IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

   Crl.J.A.No. D –117  of 2017

   Crl.Appeal No.-D 119 of 2017.

   Conf.Case No. D – 07 of 2017.

 

 

 

 

     Before Mr.Justice Naimatullah Phulpoto

          Mr.Justice Shamsuddin Abbasi.   

 

 

 

 

Appellant:                      Qaim Dhundhu

                                      Through Mr.Qurban Ali Malano

                                      Advocate.

 

 

Respondent:                  The State

                                      through Mr.Abdul Rehman Kolachi

                                      D.P.G.

 

 

Date of hearing24th July, 2018.

 

 

 

 

 

                                      JUDGMENT.

 

 

NAIMATULLAH PHULPOTO, J:- Appellant Qaim son of Godho was tried by learned Additional Sessions Judge Ubauro in Sessions Case No.468 of 2012 arising out of Crime No.62/2012 Police Station Wasti Jiwan Shah registered for offences under Section 302, 311,PPC. On the conclusion of trial vide judgment dated 25.8.2017 the appellant  was convicted under Section 302 (b) PPC as Tazir  and sentenced to death. He was ordered to be hanged by neck till his death. He was also ordered to pay compensation  of Rs.200,000/- to the legal heirs of deceased in terms of Section 544-A, Cr.P.C and in case of default in payment of compensation, he was ordered to suffer S.I for 06 months more. The death sentence was subject to confirmation by this Court. The trial Court has made reference to this Court for confirmation of death sentence or otherwise.

2.      The appeals were preferred before this Court, which were admitted to regular hearing. Notice was issued to the learned Addl.P.G.

3.      Briefly facts leading to the filing of appeals are that ASI Muhammad Hajan Gadani alongwith his sub-ordinate staff left Police Station Wasti Jewan Shah for patrolling on 08.7.2012 at 1810 hours. During patrolling complainant ASI received spy information that appellant Qaim would kill his sister Mst.Marvi on the allegation of developing illicit relations with one  Yaseen. ASI complainant informed his sub-ordinate staff about such information and proceeded to the house of accused. It is alleged that at 0300 hours police party reached near the houseof the accused. It is alleged that on woman came out of the house of accused and she was crying. It is alleged that accused armed with KK came out of his house and fired upon said lady. She sustained fire arm injuries. Another woman also came out of the house for rescue first woman and she was also fired. It is alleged that accused taking the benefit of dark succeeded in running away from the scene of incident. Police party saw that one woman died at the spot and other was still struggling for life. It is further alleged that another person appeared at the place of incident and informed the police that incident had occurred on the allegation of KARAP. Thereafter ASI complainant brought dead body of the woman to Taluka Hospital Ghotki for postmortem and injured was also brought to the hospital for treatment. Thereafter injured lady was referred to Sukkur Hospital for further treatment. It is alleged that injured succumbed to  the injuries on the way to the civil hospital Sukkur. F.I.R of the incident was lodged on behalf of State vide Crime No.27/2012 for offence under Section 302, 311, PPC. During investigation police could not arrest the appellant and challan was submitted under Section 512, Cr.P.C under the aforesaid sections and thereafter the appellant was arrested.

4.      Trial Court framed the charge against the appellant under Section 302, PPC for committing the murder of his two sisters to which the accused pleaded not guilty and claimed trial.

5.      At the trial prosecution examined  PW 1 PC Noor Muhammad Shaikh Ex.9, he produced memo of seeing the dead body of Mst.Marvi, and seeing the injuries of Mst.Samani, receipt of handing over dead body of Mst.Marvi Exh.9/B, memo of seeing place of vardat Exh.9/C, PW 2 SIP Muhammad Hajan Gadani Exh.10 he produced F.I.R as Exh.10/A. attested photo copy of roznamcha entry No.12 as Exh.10/B, memo of collecting blood stained clothes of deceased as Exh.10/B, memo of seeing dead body of Mst.Samani as Exh.10/C, Danishnama of dead body of Mst.Samani Exh.10/D, Danishnama of dead body of Mst.Marvi Exh.10/E, memo of securing blood stained clothes of Mst.Marvi Exh.10/G, PW 3 Dr.Rozia Begum Exh.11 (who conducted post mortem of Mst.Marvi) she produced police letter of post mortem. Exh.11/A, postmortem report as Exh.11/B, PW 4 Dr.Shakeela Parveen Exh.12 she produced  police letter of post mortem Exh.12/A, post mortem report as Exh.12/B, PW 5 Muhammad Azhar Tapedar Exh.13 he produced sketch of the place of incident as Exh.13/A, PW 6 SIP Abdul Haq I.O Exh.14 PW 7 PC Niaz Ahmed Exh.15, PW 8 SIP Muhammad Bachal second I.O. Thereafter prosecution side was closed.

