ORDER SHEET
HIGH COURT OF SINDH
AT KARACHI
Crl. Appeal No. 333 of 2012
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Date order with signature
of judge
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1.
For orders on office objection and reply of Advocate at
flag ‘A’
2.
For Regular Hearing.
20.05.2013
Professor Jamal Ahmed S. Mufti, Advocate for the appellant.
Mr. Zahoor
Shah, A.P.G.
Complainant
Muhammad Ibrahim is present.
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Naimatullah Phulpoto, J.-- Appellant
Fida Hussain alongwith acquitted accused Abdul Qadir alias Riaz was tried by
learned Additional Sessions Judge-1 Karachi West in Sessions Case No.629/2004 (The
State Vs. Fida Hussain and
another) in crime No.153/2004 of P.S. Surjani
Town, under Section 302/34 P.P.C. After
the full-flagged trial, appellant Fida Hussain son of Muhammad Bux was
convicted and sentenced under Section 302 P.P.C. for 14 years R.I. and to pay
fine of Rs.2,00,000/- (Two Lac Rupees) to paid to the legal heirs of the
deceased, vide judgment dated 26.11.2012. However co-accused Abdul Qadir alias
Riaz was acquitted by learned trial Court.
Appellant
Fida Hussain has filed present appeal against conviction and sentence recorded
against him by trial Court as stated above.
Brief
facts of the prosecution case leading to filing of appeal as disclosed in the
F.I.R. are that on 13.10.2004 at 10.00 a.m. complainant was present at his
house, P.W. Muhammad Madni went and informed him that two persons appeared on
the motorcycle at shop and fired upon the brother of the complainant namely
Ghulam Shabbir (deceased) who succumbed to the injuries. Complainant suspected
Muhammad Riaz and Fida Hussain as culprits of the incident,
went to the police station and lodged F.I.R. against the appellant and
acquitted accused Abdul Qadir @ Riaz. It was recorded on 13.10.2004,
vide Crime No.153/2004, under Section 302/34 P.P.C.
During
investigation, both accused persons were arrested. On completion of usual
investigation challan was submitted against the appellant and acquitted accused
Abdul Qadir @ Riaz under Section 302/34 P.P.C. Case was sent up to the Court of
Sessions and it was made over to the learned Ist. Additional
Sessions Judge, Karachi West for disposal according to law.
Charge
against appellant and acquitted accused was framed under section 302/34 PPC. Both
accused met the charge with denial.
In
order to prove its case, prosecution examined complainant Muhammad Ibrahim (Ex.4),
P.Ws. Abdul Rasheed (Ex.7), Muhammad Madni (Ex.8), Judicial Magistrate Mumtaz
Ali Solangi (Ex.10), MLO Dr. Muhammad Tariq (Ex.11),
ASIP Tariq Khalid (Ex.12), P.I/I.O A.S.I. Jaed Iqbal Randhawa (Ex.14), I.O.
Inspector Muhammad Azam (Ex.15), A.S.I. Mashooq Ali (Ex.17). Both accused denied the prosecution
allegations.
The
statements of the appellant and acquitted accused were recorded under Section
342 Cr.P.C. at Ex.19 & 20 respectively.
Learned
trial Court after hearing the counsel for the parties and assessment of the
evidence convicted and sentenced the appellant and co-accused Abdul Qadir @
Riaz was acquitted vide judgment dated 26.11.2012.
Professor
Jamal Ahmed S. Mufti, learned Advocate for the appellant Fida Hussain has
contended that learned trial Court has recorded conviction against the
appellant on the basis of the confession made by the appellant, recovery of the
pistol, positive ballistic report and motive but, according to learned counsel
for the appellant, such pieces of the evidence were not put to the appellant in
his statement recorded under Section 342 Cr.P.C for explanation. He further
submitted that all the pieces of evidence available on record were required to
be put to the accused if the same were against him while recording his statement
under Section 342 Cr.P.C. He further submitted that if any incriminating piece
of evidence is not put to the accused then the same cannot be used against him
for his conviction. In support of his submissions, he has relied upon the case
law reported as Muhammad Shah v. The State (2010 S C M R 1009) &
Sheral alias Sher Muhammad
v. The State (1999 S C M R 697).
Mr.
Zahoor Shah, learned A.P.G. in the above stated circumstances, recorded his no
objection if conviction and sentence are set aside against appellant and
case is remanded to the learned trial Court for recording statement of the
appellant under Section 342 Cr.P.C. in accordance with law.
I
have carefully heard the learned counsel for the parties, perused the entire
evidence, statement of the appellant under Section 342 Cr.P.C. recorded by
learned trial Court on 16.07.2012 and impugned judgment.
From
the perusal of statement of appellant Fida Hussain under section 342 Cr.PC (Ex.19), it transpires that
no question has been put to him regarding confessional statement made by him,
recovery of the pistol, motive and positive chemical report. Statement of the
appellant under section 342 Cr.PC has been recorded in stereo type manner which
is not requirement of the law. In the case of Muhammad Shah (supra)
the Honourable Supreme Court of Pakistan has held as under:
“11. It is not out of place to mention here that both the
Courts below have relied upon the suggestion of the appellant made to the
witnesses in the cross-examination for convicting him thereby using the
evidence available on the record against him. It is important to note that all
incriminating pieces of evidence, available on the record, are required to be
put to the accused, as provided under section 342, Cr.P.C. in which the words
used are “For the purpose of enabling the accused to explain any circumstances appearing
in evidence against him” which clearly demonstrate that not only the
circumstances appearing in the examination-in-chief are put to the accused but
the circumstances appearing in cross-examination or re-examination are also
required to be put to the accused, if they are against him, because the
evidence means examination-in-chief, cross-examination and re-examination, as
provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The
perusal of statement of the appellant, under section 342, Cr.P.C.,
reveals that the portion of the evidence which appeared in the
cross-examination was not put to the accused in his statement under section
342, Cr.P.C. enabling him to explain the circumstances particularly when the
same was abandoned by him. It is well-settled that if any piece of evidence is
not put to the accused in his statement under section 342, Cr.P.C. then the
same cannot be used against him for his conviction. In this case both the Courts
below without realizing the legal position not only used the above portion of
the evidence against him, but also convicted him on such piece of evidence,
which cannot be sustained.”
In
view of above legal position, it is the matter of record that all the
incriminating pieces of the evidence were not put to the appellant Fida Hussain in his statement
recorded under Section 342 Cr.P.C. It is held in the above judgment of the
Honourable Supreme Court that if any incriminating piece of evidence is not put
to the accused in his statement under Section 342 Cr.P.C. then the same cannot
be used against him for his conviction. Mr. Zahoor Shah,
learned A.P.G. has very rightly submitted that the case may be remanded to the
learned trial Court for recording statement of the appellant under section 342
Cr.PC in accordance with law.
For
the above stated reasons, judgment of trial Court against appellant is not
sustainable under the law, conviction and sentence recorded against appellant
vide judgment dated 26.11.2012 are set aside. Case is remanded back to trial
Court for recording statement of the appellant under Section 342 Cr.P.C.
strictly in accordance with law, in the light of above observations, learned
trial Court is further directed to decide the case within one month under
intimation to this Court.
Learned
counsel for the appellant has submitted that appellant is in custody since last
five years and he is entitled for grant of bail. Learned counsel for the
appellant would be at liberty to make such submission before the learned trial
Court if desired so and learned trial Court would consider it strictly in
accordance with law.
Appeal
is allowed to the above extent. R & Ps. be
returned to the trial Court forthwith.
JUDGE
Riaz/P.A*