Special Criminal Anti-Terrorism
Jail Appeal No.136 of 2017
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Malik Gadi
Appellant: Shaukat Ali son of Abdul
Haq Bulaidi through Mr. Abdul Razzak, advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
Date of Hearing : 06.11.2017
Date of Judgment : 07.11.2017
JUDGMENT
MR. JUSTICE NAIMATULLAH PHULPOTO.- Appellant Shaukat Ali and
Rehmatullah were tried by learned Judge, Anti-Terrorism Court-II, Karachi in
Special Cases Nos.194, 152, 286 and 287 of 2011. By judgment dated 19.02.2015,
appellant Shaukat Ali was convicted under section 7(e) sub section 2 of the
Anti-Terrorism Act, 1997 for 10 years R.I.; under section 13(d) Arms Ordinance, 1965, for 3 years R.I.
and in police encounter case bearing Crime No.152/2011 under section 353, 324,
34 PPC for 2 years R.I. Co-accused Rehmatullah was convicted under section
13(d) Arms Ordinance, 1965 and in police encounter case bearing Crime
No.152/2011 under section 353, 324, 34 PPC for 2 years R.I. All the convictions
were ordered to run concurrently. Appellants were extended benefit of Section 382-B
Cr.P.C.
2. Brief facts of the prosecution case as discussed
in the F.I.R. are that on one Muhammad Ali lodged his report on 13.11.2011 at
about 1400 hours, alleging therein that on 08.11.2011, his son, namely, Abdul
Hameed, aged about 3 years went out of the house at 0900 hours to play but he
did not return back. It was alleged that boy was searched in Mohalla but
without any clue. It is alleged that complainant received a call on his Cell
No.0307-2696305 from mobile No.0305-2331339, disclosing his name as Wilayat Ali
and stated that son of the complainant had been kidnapped for ransom and demanded
Rs.500,000/- for release of boy, else threat was extended that boy would be
murdered. It is alleged that complainant recognized voice of the caller as that
of Shaukat Ali, he knew him before the incident. Complainant lodged F.I.R. at
P.S. Gulistan-e-Jouhar, Karachi, it was recorded vide Crime No.658/2011 under
section 365-A, PPC read with section 7 of the Anti-Terrorism Act, 1997.
3. On 14.11.2011, three FIRs bearing Crimes
Nos.225, 226 and 227 of 2011 regarding offence under sections 324, 343, 34 PPC
and two FIRs for offence under section 13(d) of Arms Ordinance, 1965 were
registered at P.S. “A” Section, Sukkur. On 12.12.2011 IO collected call data of
Cell No.0305-2331339 in Crime No.658/2011. Accused Shaukat Ali prepared to make
judicial confession and he was produced before XVth Judicial
Magistrate, Karachi East on 26.11.2011 where his confessional statement was
recorded and accused Shaukat Ali was remanded to judicial custody. On the
conclusion of investigations, challan was submitted against the accused for
offences under sections 365-A, PPC read with section 7 Anti-Terrorism Act,
1997; 353, 324, 34, PPC and section 13(d) of the Arms Ordinance, 1965. Cases
under sections 324, 353, 34 PPC and section 13(d) of the Arms Ordinance, 1965
were amalgamated with main cases under section 365-A, PPC read with section 7
of the Anti-Terrorism Act, 1997 by the trial court in terms of Section 21-M of
the Anti-Terrorism Act, 1997.
4. Trial court framed charge against the
accused on 20.03.2013. Both the accused pleaded not guilty and claimed to be
tried.
5. At trial, prosecution examined 12
prosecution witnesses. PW-1 Muhammad Ali
(complainant) spoiled the entire case of prosecution during cross-examination.
