HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 59 of 2022

Special Criminal Anti-Terrorism Jail Appeal No. 60 of 2022

 

                 Present:       Mr. Justice Naimatullah Phulpoto

                                                                                          Mr. Justice Shamsuddin Abbasi

 

 

Appellant                             :            Fazal Meer through M/s Salahuddin Khan Gandapur, Rashid Bashir and Safiruddin Khan  Gandapur advocates

 

                                                            Nemo for appellant Mian Khan

 

 

Respondent                          :            The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General Sindh

 

Date of Hearing                    :           26.01.2023

 

Date of judgment                 :           26.01.2023

 

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.- Fazal Meer and Mian Khan were tried by learned Judge, Anti-Terrorism Court No. II, Karachi in Special Case No.73/2021 (FIR No. 257/2021 u/s 4/5 Explosive Substance Act 1908 r/w Sec. 7 of ATA 1997 registered at PS Pak Colony) and Special case         No.73-A/2021 (FIR No.258/2021 u/s 4/5 Explosive Substance Act 1908 r/w Sec. 7 of ATA 1997 registered at PS Pak Colony). After full-dressed trial, both the appellants were convicted under section 4/5 Explosive Substance Act, 1908 and sentenced to undergo 07 years R.I each and to pay fine of Rs.50,000/- each and in case of non-payment of fine, they were directed to undergo 30 days S.I each. Appellants were also convicted under section 7(1)(ff) of ATA 1997 and sentenced to undergo R.I for 14 years. All the sentences were directed to run concurrently. Appellants were extended benefit of section 382(b) Cr.P.C.

2.         Brief facts of the prosecution case as mentioned by the trial court in the impugned judgment dated 19.02.2022 are as under:

“Brief facts of FIR No. 257 of 2021 & FIR No. 258 of 2021 are that on 24.12.2020 Inspector Aijaz Memon was on patrolling along with police officials PC Ibrahim, PC Babar, driver PC Rao Furqan in police Mobile-II bearing No.SPB-869, at about 0440 hours when he reached near Awan Hotel, Lovelane Bridge, Liyari Expressway, main Mangopir Road, Karachi, he saw two persons who were coming in suspicious condition, they were inquired their names, who disclosed their names as (1) Mian Khan son of Dosteen Khan (2) Fazal Mir Jan son of Kajir Khan, in absence of private persons, the police officials PC Ibrahim and PC Babar were made as mashirs from personal search of accused Mian Khan son of Dosteen Khan, one plastic shopper containing 01 kilo 45 grams explosive of white colour and one remote control device, one detonator of pink colour and one detonator cord of 01 meter was secured and from his further personal search one original CNIC in the name of Mian Khan and one wallet and one old wrist watch were secured and from personal search of accused Fazal Mir Jan son of Kajir Khan, one plastic shopper containing 01 KG 110 grams explosive of white colour, one detonator of light green, one detonator cord of 01 meter and from his further personal search one original CNIC in the name of Fazal Mir Jan and colour copy of CNIC and Samsung Android Mobile Phone & one ATM card of Faysal Bank along with other miscellaneous cards and one wallet were secured, the weight of explosive as mentioned above was known after weighing on digital weighing machine, the said accused were intending to use the explosive with detonator for the purpose of spreading terrorism, such act of accused fall under section 4/5 Explosive Substance Act, 1908 r/w section 7 of ATA 1997, thereafter, accused were formally apprehended whereas the explosive substance and detonators were seized separately and memo was prepared, thereafter, Superintendent of Police, SITE was informed accordingly on the spot through phone that for inspection explosive along with detonators a BD Team be sent for inspection of the same, after that police party came back to police station along with both accused and FIRs were lodged against both accused separately, thereafter, investigation was entrusted to SIO of Pak Colony.”       

 

3.         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 appellant Mian Khan only at Ex.7 under the above referred sections to which he pleaded not guilty and claimed trial. No charge was framed against appellant Fazal Meer by the trial Court. However, trial Court recorded evidence of five witnesses by providing an opportunity of cross-examination to appellant Fazal Meer also. Thereafter, prosecution side was closed.

4.         Trial Court recorded statements of appellants/accused under Section 342 Cr.P.C at Ex.17 and 18. Appellants claimed their false implication in the case and denied the prosecution allegations. Appellant Mian Khan did not examine himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations. However, appellant Fazal Meer examined himself on oath under section 340(2) Cr.P.C. Both the appellants did not lead any evidence in their defense.

5.         Trial Court after hearing the learned counsel for the parties and assessment of evidence vide judgment dated 19.02.2022, convicted and sentenced the appellants as detailed above.

6.         Mr. Salahuddin Khan Gandapur learned advocate for appellant Fazal Meer at the very outset submitted that after amalgamation of both the cases in terms of Section 21-M of ATA 1997, charge was not framed against both appellants and it was framed only against appellant Mian Khan. It is further submitted that in view of recent judgments passed by Hon’ble Supreme Court 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), evidence should have been recorded in both cases separately, but omission was committed by trial Court. Lastly, it is submitted that evidence of one case cannot be read in another case, illegality was not curable. Therefore, he prayed for remand of the cases to the trial court for their fresh proceeding in accordance with law.   

7.         Learned Additional Prosecutor General Sindh also argued that joint trial was conducted, no illegality has been committed by trial court. It is prayed for dismissal of appeals.

8.         We have carefully heard the arguments and re-examined the evidence recorded by the trial Court. 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.”

 

9.         From perusal of evidence, it transpired that charge was not framed against both appellants/accused by trial court which caused prejudice to accused. Moreover, there are two separate FIRs/cases, evidence should have been recorded separately because evidence recorded in one case cannot be read in another case. Procedure adopted by the trial Court was illegal. 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. Reliance is placed upon the judgment reported as Nur Elahi vs. The State etc. (PLD 1966 SC 708). We hold that omission on the part of the trial court has obviously occasioned in failure of justice and caused prejudice to the appellants, such illegality committed by trial Court is not curable in terms of section 537 Cr.P.C. Therefore, while relying upon the cases referred to hereinabove, the impugned judgment is not sustainable under the law, the same is set aside and case is remanded to the trial Court for proceeding with the cases afresh in the light of the judgment of the Hon’ble Supreme Court and observations of this Court. Trial Court is directed 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 appellants would be treated as under trial prisoners. The trial shall be concluded within two months under intimation to this court.

10.       Learned counsel for the appellants submit that appellants are in custody since more than 03 years. Appellants would be at liberty to apply for bail before learned trial Court, the same shall decide the bail application in accordance with law.

11.       Instant appeals are accordingly disposed of in above terms.  

 

JUDGE

 

 

JUDGE