Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. D – 18 of 2019

Conf. Case No. D – 01 of 2019

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Date of hearing : 13.02.2020.

Date of judgment : 13.02.2020.

Mr. Ghulam Shabbir Dayo, Advocate for appellant / accused Nawab alias Tharo.

Mr. Rukhsar Ahmed M. Junejo, Advocate for appellant / accused Nizamuddin alias Nizam.

Mr. Ubedullah K. Ghoto, Advocate for complainant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Nawab alias Tharo and Nizamuddin alias Nizam were tried by learned Sessions Judge, Ghotki in Sessions Case No.505/2010 for offences under Sections 302, 148, 149, PPC. After regular trial, vide judgment dated 15.02.2019, both appellants were found guilty to the charge and were convicted under Section 302 (b) read with Section 149, PPC and sentenced to death as Ta’zir. For offence under Section 302 (b), PPC, both accused were directed to pay the compensation of Rs.2,00,000/- (two lac) each, to be paid to the legal heirs of both deceased in terms of Section 544-A, Cr.P.C. In case of the default in the payment of compensation, they were ordered to suffer S.I for 06 months more. They were also convicted under Section 148 read with Section 149, PPC and sentenced to 02 years R.I and to pay the fine of Rs.10,000/- (ten thousand) each. In case of the default in the payment of the fine, they have been ordered to suffer S.I for one month more. All the sentences were directed to run concurrently. Appellants, however, were extended benefit of Section 382-B, Cr.P.C. Trial Court made Reference to this Court for confirmation of death sentence as provided under Section 374, Cr.P.C.

2. Both appellants have filed this Jail Appeal through Superintendent, Central Prison, Sukkur. Appeal was admitted for regular hearing.

3. We have heard the learned counsel for the parties and perused the record of this case carefully.

4. Learned advocates for the appellants have submitted that procedure adopted by the trial Court in conducting the trial, by adopting the same evidence after arrest of another accused was against the provisions of the law. As such, appellants have been prejudiced in defence, therefore, it is prayed that case may be remanded back to the trial Court for re-trial.

5. Learned Additional P.G assisted by advocate for the complainant, after going through the depositions of the witnesses, has conceded to the above legal position and has further added that trial Court has committed illegality in placing the copies of the depositions of the witnesses except the change of date and that the said illegality is not curable under Section 537, Cr.P.C.

6. We have given our due consideration to the arguments and perused the evidence of the witnesses recorded two times in the same case. Charge was framed against accused Nawab alias Tharo at Ex.08. Prosecution examined Dr. Arbab Ali (PW-1) at Ex.10. Thereafter, absconding accused Ali Gul was arrested. Trial Court framed the amended charge at Ex.15 and prosecution examined Dilber Ali (PW-1) at Ex.19, Muhammad Moosa (PW-2) at Ex.20, Menghlo (PW-3) at Ex.21, Nabi Bux (PW-4) at Ex.22, Ali Hassan (PW-5) at Ex.23, Arbab Ali (PW-6) at Ex.24, SIP Ghulam Rasool (PW-7) at Ex.25, PC Imdad Ali (PW-8) at Ex.26 and Tapedar Peer Bux (PW-9) at Ex.27. Thereafter, prosecution side was closed at Ex.28. Statements of the accused were recorded under Section 342, Cr.P.C at Ex.29 and 30. Thereafter, third absconding accused namely Nizamuddin alias Nizam, was arrested and for the second time, charge was amended at Ex.32. Thereafter, prosecution examined SIP Ali Hassan (PW-1) at Ex.36, Dilbar Ali (PW-2) at Ex.37, Muhammad Moosa (PW-3) at Ex.38, Menghlo (PW-4) at Ex.39, Nabi Bux (PW-5) at Ex.40, Peer Bux (PW-6) at Ex.41, Imdad Ali (PW-7) at Ex.42, Ghulam Rasool (PW-8) at Ex.43 and Zafar Ali (PW-9) at Ex.44. In the meanwhile, accused Ali Gul absconded away. Trial Court then, recorded evidence of Arbab Ali (PW-10) at Ex.48. Thereafter, prosecution closed its side at Ex.49. Statements of accused Nawab alias Tharo and Nizamuddin were recorded under Section 342, Cr.P.C at Ex.50 and 51. Trial Court after hearing the learned counsel for the parties convicted and sentenced the above named appellants as stated above.

7. It appears that amended charge was framed against accused Nawab alias Tharo and Ali Gul at Ex.15 and evidence of PWs Dilber Ali, Muhammad Moosa, Menghlo, Nabi Bux, Ali Hassan, Arbab Ali, SIP Ghulam Rasool, PC Imdad Ali and Tapedar Peer Bux was recorded. After arrest of third accused namely Nizamuddin alias Nizam, second time charge was amended at Ex.32 and prosecution invited and examined PWs SIP Ali Hassan, Dilbar Ali, Muhammad Moosa, Menghlo, Nabi Bux, Peer Bux, Imdad Ali, Ghulam Rasool, Zafar Ali and Arbab Ali, but perusal of the evidence shows that except change in date, examination-in-chief of witnesses is same. It is the matter of record that appellant Nizamuddin alias Nizam was not present before trial Court when evidence of PWs was first time recorded, but unfortunately, said evidence was copied / pasted and has been relied by the trial Court. This is clear case of copy paste, which caused prejudice to accused. The mode adopted by the trial Court, in recording the evidence was illegal, which has vitiated the trial.

8. In case of Muhammad Younis v. Crown (PLD 1953 Lahore 321), it is reported that if there are common judgments and evidence is copied, the trial was said to be illegal, viz. in violation of mandatory provisions of Section 353 Cr.P.C and Sections 137 and 138 of the Evidence Act. Similarly, in Nur Elahi v. State & others (PLD 1966 SC 708), the Hon’ble Supreme Court disapproved the procedure whereby the evidence of common witnesses was recorded once only and their statements were read out in the other cases. Similarly, in Syed Abdul Waheed v. State (1968 P Cr. L J 776), where the evidence of Handwriting Expert, who was common in two cases, and whose original deposition was placed on the record of the other case through a carbon copy; the procedure adopted had invalidated the trial, and re-trial was ordered. In case of The State v.Qalandar Khan (PLD 1971 Peshawar 119), the statement of common witnesses were recorded only in one case and the carbon copies thereof were placed on the record of the other cases. It was held that the procedure adopted was illegal. In this case evidence of witnesses was recorded in absence of accused Nizamuddin alias Nizam.

9. In the view of above legal and factual position, Jail Appeal is partly allowed. Conviction and sentence recorded by the trial Court, without touching the merits of the case, are set aside and case is remanded to the trial Court for re-trial from the stage of recording of evidence.

10. Confirmation Reference made by the trial Court is answered in NEGATIVE. However, we direct that trial Court, on receipt of this order, shall complete the trial within a period of three (03) months, in accordance with law.

11. In the view of above, Jail Appeal as well as Confirmation Reference are disposed of in the above terms.

J U D G E

Abdul Basit