Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Appeal No. D 66 of 2019
Conf. Case No. D 03 of 2019
Cr. Appeal No. D 65 of 2019
Cr. Appeal No. D 67 of 2019
Before:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar Ali Sangi
Date of hearing : 05.03.2020.
Date of judgment : 05.03.2020.
M/s Mushtaq Ahmed and Imdad Ali Malik, Advocates for appellants /
accused.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General assisted by Syed Sardar Ali Shah Rizvi, Deputy
Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J. Abdul Razzak and Qari Inayatullah, appellants
were tried by learned Judge, Anti-Terrorism Court-I, Sukkur in Special Cases
No.130, 131 & 165 of 2017 for offences under Sections 302, 324, 34, PPC
& 7(a), Anti-Terrorism Act, 1997 and 13(d), Arms Ordinance, 1965. After
regular trial, vide judgment dated 27.04.2019, appellants were convicted under
Section 302(b), PPC read with Section 34, PPC as Tazir and sentenced to death
for causing murder of Zain Ali and Syed Azhar Ali. Both appellants were
directed to pay compensation of Rs.2,00,000/- (two lac) each, to be paid to the
legal heirs of both deceased. Both appellants were also convicted under Section
7(1)(a), Anti-Terrorism Act, 1997 for causing murder of Zain Ali and Syed Azhar
Ali, and sentenced to death and to pay fine of Rs.2,00,000/- (two lac) each.
Both appellants were further convicted under Section 324, PPC read with Section
34, PPC for attempting to cause murder of Ayaz Hussain, and sentenced to ten
(10) years R.I and to pay fine of Rs.5,000/- (five thousand) each. In case of
failure, they were ordered to suffer S.I for one (01) month. Appellants
were further convicted under Section 7(1)(c), Anti-Terrorism Act, 1997 for
causing grievous hurt to Ayaz Hussain, and sentenced to ten (10) years R.I and
to pay fine of Rs.5,000/- (five thousand) each. In case of failure, they were
ordered to suffer S.I for one (01) month. They were further convicted
under Section 13(d), Arms Ordinance, 1965, and sentenced to ten (10) years R.I
and to pay fine of Rs.5,000/- (five thousand) each. In case of failure, they
were ordered to suffer S.I for one (01) month. Both appellants were directed to
be hanged by their neck till they are dead. However, death sentence was subject
to confirmation by this Court. As both appellants were sentenced to death under
the provisions of Anti-Terrorism Act, 1997, their properties were confiscated
to the Government under Section 7(2), Anti-Terrorism Act, 1997. Benefit of
Section 382-B, Cr.P.C was extended to the accused persons. Trial Court made
Reference to this Court for confirmation of death sentence under Section 374,
Cr.P.C.
2. Both
appellants filed Criminal Appeal No. D-66/2019 against the conviction and
sentence of death awarded to them by the trial Court and separate Criminal
Appeals No. D-65/2019 and D-67/2019 were filed by appellants Qari
Inayatullah and Abdul Razzak, respectively, against their conviction and
sentence recorded under Section 13(d), Arms Ordinance, 1965. All the three
Appeals were admitted to regular hearing and notices were issued to the
Additional P.G.
3. Brief
facts leading to the filing of the Appeals, as reflected in the impugned judgment,
are as under:
Facts forming the basis of above cases as unfolded
in the FIR No.309/2011, are that on 28.11.2011, at 12.30 am (night),
complainant Ghulam Hussain reported at PS Soldier Bazaar Karachi, that on
27.11.2011, at 4.15 pm, he was busy at Hussani Sabeel, in front of Anica Arcade
Numaish Chowrangi in serving water to the participants of Majlis at Nishtar
Park and different scouts and Razakars were busy in controlling the traffic. He
stated that participants of rally of a religious party returning from Tibet
Centre, reached at Nimash Chowrangi, chanting sectarian slogans, four persons
with familiar faces on two motorcycles came at Britio Road, in front of Anica
Arcade, to whom Scouts and Razaakars tried to stop, whereupon three persons
took out pistols and one took a Kalashnikov and with intention to cause murder
of peoples started firing resultantly, three persons sustained injuries at Pak
Hydri camp and Brito Road, two succumbed to the injuries at the spot and he
came to know that they were Syed Azhar Raza S/O Syed Nazeer Hyder Zaidi and
Zain Ali S/O Qaiser Mehmood, while injured was Ayaz Hussain S/o Shanshah
Hussain. He stated that in the meanwhile, a police party headed by SIP Mehtab
Ali of PS Soldier Bazaar reached there and tried to apprehend the accused
persons but they succeed to escape from the spot. The dead bodies and injured were shifted to Civil Hospital, Karachi.
