Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Jail Appeal No. D – 04 of 2016
Conf. Case No. D – 01 of 2016
Before :
Mr. Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
Date of hearing : 05.11.2019.
Mr. A. R. Faruq Pirzada,
Advocate for appellant.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J. – Ramzan son of Muhammad Hassan Ansari, appellant
was tried by learned IInd Additional Sessions Judge, Khairpur in
Sessions Case No.297/2011 for offences under Sections 302, 109, 34, PPC,
outcome of FIR No.20 of 2011 of P.S Pir Jo Goth. After regular trial, vide
judgment dated 28.12.2015, appellant was convicted under Section 302(b), PPC as
Ta’zir and sentenced to death. Trial Court made Reference to this Court for
confirmation of death sentence as required under Section 374, Cr.P.C.
2. Brief
facts of the prosecution case, as reflected from the judgment of the trial
Court, are that complainant Muhammad Chuttal Maitlo, Incharge Prisoners Party lodged FIR on 09.03.2011 alleging therein
that on 09.03.2011, he along with prisoners
and police party left Central Prison, Khairpur and they brought the prisoners along with
prisoner Nawab at Civil Court,
Pir Jo Goth. Relatives of prisoners came to meet with them. One Raees Khan son
of prisoner Nawab Rind and
his other relatives also came to
meet with him. Meanwhile, at about
0900 hours,
one motorcycle, on which two persons were boarded, came there; one person stood near
the motorcycle while other accused near prisoner Nawab took out pistol and made straight fires upon him and
committed his murder. The complainant party apprehended the
said person along with pistol. On inquiry, the apprehended
person disclosed his name as Ramzan son of Muhammad Hassan Ansari and
for escaped accused he disclosed his name as Qudoos Ansari. They, on pretext of old murderous dispute
at the instigation of Suleman
Ansari, had committed the murder of Nawab Rind. Such memo of arrest
and recovery was prepared at the spot
in presence of mashirs Raees Khan and
Fareed Khan, then accused and property were brought at Police
Station, Pir Jo Goth, where complainant lodged FIR bearing Crime No.20/2011 for
offences under Sections 302, 109, PPC.
3. After
usual investigation, challan was submitted against the accused under the above
referred sections.
4. Trial
Court framed the charge against the accused at Ex.02. Accused made the charge
with denial.
5. In
order to substantiate the charge, prosecution examined PW-1 Muhammad Chuttal
(complainant), who produced roznamcha
entry, memo of arrest and recovery and FIR; PW-2 Dr. Inayat Ali Memon (Medical
Officer), who produced police letter and postmortem report; PW-3 ASI Sifat Ali;
PW-4 PC Muhammad Sharif (mashir), who
produced memo of wardat, letter for
postmortem, receipt of dead body and memo of last worn clothes; PW-5 SIO/SIP
Ghulam Asghar, who produced inquest report, letter to concerned Mukhtiarkar for
sketch and report of place of wardat,
letter to SSP for obtaining permission for sending bloodstained earth to
chemical examiner, chemical report; PW-6 ASI Zahid Hussain; PW-7 PC Amanullah;
PW-8 Raees Khan (mashir); PW-9 Fareed
Khan; PW-10 Inspector Altaf Hussain Burdi; and PW-11 Tapedar Abdul Rasheed, who
produced sketch and report. Thereafter, prosecution side was closed.
6. Statement
of the accused was recorded under Section 342, Cr. P.C at Ex.21, in which accused
claimed false implication in this case and denied the prosecution allegations.
Accused did not lead evidence in his defence and declined to give statement on
oath in disproof of prosecution allegations.
7. Trial
Court after hearing the learned counsel for the parties and assessment of the
evidence, vide judgment dated 28.12.2015, convicted and sentenced the appellant
to death, as stated above.
8. By
this single judgment, we intend to decide the aforesaid Appeal as well as
Confirmation Reference made by the trial Court.
9. Prior
to the start of arguments by learned counsel for the appellant, learned Additional
P.G for the State very fairly drew this Court’s attention to the defect in
recording of the statement of accused under Section 342, Cr.P.C. It is submitted
that trial Court has relied upon the incriminating pieces of evidence
particularly the recovery of pistol from the possession of the accused and
positive report of the ballistic expert, but such pieces of evidence were not
put to the accused in his statement recorded under Section 342, Cr.P.C, for his
explanation. Learned Additional P.G further pointed out that no question with
regard to the motive has been put to the accused for his explanation and report
of the Forensic Science Laboratory was also not put to the accused in his
statement recorded under Section 342, Cr.P.C.
