Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. D – 225 of 2016

 

 

Before:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

 

Date of hearing        :           03.03.2020.

 

Date of judgment     :           03.03.2020.

 

 

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

Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J. – Riazuddin son of Aziz-ul-Rehman Masood Pathan, appellant was tried by learned Judge, Anti-Terrorism Court, Sukkur in Special Case No.74/2012 for offences under Sections 3/4 of Explosive Substance Act, 1908, 13(d) of Arms Ordinance, 1965 and 7 of Anti-Terrorism Act 1997. After regular trial, vide judgment dated 22.11.2016, appellant was convicted and sentenced as under:

i)                    For committing offence U/S 4 Explosive Substance Act, present accused is convicted and sentenced to suffer imprisonment for life which forfeiture of his whole property as required by Section 5(a) of Explosive Substance Act, 1908.

ii)                  For committing offence U/S 13(d) A.O, present accused is convicted and sentenced to suffer R.I for seven years and to pay fine of Rs.10,000/- and in case of default in payment of fine, he shall suffer S.I for three months more.

iii)                For committing offence U/S 7(ff) ATA, 1997, present accused is convicted and sentenced to suffer imprisonment of life.

            All the sentences awarded to the appellant were directed to run concurrently. Appellant was extended benefit of Section 382-B, Cr.P.C. Case against absconding accused Riaz Gul and Mir Alam was kept on dormant file.

2.         Brief facts leading to the filing of the Appeal, as reflected in the impugned judgment, are as under:

Briefly the facts of the prosecution case, are that on 07.12.2012, complainant Excise Inspector Zulfiqar Ali lodged the FIR of crime No.234/2012 at police station Ubauro, wherein he stated that he along with E.T Inspector Muhammad Younis and his staff left Excise Police Station Ghotki under entry No.01 at about 4.30 pm dated 06.12.2012 in government mobile along with investigation bag and proceeded towards the excise check post at Sindh-Punjab border near Kamoon Shaheed for checking of narcotics in the vehicles and after reaching there, they were starting the checking of vehicles. At about 11.00 am time during checking, complainant party saw that one truck was coming speedily from Punjab side, hence complainant gave signal it and got stopped it. Then complainant saw that two persons including driver were present in the truck having No.TKD-584. The complainant inquired about them as well as truck. Whereupon truck driver disclosed his name to be Ghulam Hyder r/o Amanullah district Tank and other person shown his identity as cleaner of the truck and disclosed his name as Riazuddin r/o district south Waziristan and further disclosed that truck is empty. From the personal search of driver, four notes of Rs.1000/- and one note of Rs.500/- total Rs.4500, old identity card and one mobile phone of Nokia were secured and from the personal search of cleaner Riazudin five notes of Rs.500/- total Rs.2500/- and one original identity card were secured. Thereafter complainant party searched into the truck which was empty but complainant party saw a secret box in the upper side of cabin, wherein they found Kalashnikovs, rocket launcher, suicide jackets etc which were wrapped in polythene bags. The complainant party conveyed such information to their high-ups, meanwhile they took into custody of both accused persons so also confiscated the truck along with recovered explosion. Thereafter DSP along with bomb disposal squad also rushed there and after diffusing said ammunition, got down from the truck and sealed the same explosions and narcotics as mentioned in the FIR as well as in the mashirnama and from further search of truck one registration book register in the name of Riaz Gul son of Warsha Gul also secured. Thereafter complainant along with accused persons and recovered explosion & truck came at police station Ubauro and lodge the FIR to the above effect on behalf of state.

            FIR was recorded vide Crime No.234/2012 at P.S Ubauro, District Ghotki for offences under Sections 3/4 of Explosive Substance Act, 1908, 13(d) of Arms Ordinance, 1965 and 7 of Anti-Terrorism Act, 1997.