PW-2 Mst. Zar Bibi was declared as a hostile witness. PW-3 ASI Wajid Ali deposed that on 18.11.2011,
he was posted at AVCC and was HC. IO Inspector Ali Muhammad took him and other
two police officials for arrest of accused in Crime No.658/2013. He went to
P.S. “A” Sections and kept entry at P.S. and brought the accused persons from
lockup with handcuffs who admitted their guilt. Both accused were interrogated
separately by IO. IO prepared such mashirnama of arrest in presence of mashir
HC Wajid Ali and PC Tanveer Khan. Memo of arrest was prepared on 19.11.2011. PW-4
ASI Muhammad Afzal deposed that was duty officer at PS Gulistan-e-Jouhar,
Karachi and on arrival of complainant he lodged F.I.R. against the accused
Shoukat Ali. PW-5, Muhammad Babar
deposed that on 12.12.2011 he was posted as Inspector at AVCC. On the
same date, he accompanied with inspector Ali Muhammad, went to Computer Section
of AVCC and collected call data of Cell No.0305-2331339 which was required in
Crime No.658/2011 under section 365-A, P.S. Gulistan-e-Jouhar, Karachi, which
consisted upon 9 pages. PW-6 Malik Muhammad Akhtar, Civil Judge & Judicial
Magistrate deposed that on 26.11.2011, he was posted at XVI Civil Judge &
Judicial Magistrate Karachi East and Incharge of XV Court of Civil Judge &
Judicial Magistrate, Karachi East. He recorded confessional statement of
accused Shaukat Ali u/s 154, Cr.PC by applying all the legal formalities. PW-7
Abdul Jabbar Mahar deposed that on 14.11.2011 he was on patrolling duty within
the jurisdiction of “A” Section P.S. Sukkur vide entry No.16-A along with
police officials and received information on telephone that three years’ child
kidnapped from the jurisdiction of Gulistan-e-Jouhar, Karachi is being taken from
City Bypass Sukkur towards Barrage Colony in the car. After an encounter, both
accused Shaukat and Rehmatullah were arrested and recovery of the abductee
child was also effected from the car. Such mashirnama of arrest and recovery
was prepared in presence of mashirs SIP Qazi Saeed Ahmed and SIP Abdul Jabbar
and brought the accused, abductee boy and case property at P.S. “A” Section
Sukkur and F.I.R. Nos.225, 226 and 227 of 2011 were registered under sections
324, 353, 34, PPC and section 13(d) of the Arms Ordinance, 1965. PW-8 ASI
Muhammad Saeed Qazi deposied supported the version of PW-7 regarding the
incident dated 14.11.2011 being a mashir of recovery. PW-9 PC Nawab Khan of P.S.
“A” Section Sukkur also fully supported the evidence of PWs 7 and 8 regarding
the incident dated 14.11.2011. PW-10, HC Abdul Jabbar deposed that he was
Incharge of 15 Madadgar and supported the version of PWs 7 and 8 regarding the
incident dated 14.11.2011. PW-11 Ali Muhammad SIP deposed that he was posted at
AVCC as Inspector and received the investigation of F.I.R. No.658/2011
registered at P.S. Gulistan-e-Jouhar, Karachi under section 365-A, PPC. On 16.11.2011,
SIP Qazi Saeed Ahmed of P.S. “A” Section Sukkur informed him about arrest of
two accused and recovery of child, he went to Sukkur on 18.11.2011 by informing
and getting permission of high-ups He obtained the custody of accused by moving
an application to IIIrd Judicial Magistrte, Sukkur for transitory
remand. On 26.11.2011 accused Shaukat Ali was produced before the Judicial
Magistrate concerned having jurisdiction, who recorded his confessional
statement. PW-12 PI Niaz Ahmed had submitted
only supplementary challan against accused Shaukat Ali and Rehmatullah.
6. Statement of accused was recorded under
section 342, Cr.PC in which accused claimed false implication in this case and
denied the prosecution allegations.
7. After hearing
the learned counsel for the parties and assessment of evidence, by judgment
dated 20.03.2013 trial court convicted and sentenced the appellant and
co-accused Rehmatullah as stated above.
8. The facts of the case as well as evidence produced before
the trial Court find an elaborate mention in the judgment dated 20.03.2013
passed by the trial Court and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
9. Learned
advocate for the appellant raised preliminary legal point that appellant was
not properly defended before the trial court; charge was framed in absence of
the defence counsel on 07.09.2013 and examination-in-chief of the complainant
was also recorded in absence of the advocate for the appellant. Therefore, it
is contended that trial has been initiated, illegally committed by the trial
court was not curable. Lastly, it is contended that a case punishable for death
cannot be proceeded in absence of defence counsel.
10. Learned D.P.G. conceded to the above legal
position and recorded no objection, for remand of the case to the trial court
for proceeding afresh in accordance with law.
11. We have carefully heard the learned counsel
for the parties and perused the record of this case.
12. Offence under section 9(c) of the Control
of Narcotic Substances Act, 1997 is punishable for death or imprisonment for
life. For the sake of convenience, section 9(c) of the Control of Narcotic Substances
Act, 1997 is reproduced as under:-
9(c) death
or imprisonment for life, or imprisonment for a term which may extend to
fourteen years and shall also be liable to fine which may be upto one million
rupees, if the quantity of narcotic drug, psychotropic substance or controlled
substance exceeds the limits specified in clause (b):
Therefore, the appellant was
required to be defended by a counsel and trial was required to be conducted in
presence of his counsel. If appellant was unable to engage an advocate, then
trial court was required to provide facility of a counsel on State expenses before
framing of the charge but in the present case, charge and
examination-in-chief of PW-1 was
recorded in absence of the advocate for the appellant. That the trial in
absence of the advocate for the appellant is an illegal trial which cannot be
cured under section 537, Cr.PC.
13. Now it is to be seen whether trial
conducted by learned Special Judge, CNS in the above manner has been vitiated
or otherwise.
