ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.409 of 2016

Criminal Appeal No.410 of 2016

Confirmation Case No.12 of 2016

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellants: Muhammad Suleman son of Jahanzaib Khan through Mr. Shahid Nawaz Khan, advocate

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

Date of hearing: 11.09.2018

Date of announcement: 17.09.2018

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Muhammad Suleman was tried by learned 1^st Additional Sessions Judge, Malir Karachi in Sessions Case No.595 of 2012. Vide judgment dated 18.11.2016 appellant was convicted under section 302(b) read with section 34 as Tazir for committing murder of deceased Saleem Khan son of Sultan Mohammad and sentenced to death. Appellant was also convicted under section 324, PPC and sentenced to 5 years R.I. Death sentence of the appellant was subject to confirmation by this Court as required under section 374, Cr.PC. Trial court has made reference to this Court for confirmation of the death sentence or otherwise. Appellant was separately convicted under section 23(1(a) of the Sindh Arms Act, 2013 and sentenced to 5 years R.I.

2. According to the case of the prosecution, complainant Muslim Khan lodged FIR on 19.06.2012 at 1700 hours, stating therein that on 19.06.2012, he along with his cousin Saleem Khan, Ajab Gul, Amanullah was going from house towards Quaidabad to change the casing of mobile phone of Saleem Khan, when they reached near street of Taj Ground from where they purchased cigarettes, at 11:20 a.m. In the meanwhile, one Suleman and other unidentified person came behind him who abused him and inquired as to why they were standing in street. It is alleged that his cousin Saleem restrained the accused for not abusing him. On such, the accused became emotional and took out his pistol and opened fires upon them with intention to kill them, resultantly, his cousin Saleem Khan son of Sultan Khan sustained two fire injuries on his chest and left hand and accused run away towards their house, injured Saleem was taken to Jinnah Hospital by mohalla people but he succumbed to injury. Later on, cases was registered against accused under Sections 302, 324, 34, PPC at P.S. Sharafi Goth and section 23(1)(a) of the Sindh Arms Act, 2013.

3. After usual investigation, challan was submitted against the accused under the above referred sections before the trial court on 19.11.2013.

4. Trial court framed charge against the accused under the above referred sections at Ex.2. Accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined in all six prosecution witnesses. Thereafter, prosecution side was closed.

6. Trial court recorded statement of accused under section 342, Cr.PC at Ex.10, in which accused claimed false implication in this case and denied the prosecution allegations. He raised plea that he has been falsely implicated due to enmity.

7. Trial court after hearing the learned counsel for the parties and assessment of the evidence available on record vide judgment dated 18.11.2016 convicted and sentenced the appellant as stated above, hence these appeals. By this single judgment, we intend to decide aforesaid appeals.

8. Mr. Shahid Nawaz Khan, appearing on behalf of the appellant, argued that evidence of PW-4 Dr. Mubarak Ali was recorded in absence of the defence counsel and this witness was cross-examined by the accused himself. It is further contended that examination-in-chief of PW-6 Muhammad Aslam Abbasi was recorded in absence of defence counsel as reflected from his deposition; report of ballistic expert was not put to accused while recording statement of accused under section 342, Cr.PC. Learned counsel argued that questions regarding motive and medical evidence were also not put to accused for explanation; he was also not confronted with the FSL report. Lastly, he prayed for remand of case to trial court for deciding the case on merits in accordance with law.

9. Mr. Muhammad Iqbal Awan, learned D.P.G. concedes to the submissions made by the learned counsel for the appellant. It is jointly prayed for remand of the case to the trial court for recording the evidence afresh as per the settled principles of law.

10. In the present case, evidence of PW-4 Dr. Mubarak Ali was recorded in absence of the defence counsel; opportunity was provided to the accused for cross-examination but cross-examination by accused was nill. Accused had no requisite expertise in cross-examination. Examination-in-chief of PW-7 was recorded by the trial court in absence of defence counsel. It was also unwarranted. Trial court has also failed to record statement of accused under section 342, Cr.PC in accordance with law. All the incriminating pieces of evidence were not put to him. Motive for commission of offence was not put to accused in his statement for his explanation. There was no question with regard to the positive FSL report of the pistol and empties. In his statement under section 342, Cr.PC, other questions put by the trial court are stereotype, which are against the spirit of law. It is the requirement of law that all the incriminating pieces of evidence shall be put to accused in his statement under section 342, Cr.PC for his explanation but trial court failed to perform its duty carefully. In these circumstances and in view of the fair concession given by the State we find that procedure adopted by the trial court is reflective of the miscarriage of the justice and the appellant be provided fair opportunity to have the afore-referred witnesses cross-examined through defence counsel. Consequently, this appeal succeeds to the extent of remand on this ground alone.

