Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Appeal No. D
– 94 of 2013
Confirmation case No. D-06 of
2013
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Abdul Mubeen Lakho.
Date
of hearing: 03.10.2019
M/S A.R Faruq
Pirzado, Qurban Ali Malano and Shamsuddin Kobher counsel for appellants.
Mr. Ubedullah K.Ghoto
Advocate for complainant.
Mr. Zulifqar Ali
Jatoi Additional P.G.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Appellants
Dadlo, Rab Nawaz, Zameer Ahmed and Nawab were tried by learned 3rd
Additional Sessions Judge, Mirpur Mathelo in Sessions case No. 340 of 2008 for
offences under Sections 302, 337-H(2), 147, 148, 149 PPC. After regular trial vide
Judgment dated 24.10.2013, appellants were convicted and sentenced as under :-
a) Accused Dadlo, Rabnawaz, Zameer Ahmed
and Nawab are convicted for offences punishable U/S:147,148 read with
section 149 P.P.C for two years and to pay fine of Rs: 2000/- each
equally payable to the legal heirs of both deceased and in case of failure
thereto they shall suffer further S.I for one month.
b) Accused namely Dadlo, Rabnawaz, Zameer
and Nawab, are also convicted for offences punishable under sections 302 (b)
read with section 149 P.P.C, for committing double murder of Muhammad Hayat and
Moriro, by caste Kobhar, therefore, they are sentenced to death as Tazir and
they shall be hanged by neck till they are dead and to pay Rs:50,000/- (Fifty
thousand) each to be paid equally to the legal heirs of both the deceased being
compensation as required
under section 544-A Cr.P.C or to undergo simple imprisonment for six months
each in default thereof.
c) Accused Dadlo is also convicted and
sentenced for offence punishable under section 337-H(2) read with section 149
P.P.C, for three months and to pay fine amount of Rs:2000/- to the
complainant of this case, in case of his failure thereto he shall suffer
further S.I for one month more. The accused are extended benefit of section
382-B Cr.P.C. for the period which they have remained as under trial prisoners in this case.
Trial
Court made reference to this Court for confirmation of death sentence awarded
to the appellants Dadlo, Rab Nawaz, zameer Ahmed and Nawab in terms of Section
374 Cr.P.C while case against absconding accused Sahibdino, Mazari and Liaquat
was kept on dormant file. Appellants preferred this criminal appeal, it was
admitted to regular hearing.
2. Mr. Abdul Rehman Faruq Pirzado
Advocate for appellant Nawab before arguing the appeal on merits pointed out
that evidence of PW-09 Abdul Malik Investigation Officer has been recorded by
the trial Court in absence of defense counsel; it is submitted that procedure adopted by the
trial Court was not warranted under the law. It is further argued that it is a
case of capital punishment and the accused were entitled to engage the advocate
of their choice, in case they had no confidence in advocate provided to them by
the Court on state expenses. Learned defense counsel submitted that statements
of the appellants / accused were recorded U/S 342 Cr.P.C by trial Court on 22.10.2013
but accused refused to put their signatures on their statements by expressing reservations
that advocate provided to them on state expenses was not acceptable to them. Mr. Pirzada submitted that case may be
remanded back to trial Court as illegalities committed by the trial Court are
not curable under the law. In support of his submissions he has relied upon
case of Ghulam Rasool Shah and another v. The State (2011 SCMR 735).
3. Mr.
Zulifqar Ali Jatoi Additional P.G assisted by Mr. Ubedullah K. Ghoto counsel
for the complainant conceded to the legal position that evidence of PW-09 Abdul
Malik was recorded by the trial Court in absence of defense counsel. However,
argued that opportunity was provided to the accused persons to cross examine
PW-09. Additional P.G further submitted that accused had refused to put their
signatures on their statements recorded U/S 342 Cr.P.C. He prayed for remand of
the case.
4. After
hearing learned counsel for the parties, we have perused the R & Ps. It is
a matter of record that examination- in- chief of PW-09 Abdul Malik I.O was
recorded on 25.09.2013 in absence of defense counsel. No doubt trial Court
provided an opportunity to the accused persons to cross-examine above‑named
witness. The legal requirement is that in the case of capital punishment
examination- in- chief and cross-examination should be recorded in presence of
defense counsel. It appears that accused were dis-satisfied from the counsel
provided to them on state expenses, even than it was the duty of the trial
Court to have provided another experienced advocate of the choice of accused
on state expenses or trial Court should have provided sufficient time to the
accused to engage another defense counsel but it was not done by the trial
Court. We have also noticed that statements of the accused were recorded U/S
342 Cr.P.C and accused refused to put their signatures, on the ground that they
were not satisfied from the defense counsel provided to them on state expenses.
Another illegality was committed by the trial Court, by not providing them the
services of the advocate of choice.
5. Undeniably,
to ascertain the truth or falsity to a charge the statements of the witnesses
are to be judged by conducting the cross examination. It is always said to be
the most powerful engine to test the credibility. Statements recorded without going
through mill of cross-examination is bound to result in injustice to an
accused. Safer principle is to allow cross-examination by granting reasonable
opportunity. Similarly, provision of a defense counsel at State expenses should
be out of lawyers having acumen, interest and some experience of trial of
murder case. No doubt accused have no choice claiming engagement of a
particular counsel at State expenses yet accused should be given the choice to
select one of the counsel out of the list of the counsel maintained by the
Court provided by the Bar. Statements of accused U/S 342 Cr.P.C are most
important in criminal case. Accused are entitled to answer all the
incriminating pieces of evidence. Trial Court has committed illegalities during
trial, which are not curable in law.
6. For
what has been discussed above and relying upon the case of Ghulam Rasool Shah
and another v. The State (2011 SCMR 735) we allow the appeal partly, set aside
the Judgment of the trial Court dated 24.10.2013 and remand back the case to
the trial Court for recording evidence (examination-in-chief and
cross-examination) of PW-09 Abdul Malik, in presence of defense counsel and recording
of statements of accused U/S 342 Cr.P.C afresh in accordance with law. Since this is an old case, trial Court is
directed to decide it expeditiously under intimation to this Court. So far the
confirmation reference is concerned, in the view of above development reference is answered in negative.
The criminal
Revision Application No. D-52 of 2019, Criminal Jail Appeal No. S-72 of 2019
and criminal appeals Nos.88, 89 and 90 of 2013 which are fixed today along with
the instant criminal appeal, shall be fixed as per roster by the office.
J U D G E
J U D G E
Irfan/PA