IN
THE HIGH COURT OF SINDH AT KARACHI
Cr.
Appeal No. 01 of 2014
Present:
Mr.
Justice Naimatullah Phulpoto, J.
Appellant Mushtaq Ali through
Mr. Jehanzeb Khan, advocate
Respondent The State through Mr. Abrar Ali Khichi, Assistant
Prosecutor General, Sindh Assisted by Mr. Aman
Khattak, advocate for the complainant
Date of hearing 27th
August, 2015
Date of announcement : 08th September, 2015
J U D G M E N T
Naimatullah Phulpoto, J.--- Appellant Mushtaq Ali was
tried by learned Additional Sessions Judge-II, Karachi West in Sessions Case No.227/2007. On the conclusion of trial, appellant was
found guilty and convicted by judgment dated 11.12.2013 under Section 377 PPC and sentenced to 10 years R.I
and to pay fine of Rs.10,000/-. In case of default in
payment of fine, he was ordered to suffer S.I for two
months more.
2. Brief facts of the prosecution case as disclosed in the FIR
are that one Abdul Latif lodged his report alleging
therein that he is serving as a Store Officer. On 27.03.2007 after performing
his duty, he came at home at 7:30 p.m. his mother told him that one Mohallah boy namely Mushtaq Ali son of Wazir
Gul has committed sodomy with his younger brother namely Nouman
at the house of the accused. It is alleged that Nouman
aged about 6 years while weeping came back at the home and he was unable to
walk. Thereafter, complainant alongwith PW-Darya Khan caught hold the accused
Mushtaq in the street and produced him at the police station SITE. Victim Nouman’s shalwar was also produced before the police. F.I.R. was recorded against accused under section 377 PPC. After usual
investigation, challan was submitted against accused under above referred
section.
3. Charge was framed against accused Mushtaq Ali at Ex-2. Accused pleaded not guilty to the charge and claimed to be
tried.
4. In order to prove its’ case,
prosecution examined PW-1 Darya Khan at Ex-3; PW-2 complainant Abdul Latif at Ex-4; PW-3 Khalid Khan at Ex-5; PW-4 Mr. Ali Ahmed Jan, Civil Judge/Judicial Magistrate, West Karachi
at Ex-6; PW-5 Dr. Qarar
Abbasi (MLO) at Ex-7; PW-6
victim Nouman at Ex-8; PW-7 Shah Begum at Ex-9 and PW-8
SIP Zahir Shah at Ex-10. Thereafter,
prosecution side was closed.
5. SIP Khalid Khan has stated that on 18.03.2007 he was present
on his duty at PS SITE. At 3:00 p.m. two person namely Abdul Latif and Darya Khan brought the accused Mushtaq at PS. He
recorded the statement of Abdul Latif and arrested
the accused and prepared such mashirnama. SI-Ghulam Mustafa of PS SITE produced
accused Mushtaq in Crime No. 124/2007 of PS SITE for recording his confessional
statement before Judicial Magistrate. Mr. Ali Ahmed Jan, Judicial
Magistrate-II, Karachi West recorded confessional statement of accused Mushtaq
in the aforesaid crime after observing all legal formalities. Accused in his
confessional statement has admitted that he has committed sodomy with victim
boy. After recording his confessional statement he was remanded to jail
custody. In the cross-examination Judicial Magistrate has replied that perhaps
accused was juvenile at the time of recording his confessional statement.
6. Medical Officer Dr. Qarar Ahmed, Sr.
MLO Civil Hospital had examined victim boy Nouman on 28.03.2007 and stated that victim was subjected
to the act of sodomy. He had also examined accused and found
him capable to perform sexual act and potent. He issued such certificate
at Ex. 7/B. In the cross-examination to Mr. Hameedullah
advocate for the accused doctor replied that accused inserted his penis into
the anal of victim.
7. Thereafter, on 14.10.2013 learned advocate for the appellant
submitted an application for amendment of the charge on the ground that
appellant was aged about 11 years at the time of commission of offence.
Application was allowed by trial court vide order dated 14.10.2013. Amended
charge was framed at Ex. 13 U/s. 377 PPC. Thereafter
advocate for the accused submitted his statement dated 14.10.2013 at Ex-14 to
adopt the prosecution evidence already on record. It appears that on said
statement orders have not been passed by the learned judge and case was fixed
for recording statement of accused under section 342 Cr.PC.