6.      Statement of appellant under Section 342 Cr.P.C as Exh.18 was recorded in which he has denied the allegations leveled against them  and claimed his innocence. The appellant did not examine himself on oath nor led any defence in disproof of the allegations.

 

7.      Learned trial Court after hearing the learned counsel for the accused and Prosecutor on the assessment of evidence available on record vide judgment dated 25.08.2017 convicted the appellant under Section 302(b) PPC and sentenced to death and made reference to this Court for confirmation of death sentence of the appellant.

8.      By this single judgment we intend to dispose of Crl.Jail Appeal No.D-117 of 2017, Crl.Appeal No.D-119 of 2017 and Crl.Confirmation Case No.07 of 2017.

9.      Learned counsel for the appellant after going through the evidence has pointed out that the evidence of the complainant has been recorded in absence of defence counsel even the witnesses were cross examined by the accused himself. It is pointed out that trial Court has committed illegality by not providing facility of any defence counsel to the appellant. It is also pointed out that trial was vitiated and in support of such contention, he placed his reliance upon Shafique Ahmed alias Shahjee v The State (PLD 2006 Karachi 377).

10.    Learned DPG has conceded to the legal position and requested for remand of the case to the trial Court for recording the evidence of the prosecution witnesses in presence of defence counsel and for providing a fair opportunity to the accused during trial.

11.    We have carefully hearing the learned counsel for the parties and perused the relevant record.

12.    As regard to the legal objection with regard to the capital punishment, this Court in a case of  Shafique Ahmed (supra) has held as under:-

“9.Now it is to be seen whether the trial conducted  in the above manner has been vitiated of otherwise.

 

10. Article 10 of Constitution of Islamic Republic of Pakistan, 1973 provides that the accused shall not be denied the right to consult and be defended by a legal practitioner of his choice. Under section 340(1) Cr.P.C. accused is entitled, as a matter of right, to be defended by a pleader. The said provision reads as under:-

 

“340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness.-(1) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.”

 

11. Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars provides that on the committal of the case the Magistrate is required to ascertain from the accused as to whether he intends to engage a legal representative at his own expense otherwise the Sessions Court would provide an Advocate on State expense to defend him. The said Circular reads as under:-

 

“6. In all cases in a Court of Session in which any person is liable to be sentenced to death, the accused shall be informed by the Committing Magistrate at the time of committal, or if the case has already been committed by  the Sessions Court that, unless he intends to make his own arrangements for legal assistance, the Sessions Court will engage a Legal practitioner at Government expense to appear before it on his behalf. If it is  ascertained that he does not intend to engage a legal representative at his own opense, a qualified Legal Practitioner shall be engaged by the Sessions Court concerned to undertake the defence and his remuneration, as well as the copying expenses incurred by him, shall be paid by Government.

 

The appointment of an advocate or pleader for defence should not be deferred until the accused has been called upon to plead. The Advocate or pleader should always be appointed in sufficient time to enable him to take copies of the deposition and other necessary papers which should be furnished free of cost before the commencement of the trial. If after the appointment of such legal representative the accused appoints another Advocate or pleader, the Advocate or pleader appointed by the Court may still in its discretion be allowed his fee for the case.”

 

12. Rule 35 of Sindh Chief Court Rules (Appellate Side) also deals with the same subject which reads as under:-

 

“35. In what matters Advocate appointed at Government cost. When on a submission for confirmation under section 374 of the Code  of Criminal Procedure, 1898, or on an appeal form an acquittal or on an application for revision by enhancement of sentence the accused is undefended, an Advocate shall be appointed by the Division Court to undertake the defence at the cost of Government, in accordance with the Government notification or rules relating thereto. Such Advocate shall be supplied a copy of the paper book free of cost.”