Complainant stated that he and the witnesses Arshad, Muhammad Mehdi,
Tanveer Abbas and Waseem Hyder besides other officials of police mobile present
at the spot can identify the accused persons, if they come across.
It is
further case of prosecution that on 02.12.2011, a police party headed by SIP
Sarfaraz Ali Aliyana of the PS Soldier Bazaar, was busy in the investigation of
above mentioned FIR, when at 1.15 am (night) reached at Albela Signal, Nishtar
Road, Karachi, where on spy information apprehended two persons who disclosed
their names as Abdul Razzak and Qari Inayatullah. He conducted personal search
of Abdul Razzak, recovered a pistol of 9mm loaded with three live bullets from
the fold of his shalwar and recovered a 30 bore pistol loaded with two live
bullets from the folds of shalwar of accused Qari Inayatullah. They could not
produce license for the pistols, whereupon were arrested accordingly.
Complainant sealed the weapons and prepared memo of their arrest and recovery,
brought them at the PS Soldier Bazaar and registered FIR No.310/2011 &
311/2011, against them.
FIR
of main case was recorded vide Crime No.309/2011 at P.S Soldier
Bazaar, Karachi East for offences under Sections 302, 324, 34, PPC read with Section 7, Anti-Terrorism Act,
1997, whereas, FIRs of connected cases were recorded vide Crimes No.310/2011
and 311/2011 at P.S Soldier Bazaar, Karachi East for offence under Section 13(d) of Arms Ordinance, 1965.
4. After
usual investigation, challans were submitted before the trial Court under
the above referred sections. Joint trial was held in terms of Section 21M of
the Anti‑Terrorism Act, 1997.
5. Trial
Court framed the charge against the accused at Ex.04 under Sections 302, 324,
34, PPC read with Section 7(a), Anti-Terrorism Act, 1997 and 13(d) of Arms
Ordinance, 1965. Accused did not plead guilty and claimed to be tried.
6. At
the trial, prosecution examined seventeen (17) prosecution witnesses, who
produced the relevant documents / reports. Thereafter, prosecution side was
closed.
7. Statements
of accused were recorded under Section 342, Cr.P.C at Ex.33 & 34, in which
accused claimed false implication in this case and denied the prosecution
allegations. Accused did not lead evidence in their defence and declined to
give statement on oath in disproof of prosecution allegations.
8. It
may be observed that trial Court after recording the statements of accused
under Section 342, Cr.P.C, re-opened the side of prosecution and issued summons
to PWs Syed Raza Abbas and Syed Tanveer Abbas being material witnesses of
prosecution for just decision of the case vide detailed order dated 08.12.2018.
Process was issued against PWs, it was returned unexecuted. Trial Court
recorded statement of Process Server SIP Sarfaraz Ali to that extent.
9. Trial
Court without closing side by Prosecutor, heard learned counsel for the parties
and after assessment of the evidence, vide
judgment dated 27.04.2019, convicted and sentenced the appellants as
stated above. Hence, these Appeals. By this single judgment, we intend to
decide these Appeals as the same arise out of same judgment and require same
appreciation of evidence.
10. 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.