Learned
advocate for the appellant as well as learned Additional P.G, in one voice,
argued that since mandatory provision of law has been violated, the case should
be remanded to the trial Court to re-record the statement of accused under
Section 342, Cr.P.C. In support of the contentions, reliance has been placed
upon the cases reported as Muhammad
Shah v. The State (2010 SCMR 1009) and Qaddan and others v. The State (2017
SCMR 148) and an unreported judgment dated 28.10.2010 in Criminal
Appeal No.292 of 2009 in the case of Muhammad Hassan v. The State.
10. In
order to appreciate the contentions raised by learned counsel for the appellant
and Additional P.G, we have carefully perused the statement of accused recorded
under Section 342, Cr.P.C at Ex.21. For the ready reference, it is reproduced
as under:
IN THE COURT OF IIND
ADDITIONAL SESSIONS JUDGE
KHAIRPUR
Ex.21
Sessions Case No: 297/2011.
THE STATE
VERSUS
|
Ramzan Ansari |
Accused |
Offence U/S 302, 109 PPC.
Crime No: 20/2011. Police Station Pir Jo Goth.
Name: Ramzan son of Muhammad Hassan.
By caste: Shahani. Occupation: Labour.
Religion: Islam. Aged
about: 21/22 years.
Resident: Kaleri
Muhalla Pir Jo Goth, Taluka Kingri, District Khairpur.
STATEMENT OF
ACCUSED U / S 342 CR.P.C.
Q. No: 1. You have heard
the prosecution evidence and it has come on record that on or about 09-03-2011
at 0900 hours you being armed with pistol came on motorcycle driven by
absconding accused Qudoos in front of Courts of Pir Jo Goth and on the
instigation of absconding accused Sulleman, you made straight fires upon UTP/
deceased Nawab Rind and committed his murder, but at the same time, you were
arrested by SIP Muhammad Chuttal incharge of prisoners, what you have to say?
Ans: No Sir it is
false.
Q. No: 2. Why P.Ws have
deposed against you?
Ans: Sir, some of
PWs are police officials and some PWs are closed relatives of deceased Nawab
Rind, hence they have deposed falsely.
Q. No: 3. Do you want to
give evidence on oath?
Ans: No Sir.
Q. No: 4. Do you want to
lead evidence in your defense?
Ans: No Sir.
Q. No: 5. Have you anything
else to say?
Ans: Sir, the
complainant has falsely implicated me in this case, hence I pray for justice.
Sd/-
(Abdul Rehman Kazi)
IInd Additional Sessions Judge
Khairpur.
CERTIFICATE
Certified that the examination of
the accused was taken in my present and hearing and that the record contains a
full and true account of statement made by the accused.
Sd/-
(Abdul Rehman Kazi)
IInd Additional Sessions Judge
Khairpur.
From
the perusal of the statement of accused recorded under Section 342, Cr.P.C, it
transpires that following material questions / incriminating pieces of evidence
were not put to the accused for his explanation:
(1)
SIP
Muhammad Chuttal / complainant has deposed that accused was caught red-handed
at spot and from his possession, crime weapon viz. pistol was recovered and it
was sent to the ballistic expert and report was positive, but such question has
not been put to the accused for his explanation.
(2)
It has
come in evidence that there was tribal dispute between the two communities, but
said question was also not put to the accused for his explanation.
(3)
Report
of the ballistic expert was positive, but said question has also not been put
to the accused for his explanation.
11. It
may be mentioned here that trial Court, while giving the sub-heading in the
judgment with regard to the recovery, has heavily relied upon the piece of the
recovery as corroborative piece of evidence for convicting the accused, but
admittedly, such piece of evidence has not put to the accused for his
explanation. We have also noticed that the trial Court, in the judgment, has
highlighted some other incriminating pieces of evidence, but those pieces of
evidence were also not put to the accused. It is the requirement of law that
all the incriminating pieces of evidence, available on record, are required to
be put to the accused as provided under Section 342, Cr.P.C, in which words
used are, “For the purpose of
enabling the accused to explain any circumstances appearing in the evidence
against him”, which clearly
demonstrate that not only the circumstances appearing in examination-in-chief
are to be put to the accused, but the circumstances appearing in
cross-examination or re-examination are also required to be put to the accused,
if they are against him, because the evidence means examination-in-chief,
cross-examination and re-examination, as provided under Article 132 read with
Article 2(c) and 71 of the Qanun-e-Shahadat Order, 1984. Perusal of the
statement of accused under Section 342, Cr.P.C, reveals that portion of the
evidence was not put to the accused in his statement recorded under Section
342, Cr.P.C, enabling him to explain the circumstances particularly when
statement of accused was recorded. It is
settled law that if any piece of evidence is not put to the accused in his
statement recorded under Section 342, Cr.P.C, then same cannot be used against
him for his conviction. In this case, accused has been sentenced to death.