3.         After usual investigation, challan was submitted before the trial Court under the above referred sections.

4.         Trial Court framed the charge against accused Ghulam Hyder and Riazuddin at Ex.09 under Sections 3/4 of Explosive Substance Act, 1908 read with Section 7(ff) of Anti-Terrorism Act, 1997 and 13(d) of Arms Ordinance, 1965. Accused met with the charge with denial. Amended charge was framed by the trial Court at Ex.08-C, to which accused did not plead guilty and claimed to be tried.

5.         At the trial, prosecution examined four (04) prosecution witnesses, who produced the relevant documents. Learned ADPP for the State along with his statement dated 17.10.2016 filed report of the ballistic expert dated 30.01.2015. Thereafter, prosecution side was closed.

6.         It may be mentioned that accused Ghulam Hyder expired during the trial and proceedings were abated against him. Statement of appellant Riazuddin 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 counsel for the parties and assessment of the evidence, vide judgment dated 22.11.2016, convicted and sentenced appellant Riazuddin as stated above, hence, this Appeal.

8.         Facts of this case as well as evidence find an elaborate mention in the judgment of the trial Court, hence, there is no need to repeat the same.

9.         At the very outset, Mr. Rukhsar Ahmed Junejo, learned advocate for the appellant submitted that statement of the accused has been recorded by the trial Court under Section 342, Cr.P.C, in a stereo type manner and all the incriminating pieces of the evidence were not put to the accused for his explanation / reply, as required by the law. Mr. Junejo, particularly referred to the report of the ballistic expert, and argued that no question with regard to the positive report of the ballistic expert has been put to the accused, on the other hand, trial Court has relied upon that piece of evidence in the judgment for conviction of appellant. Reference has been made by the counsel for the appellant to para No.22 of the impugned judgment. Mr. Junejo lastly submitted that case may be remanded to the trial Court for providing a fair opportunity to the appellant to reply all the incriminating pieces of evidence brought on record against him. In support of his contentions, he has relied upon an unreported judgment of Hon’ble Supreme Court passed in Criminal Appeal No.292 of 2009 in the case of Muhammad Hassan v. The State dated 28.10.2010.

10.       Mr. Shafi Muhammad Mahar, learned DPG conceded to the contentions raised by Mr. Junejo and further submitted that report of the ballistic expert was available with the prosecution, but it was not produced through the Investigation Officer. It is further argued that trial Court failed to put the question with regard to the positive report of the ballistic expert from the accused in his statement recorded under Section 342, Cr.P.C, which has caused prejudice to the case of the accused. In all fairness, learned DPG submitted that case may be remanded back to the trial Court for recording the statement of accused afresh in accordance with law.

11.       In order to appreciate the contentions of the learned advocate for the appellant and for the sake of reference, statement of accused Riazuddin recorded under Section 342, Cr.P.C at Ex.21, is reproduced as under:

 

Exh.21

 

IN THE COURT OF JUDGE, ANTI-TERRORISM, SUKKUR.

Spl. Case No.74/2012.

STATEMENT OF ACCUSED U / S 342 CR.P.C.

 

Name:                          Riazuddin

Father’s Name:                        Azizul Rehman

Caste:                          Masood Pathan

Age:                             23 Years

Occupation:                 Labourer

R/O                              Village Zagbeer taluka Saradooga

District:                       Tank

 

Q.No.1.            You have heard the evidence of prosecution witnesses at the trial to the effect that on 06.12.2012, at about 1100 hours, you along with deceased accused Ghulam Hyder were coming from Punjab side on Truck No.TKD-584 which was stopped by Excise Police at National Highway road Excise check post near Sindh-Punjab border and on personal search excise police recovered five notes of Rs.500/- total Rs.2500/- and CNIC from your wearing shirt and during checking of the said truck you were found in possession of 40 kilogram of Charas so also recovered explosive substance material viz: 08 suicide jackets, 76 detonators, 18 Junction Box, 64 hand grenades, 132 empty fuse caps, 2 remote control, one small dry battery, 107 small lead lamps, 07 BML cartridges, BML cartridges guns, 71 BML cartridges, 360 meter wire of detonators, One fire gun rocket, 07 empty jackets, 03 Kalashnikovs, 50 magazines of Kalashnikovs, 500 live bullets of Kalashnikovs, one pistol of 9mm, 02 magazines of 9mm, 32 live bullets of 7-mm, one rocket launcher, 38 live shells of rocket launcher, 39 fuse of rocket launcher along with one Registration book of the said truck which was in the name of Riaz Gul. What have you to say?