11. At
the very outset, learned advocates for the appellants as well as learned
Additional P.G jointly pointed out following illegalities committed by the
trial Court and prayed for remand of case to trial Court.
i)
There was a piece of evidence in the shape of CCTV footage; CD was played
in the Court as reflected in evidence of PW SIP Sarfraz Aliyana at Ex.14, but trial
Court failed to put up such question to the accused in their statements
recorded under Section 342, Cr.P.C.
ii)
Reports of the ballistic expert and chemical examiner were produced in
the evidence at Ex.14-P and 14-Q, but questions with regard to those reports
were not specifically put up to the accused in their statements recorded under
Section 342, Cr.P.C.
iii)
There were two murders, but sentence of death was not awarded to
appellants by the trial Court on two counts, as such judgment is erroneous.
iv)
Identification Parade of both appellants was held before the Judicial
Magistrate as deposed by Judicial Magistrate at Ex.07, but no such question was
put up to accused Abdul Razaak.
v)
Appellants were convicted and sentenced under Section 302 for commission
of the two murders, but trial Court failed to determine the compensation to the
legal heirs of deceased in terms of Section 544-A, Cr.P.C.
vi)
Appellants were convicted under the above referred sections, but trial
Court failed to mention whether sentences will run concurrently or
consequently.
12. As regards to the first submission that all the material pieces of evidence being relied upon by the prosecution
against the accused were not put to them at the time of recording their
statement under Section 342, Cr.P.C, for the sake of convenience, statement of
accused Abdul Razzak recorded under Section 342, Cr.P.C at Ex.33, is reproduced
as under:
Ex. No: 33
IN THE ANTI-TERRORISM
COURT NO: VII, INSIDE CENTRAL PRISON AT, KARACHI.
(Special case No: 483/2015) (B-05/2012)
The State
V / s
Abdul Razzaque & Others
Accused
FIR No: 309 of 2011
U/S: 302/324/434/PPC
r/w 7 ATA.
P.S. Soldier Bazar.
(Special case No: 484/2015) (B-06/2012)
The State
V / s
Abdul Razzaque & Others
Accused
FIR No: 310 of 2011
U/S: 13 D.A.O
P.S. Soldier Bazar
(Special case No: 485/2015) (B-07/2012)
The State
V / s
Abdul Razzaque & Others
Accused
FIR No: 311 of 2011
U/S: 13 D.A.O
P.S. Soldier Bazar.
STATEMENT OF
ACCUSED U/S: 342 CR.P.C
Name : Abdul
Razzaque
Fathers Name : Ahsan
Gul
Religion : Islam
Caste : Mandakhel
(Pathan)
Age about : 32
years
Occupation : Driver
Residence : North
Nazimabad, Karachi.
Q. No: 01 Have you heard the
prosecution evidence?
Ans: Yes Sir.
Q. No: 2 It has come in evidence
that on 27.11.2011 at about 1615 hours you alongwith co-accused Qari
Inayatullah and two un-identified malefactors, duly armed with Kalashnikov and
pistols while raising
religious slogans came from Tibet Centre side on two Bikes at M.A Jinnah Road, Numaish
Chorangi, Corner infront of Aneeka Arcade, the Scouts of Majlis (Shia Sect) endeavored to stop you, on which you made direct fire at the scouts camp and caused fire shot injuries to three
scouts of Pak Hyderi. Due to the said murderous assault, Syed Azhar Raza Zaidi and Zain Ali Mehmood succumbed to injuries, whereas, Ayaz Hussain received grievous hurts. Thus, by doing the said terrorist act on
sectarian score you and absconder perpetrators created
sense of insecurity, fear
and terror in the public and society. What you have to say?
Ans: It is false.
Q. No: 03 It has come in
evidence of P.W SIP Mehtab Ali that on 27.11.2011 that you alongwith co-accused
Abdul Razzaque and two other culprits on two Bikes made firing at M.A Jinnah
Road, Numaish Chorangi, in which three persons sustained bullet shot injuries.
What you have to say?
Ans: It is false.
