HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.102 of 2013

Confirmation Case No.03 of 2013

Present:

Naimatullah Phulpoto, J.

Aftab 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, Advocate

Respondent: The State through Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh.

Date 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 IV^th 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 them.

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 tried.

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:-

“STATEMENT 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?

Ans. No, Sir I have been falsely implicated.

Q. No.2 Why the PWs have deposed against you?

Ans. Due 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 justice.”

Sd/-

IVTH ADDL SESSIONS JUDGE

KARACHI WEST”

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 explanation/reply:

(1) 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 household articles.

(2) 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 at spot.

(3) It is in evidence that appellant had also received fire arm injury in the incident so also the complainant at his head.

(4) Question regarding recovery of rifle at spot from accused Abdul Qadir alias Fauji was also not put to him for his explanation?

(5) 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:-

“We 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.

In 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'.

Learned trial Judge while recording the statements of the appellants put one question to appellants as main question and that question reads as under:---

"Question 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 say'?"

Comparison 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 as under:-

“………….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 sentence.”

15. In 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.

17. In 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.

18. Appeal is allowed in the above terms. Confirmation case is dismissed.

19. A 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

J U D G E

Gulsher/PS