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 Ta’zir 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

Father’s 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 don’t 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 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 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.”

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 Hon’ble 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