HIGH COURT OF SINDH AT
Appeal No.102 of 2013
Case No.03 of 2013
Ahmed Gorar, J.
J U D G M E N T
Appellant: Abdul Qadir alias Fauji son of Ghulam
Hussain through Mr. Abdul Rasheed Nizamani,
Respondent: The State through Mr. Muhammad
Iqbal Awan, Assistant Prosecutor General Sindh.
of hearing: 17/03/2016
Date of announcement: 17/03/2016
NAIMATULLAH PHULPOTO, J:- Appellant
Abdul Qadir alias Fauji son
of Ghulam Hussain was tried by learned IVth
Additional Sessions Judge, Karachi (West) in Sessions Case No.413
of 2006 for offences under section 396, PPC. After
full dressed trial, appellant Abdul Qadir alias Fauji was convicted under section 396, PPC
and sentenced to death as Tazir, he was ordered to
pay fine of Rs.200,000/-, if recovered, the same was
ordered to be paid to the legal heirs of the deceased as compensation as provided
under section 544-A, Cr.PC. Trial Court made reference to this Court for
confirmation of death sentence as required under section 374, Cr.PC. Appellant
has challenged the conviction and sentence recorded by the trial Court. By this
judgment, we intend to dispose of above numbered criminal appeal as well as
reference made by trial Court for confirmation of death sentence.
2. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 22.06.2006 at 03:30 a.m. six persons
armed with Kalashnikov and pistols entered into the house of the complainant.
The family members were detained in a room and one person (present accused)
armed with Kalashnikov/rifle was standing in the room and was watching the
situation. Co-accused, armed with T.T. pistols
started looting the household articles. In the meanwhile, it is stated that
brother of the complainant, namely, Muhammad Fareed
(now deceased) apprehended one of the accused, who fired upon the brother of
the complainant, namely, Muhammad Fareed, resultantly
fire hit to the brother of the complainant and he succumbed to the injuries at
the spot. Present accused was apprehended at the spot, he disclosed his name as
Abdul Qadir alias Fauji son
of Ghulam Hussain. It is further alleged in the F.I.R.
that accused Abdul Qadir alias Fauji
had also sustained bullet injury. Complainant had also received head injury.
Thereafter, remaining accused made their escape good from the house of the
complainant. Thereafter, brother of the complainant, namely, Muhammad Fareed was taken to the hospital and complainant went to
the police station and lodged F.I.R. It was recorded
vide Crime No.79/2006 at P.S. Baldia
Town, Karachi under section 396, PPC. Custody of
accused Abdul Qadir alias Fauji
and rifle carried by him at the time of commission offence was handed over to ASI Taj Muhammad. Said ASI arrested accused Abdul Qadir
alias Fauji and prepared mashirnama of arrest and
recovery and sealed the rifle at spot in presence of mashirs. Thereafter,
Investigation Officer visited the place of incident in presence of mashirs and
secured bloodstained earth from the place of wardat, such mashirnama was
prepared and bloodstained earth was sealed at spot. Investigation Officer sent
bloodstained clothes of the deceased and rifle recovered from accused Abdul Qadir alias Fauji to the Chemical
as well as Ballistic Experts for reports and positive reports were received. On
the conclusion of the investigation, challan was submitted against accused
Abdul Qadir alias Fauji and
accused Sajjad alias Genda, Shakeel Sapna, Irfan, Mehbood
and Arshad were shown absconders. Trial Court
declared absconding accused, namely, Sajjad alias Genda,
Shakeel Sapna, Irfan, Mehbood and Arshad as proclaimed
offenders and proceedings under sections 87/88, Cr.PC were concluded against
3. Charge was framed against accused Abdul Qadir
alias Fauji at Ex-4, u/s 396, PPC.
Accused pleaded not guilty and claimed to be tried.
4. Since accused Muhammad Sajjad alias Genda
was arrested and charge was framed against accused Muhammad Sajjad alias Genda at Ex-7. Accused pleaded not guilty and claimed to be
5. It appears that accused Muhammad Sajjad alias Genda was acquitted by the trial Court under section 265-K,
Cr.PC vide order dated 29.04.2010. Case proceeded against appellant Abdul Qadir alias Fauji.
