IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No. S- 81 of 2011.
Appellant: Mujahid alias Ghulam Shabir, through Mr. Sarfraz Khan Jatoi, Advocate.
Respondent: The State, through Raja Imtiaz Ali Solangi, A.P.G.
Complainant: Muhammad Uris, through Mr. Inayatullah G. Morio, Advocate.
Date of hearing: 04.06.2018.
Date of the decision: 04.06.2018.
Khadim Hussain Tunio, J.– Appellant Mujahid alias Ghulam alias Ghulam Shabir son of Muhammad Siddique Gahejo was tried by the learned Sessions Judge, Shikarpur, in Sessions Case No.154 of 2000, arising out of Crime No.10 of 2000, for offence under Sections 302, 457, 148, 149 P.P.C, registered at Police Station Gaheja (District Shikarpur). By judgment dated 29.07.2011, the appellant was convicted and sentenced on different counts, as under:
(i) For offence under Section 380 P.P.C, to suffer R.I for three years with fine of Rs.20,000/- and in default in payment of fine to undergo S.I for six months more.
(ii) For offence under Section 457 P.P.C, to suffer R.I for three years with fine of Rs.20,000/- and in default in payment fine to undergo S.I for six months more.
(iii) For offence under Section 302 (b) P.P.C, to suffer imprisonment for life as “Tazir’ and pay compensation of Rs.200,000/- to heirs of deceased as provided under Section 544-A Cr.P.C, which shall be recovered in terms of Section 544-A (2) Cr.P.C.
2. However, the appellant was extended benefit of Section 382-B Cr.P.C.
3. The facts of the prosecution case in nutshell are that, on 05.04.2000 at 0830 hours complainant Muhammad Uris lodged report with P.S Gaheja, alleging therein that he owned buffalo, which was tethered in courtyard of his house and on the night of incident i.e. 5.4.2000, he, his son Niaz Ali and nephew Imdad Ali after taking meals went to sleep; however at about 2.00 a.m. complainant woke up on noise and saw six persons who were un-tethering his buffalo and out of them he identified four persons to be Mujahid, Qutib having guns in their hands, Barkat Jeho with kalashnikov type rifle and Jurial having lathi. The complainant raised cries, to which his son Niaz Ali and nephew Imdad Ali also woke up, who saw the culprits while taking away buffalo, the complainant party chased them; meantime one Shahban Gahejo also came out of his house and joined complainant part; Niaz alias Bhooral was ahead of them, who went close to accused persons, as such accused Atta Hussain fired at him and he fell down. The accused persons while leaving buffalo escaped away. The complainant party came over Niaz alias Bhooral and found his having injuries on left thigh, left shoulder and upper lip. He was removed to Madeji hospital, wherefrom he was referred to CMC hospital, Larkana but he succumbed to his injuries on the way to hospital. The complainant then went to his Nekmard Riaz Hussain who was out of station and on his arrival and narrating him facts he then went to police station and lodged F.I.R to the above effect.
4. On completion of usual investigation the challan of the case was filed. The trial Court framed charge against appellant at Ex.2, to which he pleaded not guilty and claimed to be tried and at trial, the prosecution examined its witnesses.
6. Statement of appellant was recorded under Section 342 Cr.P.C. at Ex.14, in which he has denied the allegations as leveled by the prosecution and stated that he is innocent. He however neither examined himself on oath, nor led evidence in defence.
7. Trial Court after hearing the parties and on the assessment of evidence convicted and sentenced the appellant as stated above. Hence, appeal has been preferred against the impugned judgment.
8. Mr. Sarfraz Khan Jatoi, learned counsel for the appellant has pointed out that there is an illegality in the proceedings conducted before the trial Court; that in the statement under Section 342 Cr.P.C of the appellant all the incriminating pieces of evidence have not been put to him; that leraned trial Court has proceeded with the trial in hasty manner and did not provide an opportunity to the appellant to cross-examine PW Imdad Hussain through his counsel; that the learned trial Court has committed material illegalities and irregularities, hence impugned judgment may be set-aside and matter may be remanded to the trial Court.
9. Conversely, learned A.P.G. appearing for the State assisted by learned Advocate for complainant conceded to the above legal position and recorded their no objection for remand of the case to trial Court.
