Cr. Appeal No. 183 of 2017
Date Order with Signature of the Judge
1.For hearing of Case.
2.For hearing of M.A.No.4346/2017.
11th December, 2017.
M/s Mehmood A. Qureshi & Arshad Mehmood, Advocates for appellants.
Ms. Seema Zaidi, Deputy Prosecutor General, Sindh.
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Aftab Ahmed Gorar, J.:- At a trial held by learned IIIrd Additional District & Sessions Judge, Karachi-Central the appellants, having been found guilty of offences, vide impugned judgment dated 28.03.2017 passed in Sessions Case No.19/2011 arising out of FIR No.89/2010 under section 4&5 Explosive Substance Act, 1908 & 13-E Arms Ordinance, Police Station Super Market, Karachi, have been convicted and sentenced under section 265(H)(ii) Cr.P.C. to suffer RI for ten years with confiscation of their property either movable or immovable to the Government and under section 13-E Arms Ordinance for three years RI. The sentences have been directed to run concurrently.
2. Learned counsel for the appellants has contended that the recovered property i.e. arms and ammunition were not made the case property nor produced in court. He added that though the recovery was affected from the thickly populated area in day time but no person of the locality was cited as mashir of the arrest and alleged recovery; trial court did not consider the improvements, discrepancies and contradictions in the statements of PWs and witnesses were examined in seven years and most of them were given up by the prosecution and closed its side which creates serious doubt. Lastly Learned counsel for the appellants requested that matter may be remanded back to the trial court for denovo trial, which request was conceded by the learned Deputy Prosecutor General, Sindh.
3. I have heard the exhaustive arguments advanced by learned counsel for the parties and perused the record with their able assistance.
4. During the course of arguments, it came to light that the learned Trial Court while recording conviction and sentence of the appellants has not specifically charge-sheeted the appellants which clearly depicts that the appellants have been misled in their defence which has caused prejudice to them. It is well settled principle of law that charge against accused shall be specific, fair and clear in all respects to provide an opportunity to the accused to defend them in due course of trial. Charge is a brief formulation of specific allegations made against accused person, who is entitled to know its nature at the very early stage of the trial. It must convey to the accused with sufficient transparency and clarity as to what the prosecution intends to prove against him. Under section 232 Cr.P.C. Appellate Court is vested with the power to direct a new trial or quash the conviction, if it is found that on account of omission of particulars in framing charge, prejudice has been caused to the accused and that he has not been provided an opportunity of clear understanding of the charge to defend himself. According to mandatory provisions of section 233 Cr.P.C. for every distinct offence, a separate charge sheet should be framed in order to enable the accused to defend himself against the accusations levelled against him while under section 235 Cr.P.C. a proper mechanism for trial of an accused, charged for more than one offence, has been provided. The learned Trial Court has not complied with the mandatory provisions of section 233 Cr.P.C. by not framing separate charge against the appellants-convicts.
5. As regards the contention of learned counsel for the appellants that recovered property was required to be put to the accused as provided under section 342 Cr.P.C, it may not be out of place to mention here that examination of accused under section 342 Cr.P.C. is not only a mandate to enable the accused to explain any circumstance appearing against him in the prosecution evidence. Reliance in this regard may be made to the case reported in 2010 SCMR 1009. Reliance has also been placed on the case of ABDUL GHAFFAR V/S THE STATE (2011 MLD 239), wherein a Single Judge of this Court held that recovery of case property not put to the accused while his statement under section 342 was recorded, cannot be used as evidence against the accused in the circumstances. Reliance can also be placed on SHIRAL ALIAS SHER ALI V/S THE STATE (1999 SCMR 697), wherein Hon'ble Supreme Court held that law requires that any circumstance appearing in the evidence must be put to the accused before it uses against him. There is absolutely no reason as to why same was not suggested to the appellants and their explanation obtained there to. The court should not and must not disturb its judicial mind with gruesome nature or heinousness of offence, rather to appreciate the evidence in a proper and legal rhythm; otherwise any such influence might lead the trial court to a patently wrong conclusion. Reference may be made to the case titled AZEEM KHAN AND ANOTHER VS. MUJAHID KHAN & OTHERS (2016 SCMR 274). The court should not derail from the settled principle that in case of possibility of two interpretations of evidence, one favouring the prosecution and other favouring the accused, the latter one should be acted upon. Reference can be made to the case titled MUHAMMAD SHAH V/S THE STATE (2010 SCMR 1009).
6. It appears from the impugned judgment that the learned Trial Court has also convicted and sentenced the appellants under section 4&5 Explosive Substance Act, 1908 & 13-E Arms Ordinance. It has been observed in plethora of cases that the Anti- Terrorism Courts usually frame a charge in cases where an accused is charged under the Anti-Terrorism Act, 1997 alongwith corresponding offences of the Pakistan Penal Code connected with the offences of ATA or schedule offences. In such like cases, separate charge sheets should be formulated under each offence of both the Statute. Similar, should be the case, in other offences relating to Anti-Terrorism Act, 1997 and general law with which an accused is charged and is being tried alongwith the special law or schedule offences in one trial.
7. Keeping in view the above mentioned irregularities and illegalities causing miscarriage of justice, I, while setting aside the convictions and sentences of the appellants convict, hereby remand the case to the learned trial Court for denovo trial right from the stage of framing fresh charge against the appellants. During this period the appellants shall remain as under trial prisoners. The learned Trial Court shall conclude the trial expeditiously. Office is directed to send the record to the learned Trial Court within two days, without fail. The appellants would be at liberty to file application for bail which shall be disposed of independently.
8. The appeal alongwith listed application stands disposed of in the above terms.
*Aamir/PS* J U D G E