6. In order to substantiate its case, prosecution examined PW-1
Muhammad Rafiq at Ex-9. He produced F.I.R. No.79/2006, under section
396, PPC at Ex.9/A,
mashirnama of arrest of present accused and recovery of rifle from him at Ex.9/B, memo of inspection of scene of offence at Ex-9/C;
PW-2 Javed Khan at Ex-10, PW-3 Muhammad Jawaid at Ex-11, he produced inquest report at Ex-11/A,
mashirnama of inspection of dead body at Ex-11/B and receipt of dead body at Ex-11/C;
PW-4 Muhammad Amin at Ex-12, PW-5 Inspector Chaudhry
Shaukat Ali Ex-13, he produced sketch of place of wardat at Ex-13/B and letter
of sending bloodstained clothes of deceased and bloodstained earth at Ex-13/C.
IO has also produced positive report of the chemical examiner at Ex-13/D,
letter addressed to AIGP Sindh, Karachi by which
rifle 222 and rounds were sent for FLS report at
Ex-13/E, positive report of Criminalistics Division Sindh at Ex-13/F, PW-6 Dr. Jagdesh Kumar at Ex-16, he produced medico legal
certificate/postmortem report of deceased Muhammad Fareed.
Thereafter, prosecution side was closed at Ex-17.
7. Statement of accused Abdul Qadir
alias Fauji was recorded under section 342, Cr.PC at
Ex-18 in which accused claimed his false implication in this case. Accused stated
that PWs have deposed against him due to personal
grudge and did not lead any evidence in defence and declined to give statement
on oath in disproof of prosecution allegations.
8. Learned trial Court after hearing the learned counsel for the
parties and assessment of evidence convicted accused Abdul Qadir
alias Fauji under section 396, PPC
and sentenced to death as stated above. Trial Court made reference to this
Court for confirmation of death sentence.
9. Mr. Abdul Rasheed Nizamani, learned advocate for appellant, mainly argued
that trial Court had not recorded statement of accused under section, 342,
Cr.PC in accordance with law. He has referred to the evidence of the complainant
in which complainant has stated that at the time of incident family members of
the complainant were confined by six accused persons. Present appellant armed
with rifle was watching and co-accused looted the household articles and one of
the culprits fired upon his brother Muhammad Fareed,
who had caught hold accused Abdul Qadir alias Fauji. It is contended that such incriminating piece of
evidence against the accused was not put to him for his explanation. He has
also argued that appellant had received injury in the incident but such
question was also not been put to him. It is also argued that appellant was
caught red-handed and rifle was recovered from him but no such question was put
to him. It is also submitted that rifle recovered from appellant and
bloodstained clothes of deceased were sent to the chemical and ballistic
experts and positive reports were produced in evidence but such questions were
also not put to the accused. Mr. Nizamani argued that
trial Court had recorded statement of accused in a casual manner, in the case
punishable for death or imprisonment for life. He has submitted that while not
putting all the incriminating pieces of evidence to the accused, serious
prejudice has been caused to him and omission on the part of the trial Court
amounts to denial of a fair opportunity to the accused and it has vitiated the
trial. In support of his contentions, he has relied upon an unreported judgment
in Criminal Appeal No.292 of 2009 dated 28.10.2010 in
the case of MUHAMMAD HASSAN versus THE STATE and MUHAMMAD NAWAZ and others
Versus The STATE AND OTHERS (2016 SCMR 267).
10. Mr. Muhammad Iqbal Awan, A.P.G. conceded to the contentions raised by the learned
counsel for the appellant and stated that trial Court had not recorded the
statement of accused under section 342, Cr.PC in accordance with law and all
the material questions/incriminating pieces of evidence were not put to the
accused for his explanation and trial has vitiated.
11. In order to appreciate the contentions
raised by learned counsel for the appellant, we have carefully perused the
statement of accused Abdul Qadir alias Fauji recorded under section 342, Cr.PC by the trial Court
at Ex-15. For the sake of convenience it is reproduced as under:-
OF ACCUSED U/S 342, Cr.PC
Q. No.1 It is alleged against you that on
22.6.2006 at about 3:30 a.m. you above named accused alongwith absconding
accused duly armed with deadly weapon had entered into the house of complainant
namely Muhammad Rafique and started looting the house
hold articles and you had also fired upon complainant’s brother namely Fareed, resultantly he expired at the spot, also due to
firing of your companions, you have also received fire arm injury, what you
have to say?