Q. No: 04. It has come on
record through the evidence of MLO Mubarak Ali that on 27.11.2011 he received
two dead bodies namely Zain Ali Mehmood and Syed Azhar Raza Zaidi, brought by
SIP Muhammad Irshad of P.S Soldier Bazaar and on the postmortem, he opined that
deceased lost their breath in result of firearm injuries, caused through
firearm weapons. What you have to say?
Ans: I dont know
for the dead bodies and opinion of MLO.
Q. No: 05 It has come in the
evidence that on 02.12.2011 at about 0115 hours on receipt of spy information
SIP Sarfraz Allyana of PS Soldier Bazar nabbed you at Nashtar road, Garden
West, Karachi and recovered one 9mm pistol loaded with three live bullets, for
which you failed to provide valid license. What you have to say?
Ans: It is false,
weapon is foisted upon me.
Q. No: 06 It has come on
record that the incriminating 9 mm pistol recovered from you was dispatched to
the FSL who opined it to be in working order with empties having been matched
to the said weapon. What you have to say?
Ans: Police obtained
fictitious report with the collusion of FSL authorities.
Q. No: 07 It has come in
evidence of P.W Syed Tanveer Abbas in his 164 Cr.P.C statement recorded by
learned J.M, that you were driving the Bike while co-accused Abdul Razzaque was
sitting on the rear seat. What you have to say?
Ans: It is false. In
fact police setup the P.W and he recorded his 164 Cr.P.C statement with
malafide intention.
Q. No: 08 It has come in
evidence of P.W Syed Waseem Hyder that you riding on Bike being members of
religious rally made firing, as a result of which three members of Scouts of
Shia Sect, who performing their duty in the procession of 1st
Muhram-ul-Haram sustained fire shots. Resultantly two amongst them succumbed to
the injuries and the third went severally injured. What you have to say?
Ans: It is false.
This P.W has deposed at the instigation of police.
Q. No: 09 It has come in
evidence of P.W H.C Mukhtar Ahmed that on 09.12.2011 you were interrogated by
SIP Sarfraz Allyana and during interrogation you admitted your complicity in
the instant crime and SIP visited the place of occurrence on your pointation.
What you have to say?
Ans: It is false.
Q. No: 11 Why the P.Ws have
deposed against you?
Ans: All belong to Shia
Sect and rest are police officials, deposed false the instigation of police,
besides deposed to show the efficiency.
Q. No: 12 Do you want to make
you statement on oath?
Ans: No Sir.
Q. No: 13 Do you want to
lead evidence in defense?
Ans: No Sir.
Q. No: 14 Do you want to say
anything else?
Ans: I am innocent
having been booked on sectarian issue. I have no concerned to the alleged
occurrence. I have been booked by the police being active worker of
Ahl-e-Sunat. All private P.Ws belong to Shia Sect and interested to get me
booked and to see me behind the bars. I was arrested on 27.11.2011 by the
police and falsely booked me in FIR No: 310/2011 under section 13-D Arms
Ordinance, 1965 of P.S Soldier Bazaar. Afterwards police booked me in this case
due to pressure of Shia community. I place my reliance to the CP No:
D-3884/2012, wherein my name also transpires at serial No:06 in the list
attached showing the names of persons retained by the different police stations
on 27.11.2011 at the pressure of Shia community. The CTC of the said CP is to
be exhibited by Qari Inayatullah in his defence. I pray for mercy.
Dated: 15.09.2017
Sd/-
(Abdul Qudoos Memon)
Judge
Anti-Terrorism Court No: VII
Karachi.
Signature of Accused Sd/-
CERTIFICATE
Certified
that the statement of accused is recorded in my presence, hearing record
containing full & true account of his statement.
Sd/-
(Abdul Qudoos Memon)
Judge
Anti-Terrorism Court No: VII
Karachi.
13. 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 Honble 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
appellants possession during the investigation but we have found that except
for the alleged recovery of
Kalashnikov from the appellants 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.
