
taking evidence, is satisfied’ means that the Court must base its decision
on proper and reliable evidence, not just on claims or assumptions. Under
Section 87 of the Code, this means that before the Court issues a proclamation
against an accused, it must examine the relevant material, such as statements
of the witnesses, police reports, or affidavits, to ensure that genuine and
reasonable efforts were made to execute the warrant of arrest, but the accused
is absconding and deliberately concealing himself to evade arrest. Only after
considering this evidence can the Court lawfully issue the proclamation. This
requirement ensures that the Court acts fairly and follows proper legal
procedure, protecting the rights of the accused. The procedural requirements
for issuing an order of proclamation are as follows:-
i. The pendency of
a non-bailable warrant of arrest is a sine qua non for initiating proclamation
proceedings;
ii. All reasonable efforts must have been
made to execute the said warrant;
iii. The unexecuted warrant must be returned to
the Court along with a report detailing the steps taken for its execution;
iv. The Court must be satisfied, based on the
material before it, that the accused is either concealing himself or is
absconding in such a manner that the warrant could not be executed, thereby
justifying the issuance of a proclamation under Section 87 of the Code.
In the spirit of Section 555 of the Code, Schedule V provides the
prescribed form of a proclamation, which has been reproduced hereinafter:
Publication of proclamation
17. Section 87(2) of the Code clearly and
expressly sets out the procedure for the publication of a proclamation.
Notably, the three prescribed modes of publication are conjunctive, not
disjunctive, meaning all must be complied with collectively. The use of the
imperative term ‘shall’
highlights the mandatory nature of this requirement, thereby leaving no
room for selective or partial compliance by the executing authority entrusted
with the duty to publish the proclamation.
i. The proclamation shall be publicly read
in some conspicuous place within the town or village where the person
ordinarily resides.
ii. The proclamation
shall be affixed to some conspicuous part of the house or homestead in which
the person ordinarily resides, or to a prominent place within the town or
village; and
iii. A copy of the
proclamation must be affixed to some prominent part of the Courthouse.
We have observed that the modes of publication of a proclamation
prescribed under the law were introduced over a century ago, at a time when
technological advancements were limited. In the present era, where modes of
communication have significantly evolved, it is imperative that these
traditional methods be harmonized with modern means of dissemination, such as
electronic media, print media, and social media platforms. Incorporating
contemporary tools of communication would not only enhance the effectiveness of
such proclamations but also ensure broader public awareness and compliance in a
more efficient and timely manner. The Government ought to consider introducing
appropriate amendments to the relevant law in order to enhance its
effectiveness and ensure its compatibility with contemporary modes of
communication and enforcement.
Written statement of Court
18. Section 87(3) of
the Code stipulates that a written statement by the Court issuing the
proclamation, certifying that the proclamation was duly published on a
specified date in the manner prescribed under Section 87(2) of the Code, shall
serve as conclusive evidence that the requirements of the above provision of
law have been fulfilled and that the proclamation was in fact published on the
stated date. While Section 87(3) of the Code declares the written statement of
the Court to be conclusive evidence of publication of a proclamation, this
presupposes that the Court has scrutinized and satisfied itself that:
• All three
mandatory modes of publication under Section 87(2) of the Code have been
strictly complied with,
• The proclamation
was published on the specified date.
The term ‘conclusive evidence’ denotes such evidence which,
by its probative force and legal character, precludes contradiction and is
regarded by the Court as determinative of the fact in issue. It was ruled in Smt.
Somavanti and others vs. The State of Punjab and others – AIR 1963 SC 151
as infra:
“Once the law says
that certain evidence is conclusive it shuts out any other evidence which would
detract from the conclusiveness of that evidence., In substance, therefore,
there is no difference between conclusive evidence and conclusive proof.”
Therefore, before recording the written certification under Section
87(3) of the Code, the Court must ensure that the entire process is legally
followed. This not only safeguards the rights of the accused but also upholds
the integrity and legality of further coercive steps, such as attachment of
property under Section 88 of the Code.
19. It would also be
appropriate at this stage to discuss the distinction between an ‘absconder’ and a ‘proclaimed offender’.
According to Black’s Law Dictionary 12th Edition by Baryan A.
Garner Page No. 8, the term abscond means ‘The act of secretly
leaving one’s usual place of abode or business, esp. to avoid arrest,
prosecution, or service of process.’ Whereas, according to Black’s
Law Dictionary, 11th Edition by Bryan A. Garner, at Page No. 1459,
the term ‘proclaim‟ is defined as ‘to declare
formally or officially.’ The act of declaring an accused a proclaimed
offender constitutes a judicial declaration affirming that he is an absconder.