11. In the case of Abdul Ghafoor versus the State (2011 SCMR 23) the Honourable Supreme Court has observed as under:-

“6. Admittedly both the eye-witnesses namely P. W.10 Ziaraf Ali and P.W.11 Manzoor Hussain were not cross-examined. The learned High Court adverted to this aspect but held that the appellant is to be blamed as sufficient opportunities were given to cross-examine these witnesses. In paragraph 16 of the judgment, the learned High Court observed as follows:--

"We may also mention that the examination-in-chief of the two eye-witnesses namely Ziaraf Ali (P. W.10) and Mansoor Hussain (P.W.11) was recorded on 24-11-1998 and thereafter at least 10 opportunities were granted to the defence, which failed to cross-examine the said witnesses and even no application under section 540, Cr.P.C. was ever moved to the learned trial Court for re-summoning these two eye-witnesses for the purpose of cross-examination. Even no application was moved before this Court for the said purpose although seven years have already passed when the impugned judgment was passed. So this court cannot discard the statements of both P.Ws. 10 and 11, which have gone unchallenged while the presence of P. W.12 at the spot was stamped by the injuries sustained by him during the occurrence, which cannot be doubted."

7. With immense respect to the learned Judges of the High Court, we are persuaded to hold that it is the primary responsibility of the court seized of a matter to ensure that the truth is discovered and the accused are brought to justice. If the learned trial Court found that the counsel engaged by the appellant had sought too may adjournments, even then he was not appearing, the court could either have directed that a defence counsel be provided to the appellant at State expense or could have given last opportunity to the appellant to make alternate arrangements failing which the court would proceed to decide the matter. This course was not adopted by the learned trial Court and instead on 2-12-1999 gave a total surprise to the appellant by asking him to cross-examine those witnesses for which obviously' neither the appellant had the requisite expertise nor he was prepared to do so. In these circumstances and in view of the fair concession given by the State, we find that the procedure adopted by the learned trial Court is reflective of miscarriage of justice and the appellant be provided one opportunity to have the afore-referred witnesses cross-examined. Consequently, this appeal succeeds on this short ground. The impugned judgment of the learned High Court dated 19-3-2000 and that of the learned trial Court dated 30-5-2000 are set aside. The case is remitted to District and Sessions Judge, Rawalpindi who shall either proceed with the matter himself or entrust the same to Additional District and Sessions Judge. The appellant shall be treated as under trial prisoner. He shall be given one opportunity to cross-examine the two witnesses referred to in paragraph 6 above and thereafter the court shall decide the matter within 15 days of the said opportunity given. The parties are directed to appear or arrange representation before the District Judge for 20-5-2010 who shall proceed with the matter in terms of this order.”

12. In view of the above legal position to ensure that the truth is discovered, while replying upon the cases of Qaddan and others vs. The State (2017 SCMR 148), Abdul Ghafoor versus the State (2011 SCMR 23), Muhammad Mumtaz vs. The State (1997 SCMR 1011) and Abid Hussain vs. The State (2000 PCr.LJ 1300), impugned judgments passed by trial court are set aside, case is remanded back to the trial court with direction to record evidence (Examination-in-Chief and cross-examination) of PW-4 Dr. Mubarak Ali and PW-6 Muhammad Aslam Abbasi in presence of defence counsel. In case accused fails to produce advocate of his choice then the services of defence counsel shall be provided to accused by the trial court on State expenses. Offence under section 302, PPC is punishable for death or imprisonment for life, murder case cannot be proceeded in absence of defence counsel. Statement of accused shall also be recorded afresh under section 342, Cr.PC in which all the incriminating pieces of evidence brought on record against him by the prosecution shall be put to the accused for his replies / explanation as provided under the law. Thereafter, by providing a fair opportunity to both the parties, trial court shall decide the case within three months strictly in accordance with law. Reference made by the trial court for confirmation of death sentence of the appellant is answered in negative. Counsel for the parties are directed to appear before the trial Court on 03.10.2018. Jail authorities are directed to produce the accused before the trial court. In the meanwhile, trial court shall issue summons to the complainant for the said date.

13. Let copy of this judgment be sent to Mr. Shafi Muhammad Pirzada, Additional Sessions Judge, through Registrar of this Court, wherever he is posted, for future guidance with advice to be careful in future.

14. In view of the above, appeals are disposed of in the above terms.

J U D G E

Gulsher/PS