THE HIGH COURT OF SINDH AT KARACHI

Spl. Crl. Anti-Terrorism Appeals No.56 of 2018.

Spl. Crl. Anti-Terrorism Appeals No.57 of 2018.

Confirmation Case No.02 of 2018.

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants: Muhammad Ibrahim alias Qari Raheem through Mr. Muhammad Naseeruddin, Advocate

Nasir Butt through Syed Lal Hussain Shah, Adv.

Respondent: The State through Mr. Farman Ali Kanasro, Additional Prosecutor General Sindh

Date of hearing: 23.04.2019

J U D G M E N T

NAIMATULLAH PHULPOTO, J:- Muhammad Ibrahim @ Qari and Nasir Butt appellants were tried by Mr. Munir Bakhsh Bhutto, Judge Anti-Terrorism Court No.VI, Karachi in Sessions Case No.A-112/2012. After full-dressed trial, vide judgment dated 19.02.2018, both the appellants were convicted and sentenced as under:-

1) Accused Muhammad Ibrahim alias Qari S/o. Gul Raheem & Nasir Butt S/o. Taj Muhammad are convicted u/s 7(1)(a) ATA 1997, r/w section 302 (b) PPC and they are awarded death sentence, to be hanged till death, with compensation of Rs.200,000/- (Two Lacs) each to be paid to the legal heirs of the victims.

2) Accused Muhammad Ibrahim alias Qari S/o. Gul Raheem and Nasir Butt S/o. Taj Muhammad are also convicted u/s 7(1)(c) and 6(2)(b) ATA 1997 r/w section 324/34 PPC and they are convicted and awarded to suffer Rigorous Imprisonment for ten years and fine 100,000/- each, in default, they shall serve six months more.

2. All the sentences were ordered to run concurrently. The appellants were extended the benefit of section 382-B Cr.PC. Case against absconding accused persons was kept on dormant file. Being aggrieved and dissatisfied by the judgment passed by the trial court, the aforesaid appeals have been preferred. Trial court has also made reference to this court for confirmation of death sentence awarded to the appellants.

3. During the course of arguments, learned advocates for the appellants have pointed out that the trial court has committed illegality at the time of recording the evidence of complainant Mst. Uzma Saood, PW-6, the sole eyewitness of the case. Learned advocates for the appellants while elaborating the contention submitted that it is evident from her evidence recorded at Ex.21 that examination-in-chief of Mst. Uzma Saood had been recorded by the trial court in absence of advocate for accused Muhammad Ibrahim alias Qari and cross-examination has been reserved on 10.03.2015 at the request of Muhammad Ibrahim alias Qari that his counsel was not in attendance.

4. Mr. Farman Ali Kanasro, Additional Prosecutor General Sindh, after perusal of the evidence and case diaries, admits that examination-in-chief of complainant Mst. Uzma Saood was recorded in absence of the advocate of Muhammad Ibrahim alias Qari. Both the counsel are of the view that it was the illegality committed by the trial court and it is not curable and prayed for remand of the case while relying on the cases reported as SHAFIQUE AHMED alias SHAHJEE versus The STATE (PLD 2006 Karachi 377).

5. In order to appreciate the contention of learned counsel for the parties, we have carefully examined the evidence of Mst. Uzma Saood, PW-6 at Ex.21, she is sole eyewitness of the incident and injured witness. It is correctly pointed out by the learned counsel for the appellants that examination-in-chief of Mst. Uzma Saood had been recorded by the trial court on 10.03.2015 in absence of the advocate for accused Muhammad Ibrahim alias Qari. It is requirement of the law that examination-in-chief as well as cross-examination and even re-examination, if any, should be recorded by the trial court in presence of defence counsel. In case the defence counsel fails to appear then the services of the advocate on State expenses shall be provided to the accused in the cases punishable for capital punishment. This is also a case which carries capital punishment. Wisdom behind this principle is that in case examination-in-chief of the witnesses is recorded and advocate for accused is present he may raise objection regarding inadmissible pieces of evidence or some leading question and ensure that something is not put in the mouth of the witness by the Prosecutor. It is the requirement of the law that evidence of the witnesses to be recorded by the trial court particularly in the cases which carry capital punishment in presence of the defence counsel.

6. From the perusal of evidence of Mst. Uzma Saood at Ex.21, it is clear that her evidence had been recorded by Mr. Anand Ram D. Sairani, Judge ATC Court No.IV, Karachi in absence of Mr. Intikhab Alam, Advocate for accused Muhammad Ibrahim alias Qari and cross-examination was reserved at the request of Muhammad Ibrahim alias Qari as his counsel was not in attendance. Evidence means examination-in-chief, cross-examination and re-examination, if any, as provided under Article 132, read with Articles 2(c) and 71 of the Qanun-e-Shahadat Order, 1984 as held by the Honourable Supreme Court in the case Muhammad Shah versus The State (2010 SCMR 1009).

7. Since the illegality had been committed by the trial court while conducting the trial of the case which carries capital punishment, that illegality is not curable under the law. Resultantly, conviction and sentence recorded by the trial court vide Judgment dated 19.02.2018 are not sustainable under the law and same are set-aside and the case is remanded back to the trial court only for the limited purpose for recording examination-in-chief as well as cross-examination and re-examination, if any, of Mst. Uzma Saood in presence of defence counsel by providing a fair trial to the parties. After doing the needful, statement of accused under section 324, Cr.PC shall be recorded afresh and after hearing the learned counsel for the parties, the trial court shall pass the judgment in accordance with law.

8. At this stage, learned counsel for the appellants submit that since Mr. Munir Bakhsh Bhutto, learned Judge Anti-Terrorism Court-VI, Karachi had already formed his view/opinion, it would be better that the case may be entrusted to another court. Additional Prosecutor General has recorded no objection. The case is entrusted to learned Judge, ATC Court No.VII, Karachi for recording evidence of Mst. Uzma Saood afresh and statement of accused under section 342, Cr.PC and to pass the judgment afresh in accordance with law within a period of two months under intimation to this court. So far as the confirmation reference made by the trial court is concerned, the same is answered in negative.

9. Office is directed to send copy of the judgment and R and Ps to the trial court forthwith. Counsel for the parties are directed to appear before the trial court on 06.05.2019. Learned Judge, Anti-Terrorism Court-VII, Karachi shall issue summons to complainant Mst. Uzma Saood and P.O. for accused persons for the aforesaid date of hearing so that the trial could be concluded as directed by this court.

10. In view of above, these appeals as well as Reference No.02 of 2018 are disposed of in the above terms.

J U D G E