10. I have heard the learned counsel for the parties and the learned A.P.G. and gone through the entire record with their assistance.
11. Before proceeding further, Section 540 Cr.P.C is reproduced herein below for the sake convenience:
“Any Court may, at any stage of any inquiry, trial or other proceeding under this code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
12. In the case of Pervaiz Ahmed v. Munir Ahmed and another (1998 SCMR 326), it was held that:-
“Court under section 540 Cr.P.C has plenary powers for summoning a person as witness or re-examining any person already examined at any stage of the proceedings, if such evidence appears essential for just determination of controversy involved in the matter.”
13. In the case of the State v. Muhammad Yaqoob and others (2001 SCMR 308), on delay for moving such an application, the criticism of filing up lacunae or partially of the Court has also been held to be ignorable keeping in view the concept of complete justice. The relevant portion is reproduced as under:-
“Calling of additional evidence under section 540 Cr.P.C is not always conditional on defence or prosecution making an application for this purpose. It is duty of the court to do complete justice between the parties, carelessness and ignorance of one party or other or delay that may result in conclusion of the case should not be a hindrance in achieving object of doing complete justice by allowing additional evidence.”
14. In a judgment rendered by the Hon’ble Supreme Court of Pakistan in the case of Nawabzada Shah Zain Bugti and others v. The Stet (PLD 2013 S.C 160), it has been held that:-
“For the purposes of section 540 Cr.P.C the Court even without any formal application from the prosecution or accused, could summon any person as witness or examine any person in attendance as a witness or recall and re-examine any person already examined.”
15. The Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accordance with canons of justice. It cannot just sit idle as a timorous soul, but has to exercise all the enabling provisions under the law including section 540, Cr.P.C, to discover the truth. For the purpose of this provision, the Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined. In Ansar Mehmood v. Abdul Khalique (2011 SCMR 713), the judgment of the High Court was reversed and that of the trial Court restored which had allowed examination of additional evidence in terms of section 540, Cr.P.C. While doing so, the Court commented on the ambit of this provision in terms, as follows:-
“5. Bare reading of section 540, Cr.P.C. transpires that where evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination. Examining the law on the subject, reference can be had to Muhammad Murad Abro v. The State through A.G. Balochistan (2004 SCMR 966), wherein it was held that provision of section 540, Cr.P.C, is to enable the Court to go at the truth of the matter, so as to come to a proper conclusion. In the case under trial, it is obligatory to summon a person whose evidence is essential for just decision of the case. Similar view was taken in Painda Gul and another v The State and another (1987 SCMR 886), with addition that the Court has widest powers under section 540, Cr.P.C, and can summon a witness for examination at any stage of the case. However, while exercising discretion it must guard itself against the exploitation of this power by a litigant party and keep in view the guiding principle, what the ends of justice demand. Cases titled as Dildar v. State through “Pakistan Narcotics Board, Quetta (PLD 2001 Supreme Court 384) and the State v. Muhammad Yaqoob (2001 SCMR 308), lay down guide. Observations made in 2001 SCMR 308, are quoted:-
“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. It is correct that every criminal case has its own facts and therefore, no hard and fast rule criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of the section 540; Cr.P.C, it is obligatory on the Court to examine such a witness ignoring technical/ formal objection in this respect as to do justice and to avoid miscarriage of justice.”
16. In Shahbaz Masih v. The State (2007 SCMR 1631), a similar view was reiterated by the court and it was held as under:-
“7…. Court enjoys full, powers to summon and, examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of section 540 Cr.P.C to summon and examine a person when evidence of such person appears to the Court essential to do the just decision of the case. Also, the Court can examine any person in attendance though not called as a witness. The underlying object, always, is to reach truth…..”.
17. I have noticed, that the trial Court has not performed its duty as required under the law for providing opportunity of cross examination of PW Imdad Hussain by the defence counsel on behalf of the appellant, thus evidence of said witness could not be used against appellant, as he was not provided an opportunity to cross-examine the above-named witness. Little wonder that the trial Court did not notice the implicit language of Section 540 Cr.P.C, through which ample powers have been conferred upon the Court to examine any witness at any stage of the trial where examination is essential for the just decision of the case, but same was over-looked. Further after insertion of Article 10-A of the Constitution of Islamic Republic of Pakistan, the right of fair trial has been guaranteed as a fundamental right of an accused person which is meaningless unless the veracity of the prosecution witness is properly thrashed and weighed through the test of cross examination.
