THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal 292 of 2016

Confirmation Case No.06 of 2016

                Present:         

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellant:                      Bilal Hussain son of Muhammad Hannan, through Mr. Raj Ali Wahid Kanwar, Advocate

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

Date of hearing:              03.12.2018

Date of announcement: 10.12.2018

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Bilal Hussain was tried along with Muhammad Hannan (since acquitted) by Mr. Inam Ali Kalhoro, learned Additional Sessions Judge-IV, Karachi East in Sessions Case No.566 of 2012, for offences under sections 302/324/34, PPC. After full-dressed trial, by judgment dated 17.08.2016, accused Muhammad Hannan was acquitted of the charge. However, trial court convicted and sentenced the appellant as under:-

1. Appellant is convicted under section 302(b), PPC and sentenced to death for committing Qatl-i-Amd of deceased Muhammad Sultan. He be hanged by neck till death. He was also directed to pay Rs.200,000/- as compensation to the legal heirs of deceased Muhammad Sultan in view of section 544-A, Cr.PC.

2. Appellant is also convicted under section 302(b), PPC and sentenced to death for committing Qatl-i-Amd of deceased Haji Zaman. He be hanged by neck till death. He was also directed to pay Rs.200,000/- as compensation to the legal heirs of deceased Haji Zaman in view of section 544-A, Cr.PC.

3. Appellant is convicted under section 324, PPC and sentenced to undergo 5 years R.I. for attempting to commit Qatl-i-Amd of injured Faisal and to pay fine of Rs.10,000/- and in payment of default he shall further suffer S.I. for two months.

Trial Court made Confirmation Reference to this Court under Section 374, Cr.PC.

2. Brief facts of the prosecution case as reflected from the judgment of the trial court are that FIR was lodged by complainant Luqman Khan on 04.04.2012 at P.S. Gulshan-e-Iqbal, Karachi, alleging therein that his brothers Muhammad Sultan, aged about 42 years and Haji Zaman, aged about 40 years were residing along with him. His brother Haji Zaman had a dispute with Ibrahim Bengali on transaction of some amount. Such quarrel took place between them on 31.03.2012 but the said dispute was settled by the locality persons. It is further stated that absconding accused Ibrahim was continuously issuing threats to his brother Haji Zaman to kill him. It is alleged that on 03.04.2012, at about 09:55 hours Haji Zaman and Muhammad Sultan along with nephew Muhammad Faisal were sitting outside of the house and taking tea. It is stated that six persons on three motorcycles appeared there. They were Ibrahim Bengali son of Muhammad Hannan, Bilal Bengali son of Muhammad Hannan, Sadam Bengali son of Muhammad Hannan, Muhammad Hannan son of Muhammad Majeed and two unknown boys/culprits, whereas Asghar Bangali and two unknown persons were sitting in Honda Civic Car. It is alleged that accused persons took out pistols and started firing, in the result committed murder of brother complainant, namely, Haji Zaman whereas PWs Muhammad Sultan and Muhammad Faisal sustained serious injuries. It is alleged that accused persons drove away on motorcycles and car. The persons of the locality took Haji Zaman and Muhammad Faisal to Patel Hospital for treatment whereas Muhammad Sultan was taken to Jinnah Hospital, who succumbed to the injuries on the way to the Hospital. Thereafter, FIR of the incident was lodged against the accused under the above referred sections.

3. After usual investigation, challan was submitted against accused Muhammad Hannan son of Muhammad Majeed and Bilal Hussain alias Bilawal son of Muhammad Hannan under sections 302/324/34, PPC. Accused Ibrahim Bengali son of Muhammad Hannan, Asghar son of Muhammad Hannan, Sadam Bengali son of Muhammad Hannan and Yousuf son of Muhammad Hannan were shown as absconders in challan and case proceeded against absconding accused under section 512, Cr.PC. Proceedings under sections 87 and 88, Cr.PC were concluded against them.

4. Learned trial Court framed charge against the accused Muhammad Hannan and Bilal Hussain at Ex.4. Both the accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined PW-1 complainant Luqman Khan at Ex.5, PW-2 Islam Khan at Ex.6, PW-3, ASIP Azadar Hussain at Ex.8, PW-4 Muhammad Faisal at Ex.11, PW-5 Lala Abdul Rahim at Ex.12, PW-6 ASIP Muhammad Zubair Khan at Ex.13, PW-7 ADJ Mrs. Zahida Parveen at Ex.14, PW-8 Dr. Syed Farhat Abbas at Ex.16, PW-9 Inspector Zulfiqar Ali at Ex.17, PW-10 Dr. Kaleem Shahzada at Ex.18, PW-11 Muhammad Arif Shahzada at Ex-19, PW-12 Inspector Athar Ahmed at Ex.20. Thereafter, prosecution side was closed vide statement at Ex.21.