It is a formal pronouncement by the Court, based on due process, that the accused
has willfully evaded arrest or failed to appear before the Court despite the
issuance of process. This declaration carries significant legal consequences
and serves to trigger further coercive measures aimed at securing the arrest of
the accused declared proclaimed offender. Every proclaimed offender is, in
essence, an absconder but every absconder is not a proclaimed offender.
Divergence
between an absconder and a proclaimed offender
|
Legal Aspect |
Absconded Person |
Proclaimed Offender |
|
Definition |
An
accused person who willfully evades arrest or conceals himself to avoid
execution of a warrant. |
An
accused person who, after being declared absconding and upon issuance of a
public proclamation by a Court, fails to appear before the court within the
stipulated time. |
|
Legal
Status |
Merely
a factual condition; not formally declared by a court. |
A
formal legal status of an absconder, declared by the Court under Section 87
of the Code. |
|
Authority
Involved |
Identified
and reported by the police/ investigating agency. |
Declared
solely by the court after satisfying legal prerequisites. |
|
Procedure
Involved |
Police
report to the Court that the accused is not traceable or is absconding,
therefore, a warrant of arrest should be issued. |
The
Court first issues a warrant of arrest and, upon being satisfied with
non-execution due to the hiding of the accused or abscondence, publishes a
proclamation requiring the accused to appear before the Court. If the accused
fails to comply, the Court may formally declare him a proclaimed offender. |
|
Applicable
Provision |
Issuance
of a warrant and its execution as provided under Sections 75 to 86-A of the
Code. |
Explicitly
governed by the Section 87 of the Code. Further proceedings can be carried
out under Section 88 of the Code. |
|
Evidentiary
Value |
Serves
as a factual basis for initiating proclamation proceedings. |
Once
an accused person is declared a proclaimed offender following due process,
such declaration may be used against him to prove guilt. |
Under the Punjab
Police Rules, 1934, separate registers are maintained for absconders and
proclaimed offenders. The District Register of Absconders[3]
records individuals who evade arrest, while the Register of Proclaimed
Offenders[4]
contains the names of those formally declared offenders by a Court. This distinction
ensures efficient monitoring and supports lawful enforcement. Rules 23.21,
23.24, and 23.25 of the Punjab Police Rules, 1934, lay down the procedural
framework for proceeding against absconders and proclaimed offenders.
20. Returning to the
legal aspects concerning the declaration of the appellant as a proclaimed
offender in the present case, it is observed that the warrant of arrest
(Ex-CW3/F) was not addressed to any specific police officer for execution,
which reflects a violation of a mandatory requirement of law, as earlier
discussed. The execution report of the warrant of arrest (Ex-CW/1-2) also fails
to disclose the details of the steps undertaken by the police officer to effect
the arrest of the appellant. No written statement of the Court is available on
the record to confirm that the proclamation was duly published on a specified
date, as mandated under Section 87(3) of the Code. In view of the foregoing, it
can be safely concluded that the due process of law, as prescribed under the
relevant legal provisions, was not duly followed in declaring the appellant a
proclaimed offender.
21. Even otherwise,
and irrespective of the foregoing discussion, abscondence, by itself, does not
amount to proof of the guilt of the accused. Although it may arouse suspicion,
such suspicion remains speculative and cannot substitute concrete evidence.
Reliance may be placed on a consistent body of judgments delivered by the
Supreme Court of Pakistan.[5]
In criminal cases, a conviction must be based on substantive evidence and not
merely on suspicious circumstances. The standard of proof in criminal law
requires the prosecution to establish the guilt of the accused beyond
reasonable doubt through clear, credible and legally admissible evidence.
Suspicious circumstances, such as abscondence may raise doubt but does not
amount to proof of guilt of an accused.
22. The foregoing
discussion undoubtedly reflects that the prosecution has miserably failed to
prove its case against the appellant beyond the shadow of reasonable doubt,
thereby giving rise to serious doubts which, under the settled principles of
criminal jurisprudence, must be resolved in the favour of the accused. The
moment a reasonable doubt arises in the prosecution’s case, its benefit must go
to the accused, not as a matter of grace, but as a legal right rooted in the
fundamental principle that no one can be convicted unless proven guilty beyond
a reasonable doubt. It is better for ten guilty persons to be acquitted than
for one innocent person to be wrongfully convicted.[6]
23. In consequence of
the aforementioned discussion, Crl. Appeal No. 10141/2022
filed by the appellant is allowed. Resultantly, conviction
and sentence passed by the virtue of impugned judgment are set aside
and the appellant is acquitted of the charge.