 

13. From the above position it follows that an accused is required to be defended by a counsel of his choice as a matter of right. If an Advocate appears on behalf of the accused then he is required to be allowed to defend the accused. In an offence involves capital punishment, the law protects the rights of the accused as a duty has been cast upon the State to bear the expense of the Advocate if the accused is unable to engage an Advocate. When the committal proceedings were being conducted then at the time of committing the accused to the Court of Session the Magistrate was required to inquire form the accused as to whether he would like to engage  Advocate of his choice and in case he was unable to do so then the accused was required to be informed that the Sessions Court would provide him an Advocate on State expense to defend his case.The committal proceedings have been abolished. Therefore, now the Magistrate, before the case is sent up to the Court of Session, shall inquire from the accused about the requirement of Circular 6 of the Federal Capital and Sindh Courts Criminal Circulars. Such facts should be mentioned in the diary to facilitate the Court of Session to decide in which cases a counsel on State expense is required to be appointed. In other cases or in which the Magistrate has not obtained the required information, as soon as the accused appears before the Court of Session, it is the duty of the said Court to ascertain whether the accused is represented by an Advocate or otherwise. If he is not being represented by an advocate then the Sessions Court is bound to engage a legal practitioner on Government expense to defend the accused. It is one of the duties of the Court of Session to see that the accused is represented by a qualified legal practitioner in the cases involving capital punishment. Thus, it is the mandate of the law that cases involving capital punishment shall not be tried in the absence of Advocate for the accused or proceeded with. Without first appointing an Advocate for the accused to defend him if he is unable to do so”.

 

 

13.    From the perusal of the evidence we have come to the conclusion that the evidence of the ASI/complainant has been recorded in absence of the defence counsel and witnesses were cross examined by the accused himself. It is against the principle of fair trial and fair opportunity, therefore the trial has been vitiated as the case involves capital punishment. Moreover, the offence carries capital punishment and the appellant has been awarded death sentence, which in view of the dictum as laid down in the case of Ghulam Rasool Shah v The State (2011 SC M R 735) the Honourable Supreme Court has held as under:-

 

“14.Undeniably, to ascertain eh truth or falsity to a charge the stateemnts of the witnesses are judged by conducting cross-examination. It is always said to be the most powerful engine to test the credibility. Statements recorded without going through mill of cross-examination is bound to result in injustice and substantial injustice may occur to an accused. Safer principle is to allow cross-examination by granting reasonable opportunity. Similarly, provision of a defence counsel at State expenses should be out of lawyers having acumen, interest and some experience of trial of murder case. Though the accused have no choice claiming engagement of a particular counsel at State expenses yet he should be given the choice to select one of the counsel out of list of defence counsel maintained by the Court.

 

15.Having considered the case of appellants, we are of the view that the appellants should be given time to engage a counsel privately of their own choice, failing which the learned trial Court shall provide them the defence counsel at state expenses of their choice, out of the list maintained by the Court. If the appellants fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expenses, the Court will be at liberty to proceed with the trial and the defence counsel so appointed shall be called upon to conduct cross-examination on prosecution witnesses and call for evidence in defence.

 

16.For what has been discussed above, we allow the appeals, set aside the judgment  of the leaned Courts below and remit the case back to the trial Court for denovo trial. Learned trial Court shall consider the question of its jurisdiction in terms of section 38 of the Anti-Terrorism Act, 1997, before framing of charge. The appellants shall be treated as, under trial prisoners”.

 

14.    For the what has been stated above, we have no hesitation to hold that conviction and sentence recorded by the trial Court are not sustainable in law,  therefore instant appeals are allowed to the extent that the case is remanded back to the trial Court with direction to record the evidence of prosecution witnesses in presence of defence counsel. Thereafter, learned trial Court after hearing the parties shall decide the case strictly in accordance with law. The answer in confirmation case is negative.

15.    Learned counsel for appellant points out that the appellant was on bail during the trial. Learned counsel for appellant may point out this fact to the learned trial Court during the trial. The case shall be decided expeditiously.

 

 

 

                                                                                                JUDGE

 

                                                                   JUDGE

 

 

 

 

 

Akber.