Sir I have been falsely implicated.
Q. No.2 Why the PWs have deposed against you?
to personal grudge PWs have deposed against me.
Q. No.3 Do you want
to produce any witness in your defence?
Ans. No Sir.
Q. No.4 Do you want
to give any evidence on oath?
Ans. No Sir.
Q. No.5 Do you want
to say anything else?
Ans. I am innocent. I have been falsely involved in this case.
and real culprits have been acquitted. I pray for
IVTH ADDL SESSIONS JUDGE
12. From the perusal of statement of accused Abdul
Qadir alias Fauji recorded under
section 342, Cr.PC it transpires that following material
questions/incriminating pieces of evidence were not put to the accused for his
Complainant has deposed that present accused along with co-accused had
confined family members of the complainant in the house and appellant was armed
with rifle at that time and was watching and 5 co-accused were looting the
In the evidence it has been brought on record that appellant was caught
hold by deceased Muhammad Fareed and one accused fired
upon Muhammad Fareed, he sustained injuries and died
It is in evidence that appellant had also received fire arm injury in
the incident so also the complainant at his head.
Question regarding recovery of rifle at spot from accused Abdul Qadir alias Fauji was also not
put to him for his explanation?
It has come in evidence that Investigation Officer sent bloodstained
clothes of deceased, rifle recovered from accused Abdul Qadir
and bloodstained earth to the ballistic and chemical examiners for their
reports and positive reports have been produced in the evidence but no such
question was put to the accused for his reply.
13. Keeping in view the above lapses/omissions
on the part of trial Court we have perused the judgment of the trial Court.
Trial Court has relied upon the above pieces of evidence for recording
conviction against the accused. It is the requirement of the law that all
incriminating pieces of evidence available on record are required to be put to
the accused as required under section 342, Cr.PC in which words used are, “For
the purpose of enabling the accused to explain any circumstances appearing
in evidence against him” which clearly demonstrate that not only
the circumstances appearing in the Examination-in-Chief are put to the accused
but the circumstances appearing in cross-examination or re-examination are also
required to be put to the accused, if they are against him, because the
evidence means Examination-in-Chief, cross-examination and re-examination, as
provided under Article 132 read with Article 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The perusal of statement of accused,
under section 342, Cr.PC, reveals that the portion of the evidence was not put
to the accused in his statement under section 342, Cr.PC enabling him to
explain the circumstances particularly when accused led police to place where
he had buried dead body. It is well settled that if any piece of evidence is
not put to the accused in his statement under section 342, Cr.PC, then the same
cannot be used against him for his conviction.
14. Learned Division Bench of this Court in the case of HABIBULLAH alias BHUTTO and 3 others versus THE STATE (PLD 2007 Karachi 68) remanded the case to the trial Court
for re-trial from the stage of recording the statement of the appellants under
section 342, Cr.PC and re-writing the judgment in accordance with law. Relevant
portion is reproduced as under:-
have given our due consideration to the arguments, gone through the material
placed on record and found that a defect in A recording the statement under
section 342, Cr.P.C. of the appellants is curable unless it is shown that
appellants have been prejudiced and alp miscarriage of justice has occurred.
the present case the charge was framed on 21-3-2004, it reads as under:---
"That on 24-7-2003 at 1745 hours, at the
common road, village Pacca Ghanghra
near house of Muhammad Hassan Ghanghro, Deh Ghangra, Taluka
Kandiaro, you duly armed with deadly weapons viz. klashnikov, shot guns, pistols, you committed the Qatl-e-Amd of Imam Bakhsh the brother of the complainant Sultan Ahmed Mangrio, by tiring at him, thereby committed offences punishable
under sections 302, 147, 149, 34, P.P.C. and within
the cognizance of this Court'.
trial Judge while recording the statements of the appellants put one question
to appellants as main question and that question reads as under:---
No.1.-You have heard the prosecution's evidence, it
has come in evidence that on 24-7-2003 at 1745 hours, at the common road,
village Pacca Ghanghra near
house of Muhammad Hassan Ghanghro, Deh Ghaghra, Taluka
Kandiaro, you duly armed with deadly weapons viz. klashnikov, shot guns. Pistols, committed Qatl-e-Amd of Imam Bakhsh the brother of complainant Sultan Ahmed Mangrio by firing at him. What you to
of the above question with the facts mentioned in the charge reveals that it is
virtually reproduction of the charge as question No. 1. From this fact alone it
appears that the learned trial Judge did not go through the evidence while
recording the statements under section 342, Cr.P.C. so as to put all
incriminating pieces of evidence to the appellants to obtain their explanation.