Ans.     No Sir it is false.

 

Q.No.2.            Why the PWs have deposed against you?

Ans.     All P.Ws are Police officials, interested and hostile, hence they deposed falsely.

 

Q.No.3.            Do you want to lead evidence in defence?

Ans.     No Sir.

 

Q.No.4.            Do you want to give evidence on oath?

Ans.     No Sir.

 

Q.No.5.            Do you want to say anything else?

Ans.     Sir I am innocent. I sit in truck from dera Ismail Khan, and I take lift from driver, when the truck reached at Obaro, the Police stopped it, and asked the driver to take their articles to Karachi, for which driver refused, then Police falsely challaned us, the driver and cleaner of Truck succeeded to ran away. I pray for justice.

 

BEFORE ME

 

Sd/-

01/11/16

JUDGE

ANTI-TERRORISM COURT SUKKUR

 

 

CERTIFICATE

 

            The statement of accused has been taken in my presence and hearing, and record contains a full and true account of his statement made before me.

Sd/-

01/11/2016

            From the perusal of the aforesaid statement, it is clear that no question with regard to the ballistic expert’s report has been put to the accused for his explanation / reply. On the other hand, trial Court in the impugned judgment in para No.22 has relied upon that piece of evidence for the purpose of conviction to the appellant. Relevant portion of para No.22 of the impugned judgment is reproduced as under:

22.     Learned ADPP for the state has also produced the report of forensic expert along with statement at Ex.19 which shows that recovered weapons were in working condition, therefore in my view the ocular evidence of excise police official viz: complainant and mashir Excise Inspector Muhammad Younis fully supported by the circumstantial evidence of I.O and report of Bomb Disposal Squad and report of Forensic Expert.

12.       It is settled law that all the incriminating pieces of evidence brought on record by the prosecution ought to be put to the accused at the time of recording his statement under Section 342, Cr.P.C for the explanation / reply of the accused as held by Hon’ble Supreme Court in an unreported judgment dated 28.10.2010 passed in Criminal Appeal No.292 of 2009 in the case of Muhammad Hassan v. The State. Relevant portion is reproduced 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 appellants 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 appellants 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 appellants conviction and sentence recorded and upheld by the learned Courts below.

13.       We are clear in our mind that material piece of evidence regarding positive report of ballistic expert being relied upon by the prosecution against the appellant has not been put to him at the time of recording of his statement under Section 342, Cr.P.C 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 by now a settled principle of law that a failure to comply with this mandatory requirement vitiates the trial. The case in hand is a case punishable up to life imprisonment. We have been shocked that trial Court dealt with the case in the casual manner in recording the statement of the appellant / accused under Section 342, Cr.P.C by ignoring the legal position. Trial Court has committed a glaring illegality. Omission on the part of the trial Court mentioned above was not merely an irregularity curable under Section 537, Cr.P.C but the same was a downright illegality which had vitiated the appellant’s conviction and sentence recorded by the trial Court.

14.       In the view of above, Appeal is partly allowed in the above terms. Conviction and sentence recorded by the trial Court are set aside. The case is remanded back to the trial Court with direction to record the statement of the accused under Section 342, Cr.P.C afresh by putting all the incriminating pieces of evidence brought on record by the prosecution for his explanation / reply. Thereafter, trial Court shall also provide an opportunity to the accused to produce the defence, if any. After that, trial Court, after hearing the counsel for both the parties, shall decide the case within 45 days in accordance with law.

15.       Criminal Jail Appeal is disposed of in the above terms.

 

 

J U D G E

 

J U D G E

Abdul Basit