HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Jail Appeal No. 40 of 2022
Special Criminal Anti-Terrorism Appeal No. 48 of 2022
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Shamsuddin Abbasi
Appellant : Muhammad Noman @ Mota through Mr. Ali Gohar Masroof advocate
Nemo for appellant Pervaiz
Respondent : The State through Mr. Siraj Ali Khan Additional Prosecutor General Sindh
Date of Hearing : 20.01.2023
Date of judgment : 20.01.2023
NAIMATULLAH PHULPOTO, J.- Muhammad Noman @ Mota and Pewrvaiz appellants were tried by learned Judge, Anti-Terrorism Court No. XX, Karachi in Special Case No. 413/2021 (FIR No. 468/2021 u/s 4/5 Explosive Substance Act r/w Sec. 7 of ATA 1997 registered at PS Ferozabad) and Special case No. 413-A/2021 (FIR No. 469/2021 u/s 4/5 Explosive Substance Act r/w Sec. 7 of ATA 1997 registered at PS Ferozabad). After full-dressed trial, both the appellants were convicted under section 7(1)(ff) of ATA 1997 and sentenced to undergo R.I for 14 years. Appellants were extended benefit of section 382(b) Cr.P.C.
2. Both the appellants filed Spl. Crl. A.T. Jail Appeal No. 40 of 2022 being dissatisfied with the conviction and sentence recorded by the trial Court. Appellant Muhammad Noman @ Mota also filed separate Spl. Crl. Anti-Terrorism Appeal No. 48 of 2022 against the same judgment.
3. Brief facts of the prosecution case as mentioned by the trial court in the impugned judgment dated 15.01.2022 are as under:
“Brief facts of the prosecution are that on 25-05-2021, complainant ASI Hussain Bux was busy in patrol duty around the area along with his subordinates staff and during patrolling around the area at about 1345 hours, when they reached inside street near Rehmania Mosque Block-11, PECHS, Karachi, where they saw two persons to be available in suspicious condition. They apprehended accused persons on the spot. The apprehended accused persons disclosed their names as Muhammad Noman and Pervaiz. Thereafter, complainant ASI Hussain Bux due to non-availability of private/independent witnesses and in the presence of official witnesses conducted personal search of accused Mohammad Noman and recovered one hand grenade bearing No. 107-19-7/TO which was wrapped in a shopper from the pocket of his pant and mobile phone Vivo from his possession whereas, the personal search of accused Pervaiz was conducted which led to the recovery of one hand grenade having military Green colour which was wrapped in a shopper and two mobile phones viz. Samsung Touch Phone of golden colour and Samsung in broken condition from his possession. Therefore, the police arrested accused persons in the above mentioned crime and brought them at the police station where the present FIRs were registered against them.”
4. After usual investigation, challan was submitted against the appellants under sections u/s 4/5 Explosive Substance Act r/w Sec. 7 of ATA 1997. Trial Court framed Charge against appellants at Ex.4 under the above referred section. Accused pleaded not guilty and claimed trial.
5. At trial, prosecution examined four witnesses. Thereafter, learned DDPP closed the prosecution side.
6. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.11 and 12. Appellants claimed their false implication in the present case and denied the prosecution allegations. Appellants neither examined themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defense.
7. Trial Court after hearing the learned counsel for the parties and assessment of evidence vide judgment dated 15.01.2022, convicted and sentenced the appellants as detailed above.
8. At the very outset, learned advocate for the appellant pointed out that in each and every case evidence was not recorded separately by the trial court and illegality was committed and by such omission appellants have been deprived of their right of a fair trial, which is guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, by pointing so, he prayed for remand of the cases to the trial court for their fresh proceeding in accordance with law. In support of his submissions, he has relied upon the orders dated 01.12.2022 passed in case of Shahzad @ Kalay Khan in (Cr. Jail Petitions Nos.674 & 675/2019 and in Jail Petitions Nos. 676 & 677/2019) and dated 05.12.2022 passed in case of Muhammad Hashim vs. The State through P.G Sindh (Criminal Petition No. 1362 of 2019) by Hon’ble Supreme Court of Pakistan.
9. Learned Additional Prosecutor General Sindh also argued that trial court should have recorded evidence in both the cases separately and illegality has been committed by trial court, the same is not curable under the law.
10. We have carefully heard the arguments and perused the evidence recorded by the trial Court in the aforesaid crimes. In order to properly appreciate the submissions made by learned counsel for the parties, order dated 01.12.2022 passed in case of Shahzad @ Kalay Khan (supra) by Hon’ble Supreme Court is reproduced as under:
“Through these jail petitions, the judgment of the learned High Court has been impugned before us. We find that the judgment of the learned trial Court has arisen out of four different FIRs bearing No. 174/2017, 175/2017, 176/2017 and 177/2017 and the learned Trial Court while applying the provisions of Section 21-M of the Anti-Terrorism Act 1997 has made a consolidated judgment arising out of four separate FIRs which is against the dictates of justice. Even the evidence recorded in one crime report cannot be read in the other. The learned High Court while handing down the judgment as Appellate Court has altogether ignored this aspect of the case.
2. In view of the facts and circumstances, we deem it appropriate to remand the matters to the learned Trial Court to decide the lis afresh after recording evidence in each case separately and decide the same according to the dictates of justice. During the pendency of these trials, the petitioners would be treated as under trial prisoners. Accordingly, these petitions are converted into appeals, allowed and the impugned judgment are set aside.”
11. The omission/illegality pointed out by learned counsel for the appellant is very much clear from the record that separate evidence has not been recorded in both the crimes and learned trial Court has decided both the cases through a consolidated judgment which is not within the domain of the law. Reliance has been placed upon the judgment reported as Nur Elahi vs. The State etc. (PLD 1966 SC 708). It is well settled that evidence recorded in one case cannot be read in another case. Omission on the part of the trial court is not curable in terms of Section 537 Cr.P.C as it has obviously occasioned in failure of justice and caused prejudice to the appellants, such illegality committed by trial Court is not curable. Therefore, while relying upon the cases referred to hereinabove, the impugned judgment is set aside with direction to the learned trial Court to decide the same afresh after recording evidence in each and every case separately according to dictate of justice and decide the case within two months under intimation to this court.
12. Instant appeals are accordingly disposed of.