9. Statement of accused was recorded under section 342 Cr.PC at Ex-15. Accused denied the commission of
sodomy with victim boy. Regarding second question that he was capable to
perform sexual act as per medical certificate brought on record at Ex-7.
Learned Judge has not recorded the answer of the accused and it is blank.
Thereafter, accused has been convicted and sentenced as stated above.
7. Mr. Jehanzeb Khan learned advocate
for the appellant Mushtaq argued that procedure adopted by the trial court on
the application of the accused for adopting the same evidence after amended
charge was illegal. Conviction and sentence awarded to the appellant on the
basis of such evidence without providing fair opportunity to the parties is not
sustainable under the law. He has argued that trial Court did not record
statement of accused according to law, reply of accused with regard to question
No.2 is not written by the trial Court. He has argued
that case may be remanded to trial Court. In support of his arguments he relied
upon the case of MODRA and others versus THE STATE (PLD 1958 SC 275).
8. Mr. Abrar Ali Khichi, learned APG argued that after amended charge, counsel for the
appellant had submitted statement before the trial court for adopting the same
evidence already on record. However, he has submitted that case may be remanded
to trial Court.
9. After hearing the learned counsel for the parties, scanned the
entire evidence available on record. It appears that charge was framed against
accused under Section 367-A PPC at Ex-2. Prosecution produced
evidence. Thereafter, an application was submitted by advocate for accused on
14.10.2013 for amendment of the charge on the ground that accused was aged
about 11 years at the time of commission offence and he was unable to perform
sexual act. On the same date application was allowed by the trial Court and
amended charge was framed under section 377 PPC at
Ex-13. On the same date, i.e. 14.10.2013, advocate for accused submitted
statement at Ex-14 to adopt the same prosecution evidence which was already
available on record. It appears that no order has been passed on the said
statement. Thereafter, case was fixed for recording of statement of accused
under section 342 Cr.PC. Question No.2 was put to accused that “you were capable to perform sexual act”,
answer is blank. It is not understandable that why reply of accused has not
been mentioned. Learned advocate for accused during trial had submitted
application that accused was aged about 11 years at the time of commission of
offence. In the Juvenile Justice System Ordinance 2000, “child” means a person,
who at the time of commission of offence, has not attained the age of 18 years.
It was the duty of the trial Court to have determined the age of the accused
but it has not been done during trial of accused. Apart from that, after
amendment of the charge, trial Court should have provided an opportunity to the
prosecution to substantiate the charge framed under section 377 PPC by producing prosecution witnesses with fair
opportunity to the accused for cross-examination but such procedure as
prescribed in law was not adopted by the trial Court. Apart from that from the
perusal of the statement of accused recorded under section 342 Cr.PC at Ex-15,
it appears that no question has been put to accused regarding confessional
statement made by him. Statement of accused has been recorded by the trial
Court without application of judicial mind. All the incriminating pieces of
evidence were not put to accused in his statement which is the requirement of
law. Learned judge in the impugned judgment, at page-6, has relied upon the
evidence of Mr. Ali Ahmed Jan, Civil Judge & Judicial Magistrate, Karachi
West, who deposed before the trial Court that accused made confessional
statement before him regarding the commission of the offence. It is well-settled law that if
any piece of evidence is not put to the accused in his statement under section
342, Cr.PC then the same cannot be used against him for his conviction. In this
case, learned Additional Sessions Judge without realizing the above legal
position not only used the above portion of the evidence of Magistrate
regarding confessional statement of accused used against him, but also
convicted him on such piece of evidence, which is not permissible under the
law. In case of
MUHAMMAD SHAH versus THE STATE (2010 SCMR 1009), Honourable
Supreme Court of Pakistan has observed 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, CrP.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.
13. In view of above legal position, I am clear in my mind to hold
that the judgment of the trial Court is not sustainable under the law. Conviction
and sentence awarded to the appellant by trial Court vide judgment dated
11.12.2013 are set-aside. Case is remanded to the trial Court for retrial in
accordance with law. Trial Court is directed to decide the case expeditiously.
Appeal is allowed to the above extent.
J U D G E
Gulsher/PA