Learned Division Bench of this Court in the case of Habibullah alias Bhutto and 4 others v. The State (PLD
2007 Karachi 68) remanded the case to the trial Court for re-trial from
the stage of recording the statement of accused under Section 342, Cr.P.C,
because of defect in recording such statement and for re-writing the judgment
in accordance with law. Relevant portion is reproduced as under:
“We have given our due consideration to the arguments, gone through the
material placed on record and found that a defect in A recording the statement
under section 342, Cr.P.C. of the appellants is curable unless it is shown that
appellants have been prejudiced and a miscarriage of justice has occurred.
In the present case the charge was framed on 21‑3‑2004, it
reads as under:---
“That on 24-7-2003 at 1745 hours, at the common road, village Pacca
Ghanghra near house of Muhammad Hassan Ghanghro, Deh Ghangra, Taluka Kandiaro,
you duly armed with deadly weapons viz. klashnikov, shot guns, pistols, you
committed the Qatl-e-Amd of Imam Bakhsh the brother of the complainant Sultan
Ahmed Mangrio, by firing at him, thereby committed offences punishable under
sections 302, 147, 149, 34, P.P.C. and within the cognizance of this Court’.
Learned trial Judge while recording the statements of the appellants put
one question to appellants as main question and that question reads as
under:---
“Question No.1.-You have heard the prosecution's evidence, it has come in
evidence that on 24-7-2003 at 1745 hours, at the common road, village Pacca
Ghanghra near house of Muhammad Hassan Ghanghro, Deh Ghaghra, Taluka Kandiaro,
you duly armed with deadly weapons viz. klashnikov, shot guns. Pistols,
committed Qatl-e-Amd of Imam Bakhsh the brother of complainant Sultan Ahmed
Mangrio by firing at him. What you to say’?”
Comparison of the above question with the facts mentioned in the charge
reveals that it is virtually reproduction of the charge as question No. 1. From
this fact alone it appears that the learned trial Judge did not go through the
evidence while recording the statements under section 342, Cr.P.C. so as to put
all incriminating pieces of evidence to the appellants to obtain their
explanation. Under section 342, Cr.P.C. a duty is cast upon the trial Judge to
put questions to the accused persons on the incriminating facts which have come
in the evidence enabling the accused persons to explain circumstances appearing
on the evidence against them. Thus the Provisions of section 342, Cr.P.C. have
not been fully complied with.”
12. Hon’ble
Supreme Court in an unreported judgment in Criminal Appeal No.292 of 2009
dated 28.10.2010 in the case of Muhammad
Hassan v. The State has observed 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, Ct.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.”
13. It
may be mentioned here as we have already held that it is settled law by now
that a piece of evidence not put to the accused, during his examination under
Section 342, Cr.P.C, cannot be used against him for maintaining the conviction
and sentence. Reference can also be made to the case of Muhammad Nawaz and others v. The State and others (2016
SCMR 267).
14. In
the present case, learned trial Court did not perform its functions diligently
and has taken the matter lightly and in a casual manner and awarded death
sentence to the accused. As such, appellant was prejudiced in his trial and
defence. Therefore, a miscarriage of justice has occurred in the case.
Procedure adopted by the trial Court is an illegal procedure that cannot be
cured under Section 537, Cr.P.C. Thus, it has vitiated the trial. Hence,
impugned judgment dated 28.12.2015 is liable to be set aside.
15. In
the light of what has been discussed above, impugned judgment is set
aside. The case is remanded to the trial Court for re-trial
from the stage of recording the statement of accused under Section 342, Cr.P.C
and re-writing the judgment after hearing the counsel for the parties in
accordance with law.
16. In
the view of above, Appeal is allowed to the above extent
in the above terms. Confirmation Reference is answered in negative.
Trial Court is directed to complete the exercise within three (03) months.
J U D G E
J U D G E
Abdul Basit