6. Trial court recorded statements of accused under section 342, Cr.PC at Ex.22 and 23, accused claimed false implication in this case and denied the prosecution allegations. In a question, have you anything else to say, appellant Bilal Hussain replied as under:

“It is false, deceased were murdered by Ilaqa people due to enmity. I was minor and student of class-IX at the time of incident. I produce copies of Admit cards at Ex.23/A, Ex.23/B and 23/C and Birth Certificate at Ex.23/D. I pray for justice.”

Appellant did not examine himself on oath, however, he examined DW-1 Abdul Maalik in his defence.

7. Learned trial Judge, after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 17.08.2016, acquitted accused Muhammad Hannan son of Muhammad Majeed by extending benefit of doubt and convicted appellant Bilal Hussain under section 302(b), PPC and sentenced him to death, subject to confirmation by this Court. He was also convicted under section 324, PPC and sentenced to five years R.I.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 17.03.2016 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellant raised following contentions:

(i) That the appellant was a juvenile on the date of incident and he had produced three admit cards and birth certificate in his statement recorded under section 342, Cr.PC, showing his date of birth as 20.09.1995 that he was below the age of 18 years of age at the time of incident but the trial Court did not record a categorical finding with regard to the date of birth of appellant Bilal Hussain;

(ii) That appellant was juvenile offender and his trial with co-accused Muhammad Hannan was contrary to the provisions of special law.

(iii) That all the material pieces of evidence relied upon by the prosecution against the accused were not put to him at the time of recording his statement under section 342, Cr.PC as such no opportunity was provided to the accused to explain his position in that regard. Denial to such opportunity to the accused defeats the ends of justice.

In support of his contentions, learned counsel for the appellant has relied upon the following cases:

1. 2012 SCMR 1400 (Om Prakash Vs. The State of Rajasthan and another)

2. 2010 SCMR 1009 (Muhammad Shah vs. The State)

3. 2017 SCMR 148 (Qaddan and others vs. The State)

4. 2015 SCMR 955 (Sher Bahadur Vs. Fayyaz and another)

10. Mr. Muhammad Iqbal, learned Deputy Prosecutor General Sindh, conceded to the contentions raised by learned defence counsel that the trial Court had failed to put material questions to the appellant with regard to the positive ballistic and chemical reports. Learned D.P.G. further submits that the trial Court failed to put question of motive to the accused for his explanation. As regards to the plea of juvenility raised by the appellant, D.P.G. admitted that said plea has not been considered by the trial Court. Learned D.P.G. has also prayed for remand of the case to the trial court for deciding the case afresh in accordance with law.

11. In order to appreciate the contentions of the learned counsel for the parties, relevant portion of impugned judgment is reproduced as under:-

“In order to ascertain truth statements of PWs Islam Khan and Muhammad Faisal were also recorded before the then learned JM (PW-7) Mrs. Zahida Parveen, who has also verified the contents of same (Ex.6/D and 6/E) as true and correct. Both the PWs Islam Khan and Muhammad Faisal in their statements have fully implicated the accused Bilal Hussain as deposed in this court, however, they have not assigned any part in making fire shots upon the injured and deceased persons, but only showed his appearance in the car. Both the witnesses were cross-examined at length, but their evidence has gone unrebutted and unchallenged. Besides, investigation was carried out by PW-6 ASIP Azadar Hussain who inspected the place of incident on 04.04.2012 at 0330 hours and secured 10 fire empty shells of 9mm bore and four sikkas from the place of incident. he also secured bloodstained earth from the spot. IO sent the empties to FSL Laboratory. As per FLS report Ex.20/I it reflects that crime empties which were recovered from the place of incident were fired empty of 9mm. To such aspect of the case accused Bilal Hussain neither examined himself on oath under section 340(2), Cr.PC nor produced any evidence to show that he was not present at the place of incident at the relevant time. Medical evidence also supports the version of complainant. PWs Ismail Khan, injured Muhammad Faisal and MLO Dr. S. Farhat Abbas that deceased persons had died due to firearm injuries and injured Faisal also received bullet injuries. MLO Dr. S. Farhat Abbas and Dr. Jagdesh conducted the postmortem of deceased persons and issued certificates of cause of death and opined that “cause of death was cardiorespiratory failure due to result of firing from the arm projectile.” During investigation IO SIP Muhammad Zubair sent the bloodstained earth and clothes of deceased (article 1 to 3) to the chemical examiner. As per chemical examiner report Ex.20/G (Article 1 to 3) noted above were stained with human blood.