14. Article 10-A of the Constitution of Islamic
Republic of Pakistan, 1973 reads as under:-
“10-A Right to fair trial.- For the determination
of his civil rights and obligations or in any criminal charge against him a
person shall be entitled to a fair trial and due process”
Above
article provides that the accused shall not be denied the right to consult and
be defended by a legal practitioner of his choice.
15. Under
section 340(1), Cr.P.C. accused is entitled, as a matter of right, to be
defended by a pleader. The said provision reads as under:-
"340. Right of person against whom
proceedings are instituted to be defended and his competency to be a
witness.--(1) Any person accused of an offence before a Criminal Court or
against whom proceedings are instituted under this Code in any such Court, may
of right be defended by a pleader."
16. Circular 6 of Chapter VII of Federal
Capital and Sindh Courts Criminal Circulars provides that on the committal of
the case the Magistrate is required to ascertain from the accused as to whether
he intends to engage a legal representative at his own expenses otherwise the
Sessions Court would provide an Advocate on State expenses to defend him. The
said Circular reads as under:-
"6. In all cases in a Court
of Session in which any person is liable to be sentenced to death, the accused
shall be informed by the Committing Magistrate at the time of committal, or if
the case has already been committed by the Sessions Court that, unless he
intends to make his own arrangements for legal assistance, the Sessions Court
will engage a Legal practitioner at Government expense to appear before it on
his behalf. If it is ascertained that he does not intend to engage a legal
representative at his own expenses, a qualified Legal Practitioner shall be
engaged by the Sessions Court concerned to undertake the defence and his
remuneration, as well the copying expenses incurred by him, shall be paid by
Government.
The appointment of an advocate or
pleader for defence should not be deferred until the accused has been called
upon to plead. The Advocate or pleader should always be appointed in sufficient
time to enable him to take copies of the deposition and other necessary papers
which should be furnished free of cost before the commencement of the trial. If
after the appointment of such legal representative the accused appoints another
Advocate or pleader, the Advocate or pleader appointed by the Court may still
in its discretion be allowed his fee for the case."
17. Rule
35 of Sindh Chief Court Rules (Appellate Side) also deals with the same subject
which reads as under:--
"35. In what matters Advocate appointed at Government cost. When on a
submission for confirmation under section 374 of the Code of Criminal
Procedure, 1898, or on an appeal from an acquittal or on an application for
revision by enhancement of sentence the accused is undefended, an Advocate
shall be appointed by the Division Court to undertake the defence at the cost
of Government in accordance with the Government notification or rules relating
thereto. Such Advocate shall be supplied a copy of the paper book free of cost."
18. From the above legal
position, it transpires that an accused is required to be defended by a counsel
of his choice as a matter of right. If an offence involves capital punishment,
the law protects the right of the accused as a duty has been cast upon the
State to bear the expenses of the advocate. If accused has not engaged an
advocate then the Sessions Court / Special Court is duty bound to engage a
legal practitioner on State expenses to defend the accused. It is one of the
duties of the trial court to see that accused is represented by a qualified
legal practitioner in the cases involving capital punishment. Thus, it is the mandate of the law that cases involving
capital punishment shall not be tried in the absence of advocate for the
accused or proceeded with, without first appointing an Advocate for the accused
to defend him if he is unable to do so. In the present case, appellant was
unable to engaged a counsel. He submitted application and Examination-in-Chief
of PW-1 was recorded. Nevertheless, it was the duty of the trial court in trying
the case containing capital punishment to be very cautious and careful in
examining the witness as such trial court should have inquire from the accused
about non-engaging his advocate before examining the witnesses. From the record
it appears trial court did not perform its functions diligently so as to
protect the rights of the appellant in the case involving the capital
punishment when accused had not engaged a counsel.
19. We have no hesitation to hold that the
appellant was prejudiced in his trial and defence, therefore, a miscarriage of
justice has occurred in this case. The procedure adopted by the trial court is an
illegal procedure, that cannot be cured under section 537, Cr.PC as held in the
case of SHAFIQUE AHMED alias SHAHJEE versus THE STATE (PLD 2006 Karachi 377).
Hence impugned judgment is liable to be set-aside.
20. For what has been discussed above the
conviction and sentence awarded to the appellant under the impugned judgment dated
16.02.2016 are set aside. The case is remanded to the trial court for retrial
from the stage of framing fresh charge and that too in presence of the advocate
of the appellant. If the appellant engages his Advocate then he may be allowed
to do so. If appellant does not engage an advocate, then advocate on State
expenses be provided to the accused to defend him. Appeal is allowed to above
extent.
21. The Registrar of this Court shall send a
copy of this judgment to Mr. Sanaullah
Khan Ghory, Judge, Special Court-II (CNS), Karachi wherever he is posted for his
future guidance with advice to be careful in future.
J U D G E
J U D G E
Gulsher/PS