IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal Appeal
No. D – 67 of 2013
Confirmation
Case No. D – 05 of 2013
Before:-
Mr.Justice Muhammad Iqbal Mahar
Mr.Justice Irshad Ali Shah
Appellant: Sibghatullah
Chachar, through
Mr. Mushtaque Ahmed Abbasi, Advocate
Complainant : Hafiz
Ghulam Rasool Chachar,
Through Mr. Shabbir
Ali Bozdar, Advocate
The State : Through Mr. Aftab
Ahmed Shar,
Additional
Prosecutor General
Date of hearing
: 23.04.2019
Date of decision
: 23.04.2019
JUDGMENT
Irshad Ali Shah, J; The appellant
by way of instant Criminal Appeal has impugned the judgment dated 31.08.2013 passed
by learned Sessions Judge, Ghotki, whereby he for an
offence punishable u/s 302(b) PPC has been sentenced to death as Tazir and to pay
fine of Rs.5,00,000/- to legal heirs of deceased Abdul Hanan
and Mst. Humaira.
2. Learned
trial Court after awarding death penalty to the appellant has also made a
Reference to this Court for its confirmation in terms of Section 374 Cr.P.C.
3. The
appeal and Reference are now being disposed of by this Court through single
judgment.
4. As per narration made in first
information report FIR, the appellant with rest of the culprits in furtherance
of their common intention committed Qatl-e-amd of deceased Abdul Hanan
and Mst. Humaira by causing
them fire shot injuries for that he was booked and reported upon by the police.
5. The
charge which was framed against the appellant was to the following effect;
“That
you on or about 05.04.2004 at about 1915 hours at house of complainant Hafiz Ghulam Rasool Chachar
situated in Deh Ranjhan, Taluka Ubauro along with
proclaimed offender namely Ismail s/o Allah Wassayo Chachar deadly armed with deadly guns you accused made
straight fires upon Abdul Manan complainant aged
about 18/19 years so also made fires of gun upon Mst.
Humaira d/o Rehmatullah Chachar aged about 25 years, commit Qatal
with intention to cause their death in ordinary course which resulted Abdul Manan and Mst. Humaira were died at the spot and thereby committed Qatl-e-amd, an offence punishable
u/s 302, 34 PPC within cognizance of this Court”
6. Neither the incident took
place at house of Hafiz Ghulam Rasool
nor deceased was Abdul Manan. In that situation, it
is rightly being pointed by learned counsel for the appellant that the charge
so framed against the appellant was defective one and it was not fulfilling the
requirements of Section 221 Cr.P.C. No doubt,
subsequently the place of incident and name of the deceased were corrected but
it was not enough to cure the defect as it all was done at the time when the
case was at the verge of its final disposal.
7. Be
that as it may, the appellant did not plead guilty to the charge and
prosecution to prove it examined complainant Hafiz Ghulam
Rasool and his witnesses and then closed the side.
Strange enough, the examination-in-chief of the complainant and good number of
his witnesses was recorded in absence of counsel of the accused. It was in
violation of the direction contained by Paragraph 6 of Chapter VII of Federal
Capital and Sindh Courts Criminal Circulars,
which provides that the every criminal case which entails capital punishment
could only be proceeded on appearance of a qualified legal practitioner engaged
by the accused himself or engaged for the accused at State expenses. In that
situation, it is rightly being contended by learned counsel for the appellant
that the appellant has been prejudiced in right of his defence
seriously.
8. In case
of Purna Chandra Mondal
vs. The State (1970
PCr.LJ-746), it has been observed by the Honourable
Court that;
“The provisions of Legal Remembrancer’s Manual, 1960, were made in aid of Section
340 of the Code of Criminal Procedure which confers a right on every accused
person brought before a criminal Court to be “defended” by a lawyer, which is
not the same thing as being “represented” by a lawyer. That right evidently
extends to access to the lawyer for private consultations and also affording
the latter an adequate opportunity of preparing the case for the defence. A last moment appointment of an Advocate for defending
a prisoner accused of capital offence, not only results in a breach of the
provision of the 6th paragraph of Chapter XII of the Legal Remembrancer’s Manual, 1960 and frustrates the object
behind the elaborate provisions of that chapter, such an appointment results
also in a denial to the prisoner of the right conferred on him by Section 340
of the Code of Criminal Procedure, 1898.
9. It
was not the end of the matter, learned trial Court finding the appellant to be
guilty for the offence for which he was charged, convicted and sentenced him in
the following terms;
“I hereby convict Sibghatullah in pursuance of Section 265-H(ii) Cr.P.C and sentence him for an offence u/s 302(b) PPC to
death as Tazir. He be hanged by neck, till he is dead
and u/s 544-A Cr.P.C fine of Rs.5,00,000/- (Five
Hundred thousands), if amount deposited by accused,
same be paid to legal heirs of deceased Abdul Hanan
and Mst. Humaira in equal
shares as compensation. In default of payment to fine, the accused shall suffer
S.I for six months.”
10. The
bare perusal of above paragraph reveals, the conviction and sentence, recorded
against the appellant for an offence punishable u/s 302(b) PPC, is not specifying
as to whether, it is for single or double murder, although the appellant was
charged specifically for committing murder of two persons (Abdul Hanan and Mst. Humaira). In
that situation, it could be concluded safely that the provision of Section 367 Cr.P.C have not been complied with by learned trial Court in
letter and spirit, which has rendered the impugned judgment to be illegal.
11. Learned
Additional PG for the State and learned counsel for the complainant when were
confronted with above omissions and illegalities were fair enough to concede
for remand of the matter for de novo trial.
12. In
view of above, the impugned judgment is set-aside with direction to learned
trial Court to proceed with the case against the appellant afresh/de novo in
accordance with law.
13. The
instant Criminal Appeal and the Reference stand disposed of in above terms.
Judge
Judge
ARBROHI