18. It may also be observed that the purpose of recording statement of accused under Section 342 Cr.P.C is to inform them of the prosecution case, so that they may be able to explain any circumstances appearing in the evidence against them and also for the purpose of preparing their defence. Further, the appellant has not been confronted with regard to recovery of stolen buffalo, recovery of empties, recovery of handkerchief, “Ajrak” and Sindhi cap, recovery of gun alongwith live cartridges, arrest of accused etc. while recording his statement under Section 342 Cr.P.C., enabling him to explain circumstances appearing on the evidence against him. The learned trial Court has failed to put such questions to the appellant/ accused while recording his statement under Section 342 Cr.P.C., as such same cannot be used as piece of evidence against the appellant.
19. It is pertinent to mention here that in numerous cases the Hon’ble Superior Courts have observed that the incriminating piece of evidence which if not put to accused at the time of recording of statement under Section 342 Cr.P.C, same could not be used as piece of evidence against them. In this respect reference if required be made to the cases reported as Imtiaz alias Taj v. The State and others (2018 SCMR 344), Qadan v. The State (2017 SCMR 184), Muhammad Nawaz v. The State (2016 SCMR 267), Muhammad Shah v. The State (2010 SCMR 1009), Munawar Hussain alias Asghar Ali v. The State (1991 SCMR 1601), Nadir Khan v. The State (2001 MLD 1873), Ashique Ali v. The State (2005 P.Cr.L.J 48), Nazir Ahmed and others v. The State (PLD 2005 Kar. 18), Muhammad Ayoub v. The State (2006 P.Cr.L.J 257) and Habibullah alias Bhutto and 4 others v. The State (PLD 2007 Cr.C. [Karachi] 269).
20. It has been held in the case of Habibullah alias Bhutto and 4 others v. The State (PLD 2007 Karachi 68).
“…………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.
It is not out of place to mention that, a duty and obligation is also cast upon the defence counsel to take active part in the proceedings and assist the Court if he finds any irregularity or illegality being committed by the trial Court. In order to put checkup on the proceedings, the Appellate Court is required to examine and determine, while examining the question whether failure of justice has occurred due to error, omissions or irregularity in the proceedings, whether the objection could or should have been raised at an earlier stage in the proceedings as provided under explanation to section 537, Cr. P.C. The defect in recording the statement was such where the defence counsel could and should have raised the same before the trial Judge so that a proper guidance could have been extended to the Court. If such procedure would have adopted, then the defects could have not occurred in the proceedings. Silence on the part of the defence counsel clearly indicates that he did not find the defects such, which could have prejudiced the appellants in their defence. Nevertheless, each case has to be examined from the facts and circumstances appearing thereunder and the defect committed by the trial Court. This does not mean that the trial Court is given license to commit such defects. It is the duty of the Judge to put all incriminating evidence to the accused to obtain his explanation. If he does not do so then the said piece of evidence cannot be used against the accused to convict him. If it is done then it is very dangerous thing to do so therefore the Judge should be very careful in recording such statement.”
21. The Hon’ble Supreme Court in case of Muhammad Shah v. The State (Criminal Appeal No.48/Q of 2009), and Haji Jalat Khan v. Habibullah and others (Criminal Petition No.35/Q of 2009), reported in 2010 SCMR 1009, has observed as under:
“It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross-examination for convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the 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 Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The perusal of statement of the appellant, under section 342, Cr.P.C, reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained.”
22. In view of above position, discussion, and circumstances, the appeal in hand is partly allowed. The impugned judgment dated 29.07.2011, passed by the learned Sessions Judge, Shikarpur, is set aside and case is remanded to the learned trial Court for re-calling P.W Imdad Hussain for his cross-examination through defence counsel and thereafter recording fresh statement of appellant/ accused under Section 342 Cr.P.C., inviting his attention to all the incriminating pieces of evidence placed on record and provide him an opportunity to offer his explanation with regard thereto. The appellant/ accused shall also be at liberty to lead evidence in his defence or to appear himself as his own witness in terms of section 340 (2) Cr.P.C. if he choose to do so.