Under section 342, Cr.P.C. a duty is cast upon the trial Judge to put questions
to the accused persons on the incriminating facts which have come in the
evidence enabling the accused persons to explain circumstances appearing on the
evidence against them. Thus the Provisions of section 342, Cr.P.C. have not
been fully complied with.”
15. Honourable Supreme Court in an unreported judgment
in Criminal Appeal No.292 of 2009 dated 28.10.2010 in
the case of MUHAMMAD HASSAN versus THE STATE held as under:-
“3. In view of the order we propose to pass
there is no occasion for going into the factual aspects of this case and it may
suffice to observe that the case of the prosecution against the appellant was
based upon prompt lodging of the F.I.R., statements
of three eyewitnesses, medical evidence, motive, recovery of weapon of offence
and a report of the Forensic Science Laboratory regarding matching of some of
the crime-empties with the firearm allegedly recovered from the appellant’s
possession during the investigation but we have found that except for the
alleged recovery of Kalashnikov from the appellant’s possession during
the investigation no other piece of evidence being relied upon by the
prosecution against the appellant was put to the appellant at the time of
recording of his statement under section 342, Cr.PC.
4. It is by now a settled principle of
criminal law that each and every material piece of evidence being relied upon
by the prosecution against an accused person must be put to him at the time of
recording of his statement under section 342, Cr.PC so as to provide him an opportunity
to explain his position in that regard and denial of such opportunity to the
accused person defeats the ends of justice. It is also equally settled that a
failure to comply with this mandatory requirement vitiates a trial. The case in
hand is a case of murder entailing a sentence of death and we have truly been
shocked by the cursory and casual manner in which the learned trial Court had
handled the matter of recording of the appellant’s statement under section 342,
Cr.PC which statement is completely shorn of the necessary details which were
required to put to the appellant. We have been equally dismayed by the fact
that even the learned Judges of the Division Bench of the High Court of Sindh
deciding the appellant’s appeal had failed to take notice of such a glaring
illegality committed by the trial Court. It goes without saying that the
omission on the part of the learned trial Court mentioned above was not merely
an irregularity curable under section 537, Cr.PC but the same was a downright
illegality which had vitiated the appellant’s conviction and sentence recorded
and upheld by the learned Courts below.”
16. In the
case of MUHAMMAD NAWAZ and others Versus The STATE AND OTHERS (2016 SCMR 267) Honourable Supreme Court of Pakistan has observed
“………….While examining the
appellants under section 342, Code of Criminal Procedure, the medical evidence
was not put to them. It is well settled by now that a piece of evidence not put
to an accused during his/her examination under section 342, Code of Criminal
Procedure, could not be used against him/her for maintaining conviction and
the present case trial Court did not perform it’s function diligently and has taken the matter
lightly and in a casual manner, awarded death sentence to the accused. As such,
appellant was prejudiced in his trial and defence. Therefore, a miscarriage of
justice has occurred in the case. Procedure adopted by trial Court is an
illegal procedure that cannot be cured under section 537, Cr.PC. Thus, it has
vitiated the trial. Hence, impugned judgment is liable to be set aside.
the light of what has been discussed above, the impugned judgment is set aside.
The case is remanded to the trial Court for retrial from the stage of recording
the statements of the appellant under section 342, Cr.PC and rewriting the
judgment in accordance with law.
is allowed in the above terms. Confirmation case is dismissed.
copy of judgment be sent through Registrar to Ms. Shagufta Siddiqui, Additional
Sessions Judge, wherever she is posted, for her future guidance with advice and
direction to be careful in future.
J U D G E
U D G E