14. We have perused the judgment of the trial
Court as well as evidence available on record and observed as under:
i)
It is matter of the record that Investigation
Officer had collected CCTV footage during investigation. CD was played before
the trial Court as is evident from the evidence of the Investigation Officer at
Ex.14, but trial Court failed to put this incriminating piece of evidence to
the accused in their statements recorded under Section 342, Cr.P.C, so as to
provide them an opportunity to explain their position.
ii)
Investigation Officer has produced positive
report of ballistic expert at Ex.14-P and positive report of chemical examiner
in his evidence at Ex.14-Q, but trial Court failed to put this material piece
of evidence to the accused clearly in their statements recorded under Section
342, Cr.P.C, so as to provide them an opportunity to explain their position.
Trial Court was not supposed to put up the questions in a stereo type.
iii)
In this case, two persons namely Zain Ali and Syed Azhar Ali were murdered, but the trial Court, in the
concluding paragraph of the judgment dated 27.04.2019, has sentenced the
accused to death without specifying the sentence of death on two counts.
Moreover, appellants were convicted under Section 302(b), PPC as well as
Section 7(1)(a), Anti-Terrorism Act, 1997, but distinct sentences and counts
have not been mentioned, hence, the judgment of the trial Court is erroneous in
the law.
iv)
During investigation, accused were arrested
and Identification Parade of accused was held. Judicial Magistrate has been
examined before the trial Court at Ex.07. He produced report of Identification
Parade, but trial Court failed to put up the question regarding Identification
Parade at the time of recording statement of accused Abdul Razzak, so as to
provide him an opportunity to explain his position in that regard, and denial
of such opportunity to the accused persons defeats the ends of justice.
v)
Appellants were convicted and sentenced under Section 302 for commission
of the two murders, but trial Court failed to determine the compensation to the
legal heirs of deceased in terms of Section 544-A, Cr.P.C.
vi)
Appellants were convicted under the above referred sections, but trial
Court failed to mention whether sentences will run concurrently or
consequently.
15. It is also equally settled that a failure
to comply with this mandatory requirement vitiates the trial. The case in hand
is a case of murder entailing a sentence of death and we are shocked by the
cursory and casual manner, in which learned Judge, Anti-Terrorism Court had
handled the matter of recording of the appellants statements under Section
342, Cr.P.C, which statements are completely shorn of necessary details which
are required to put to the appellants. While respectfully relying upon above
cited judgment of Honble Supreme Court, we have no hesitation to hold that omissions
on the part of the trial Court mentioned above were not merely irregularities
curable under Section 537, Cr.P.C, but the same were downright illegalities which
have vitiated the appellants conviction and sentence recorded by the trial
Court. Trial Court has rendered judgment in violation of statutory provisions
of Section 367, Cr.P.C, as such it is not sustainable. Reliance is placed upon
the case reported as Ali Muhammad Khan
v. Nazir-ul-Islam and another (2018 P Cr. L J 1372).
16. For
the above stated reasons, Appeals are partly allowed. Conviction
and sentence recorded by the trial Court, vide judgment dated 27.04.2019,
are set aside. The case is remanded back to the trial
Court. Learned Judge, Anti-Terrorism Court-I, Sukkur is directed to record the statements
of the accused under Section 342, Cr.P.C afresh by putting each and every
incriminating piece of evidence to the accused for the their explanations /
replies. Thereafter, after hearing the learned counsel for the parties and
keeping view above observations of this Court, trial Court shall pass the
judgment within two (02) months strictly in accordance with law. Learned
advocates for appellants submitted that accused Abdul Razzak was on bail during
the trial. He would be at liberty to file bail application before the trial
Court, which shall be decided, in accordance with law.
17. Confirmation
Reference No. D-03/2019 made by the trial Court in the view of above
development is answered in NEGATIVE.
18. In
the view of above, aforesaid Appeals as well as Confirmation Reference are disposed
of in the above terms.
J U D G E
J U D G E
Abdul Basit