Accused Hannan has examined himself on oath under section 340(2), Cr.PC and stated that on 03.04.2012 he was sitting outside the shop situated in his house along with Abdul Malik, Ramizul Haq, Bukhshal, Muhammad Ghani and Muhammad Habib. On that day there was plaster on his right leg due to fracture and was not in a position to walk. He produced certificates of medical treatment as Ex.24/A (containing 5 pages). His version has also been supported by DW-1 Abdul Malik who has stated that, “on 03.04.2012 at about 08:30 p.m. I was present at the shop of accused Hannan along with 4 to 5 other persons and in the meanwhile I heard sound of firing”.

In view of the above and the discussed circumstances as well as the consistency in the series of facts, referred herein above. I have reached to the conclusion that the accused Bilal Hussain has committed the charged offences and he during his statement recorded under section 342, Cr.PC has failed to give any plausible reason in respect of his noninvolvement in the commission of murder of deceased persons and also causing injury to the injured Faisal. However, both the eyewitnesses of the incident, namely, Islam Khan and Muhammad Faisal have deposed that accused Hannan was sitting in the car, but not made firing upon the deceased/injured persons. Accused in his statement on oath has also taken the plea that he was not present at the place of incident as his leg was fractured and he was unable to move, as such, the presence of accused Hannan at the place of incident becomes doubtful. The points Nos.2 and 3 are therefore, answered accordingly.”

12. We have carefully heard the learned counsel for the parties and perused the prosecution evidence, statement of accused Bilal Hussain recorded under section 342, Cr.PC and the impugned judgment of the trial Court.

13. We have found that question with regard to the motive for commission of offence was not put to the accused for his explanation. Trial court in the judgment at Page 15 has relied upon the positive report of FSL Ex.21 and positive report of the chemical examiner at Ex.20/G but questions regarding positive reports of the Ballistic and Chemical Examiners were also not put to the accused in his statement recorded under Section 342, Cr.PC. Appellant Bilal Hussain had produced his Birth certificate Ex.23/D and three admit cards Ex.23/A, 23/B and 23/C in his statement under section 342, Cr.PC to show that he was juvenile at the time of incident but such plea was not considered by the trial court.

14. All the material pieces of evidence relied upon by the prosecution against accused were not put to him under section 342, Cr.PC and denial of such opportunity to the accused defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement violates the trial. 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.”

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, admittedly, the incident took place on 03.04.2012. Appellant was arrested on 17.04.2012. Appellant was tried by trial court. On the conclusion of trial, for the first time, appellant in his statement u/s 342, Cr.PC at Ex.23 raised plea of juvenility while relying upon birth certificate documents. In our opinion, to do complete justice between the parties, trial Court was required to determine the age of accused in accordance with law. Learned trial Judge did not perform functions diligently while conducting the trial and he had taken the matter lightly in a casual manner and awarded death sentence to the accused Bilal Hussain as such the appellant was prejudiced in his trial and defence. Therefore, a miscarriage of justice has occurred in the case. Procedure adopted by trial Court was an illegal procedure that cannot be cured under section 537, Cr.PC. Thus, it has vitiated the conviction and sentence recorded by the trial court. Hence, impugned judgment is liable to be set aside to the extent of appellant Bilal Hussain only.

16. In the light of what has been discussed above, the conviction and sentence awarded to appellant under impugned judgment are set aside. Appeal is partly allowed. Reference for confirmation of death sentence is answered in negative. Case is remanded to trial Court with direction to record findings on the plea of juvenility raised by appellant by producing documents at the time of recording the statement of accused. The case is remanded back to the trial court. Learned Sessions Judge, Karachi East, shall withdraw the case from the trial court and trial shall be conducted by him in accordance with law. Trial court shall consider the plea of juvenility and record statement of accused under section 342, Cr.PC afresh by putting all material pieces of evidence relied upon by the prosecution against the accused so as to provide an opportunity to the accused to explain his position in that regard.

17. Needless to mention, if trial court (Sessions Judge), after determination of age of appellant, comes to the conclusion that the appellant was juvenile at the time of the incident, then the trial of the appellant shall be conducted under the relevant provisions of law.

18. We expect that this whole exercise will be completed by the learned Sessions Judge within a period of three months, in accordance with law. R and Ps be returned back to the trial court forthwith. Counsel for the parties are directed to appear before the trial Court on 20.12.2018.

19. Let a copy of this judgment be sent to Mr. Inam Ali Kalhoro, Additional District and Sessions Judge, through learned Registrar of this Court, wherever he is posted for future guidance.

J U D G E

J U D G E

Gulsher/PS