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 1st 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
J U D G E
Gulsher/PS