IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.D-07 of 2018
Appellant/Complainant : Sahib Khan s/o Rozi Khan Babar
Through Mr. Ahsan Ahmed Qureshi, Advocate
Respondents/accused : Imtiaz and six others through
Mr.Ghulamullah Memon, Advocate
: The State through Mr.Sharafuddin Kanhar,
A.P.G
(2) Criminal Appeal No.S-31 of 2018
Appellant/accused : Aijaz Ali s/o Shoukat Babar
Through Mr. Ghulamullah Memon, Advocate
Complainant : Sahib Khan Babar through
Mr.Ahsan Ahmed Qureshi, Advocate
: The State through Mr.Sharafuddin Kanhar,
A.P.G
(3) Criminal Revision Appln.No.S-32 of 2018
Applicant/complainant : Sahib Khan s/o Rozi Khan Babar
Through Mr. Ahsan Ahmed Qureshi, Advocate
Respondents : The State through Mr.Sharafuddin Kanhar,
A.P.G
Date of hearing : 04.12.2018
Date of decision : 18.12.2018
J U D G M E N T
IRSHAD ALI SHAH, J-. It is case of prosecution that accused Imtiaz Ali, Imran Ali, Ali Bux, Barkat Ali, Ghulam Shahzeb, Bakhshal, Ranjhan and Aijaz Ali with one unknown culprit, after having formed an unlawful assembly and in prosecution of their common object, committed Qatl-e-Amd of Mst.Hameedan, by causing fire shot injuries to her and then went away by making fires in air to create harassment and were accordingly reported upon by the police to face trial. At trial, they were charged for the above said offence. Unfortunately, such charge did not contain name of accused Aijaz Ali. The case however proceeded against the said accused when it was at the verge of its conclusion, it was brought to the notice of learned trial Court that the charge so framed against accused did not contain name of Aijaz Ali. The charge was amended accordingly and name of accused Aijaz Ali was included therein. The evidence already recorded was adopted and in that respect order dated 10.08.2017 was passed by learned trial Court. Subsequently, the prosecution closed its side and then statements of the accused u/s 342 Cr.PC were recorded.
2. The defence put forth by the accused was of their innocence. SIP Muhammad Aslam was examined in his defence by accused Aijaz Ali. Except accused Aijaz Ali, none of the accused examined anyone in his defence. All of the accused however did not examine themselves on oath in disproof of the prosecution allegation.
3. It was stated by DW SIP Muhammad Aslam that on investigation, he released accused Aijaz Ali, Ali Bux, Ranjhan and Bakhshal under section 497 Cr.PC.
4. On conclusion of trial, learned trial Court acquitted all the accused excepting Aijaz Ali, he for an offence punishable u/s 302 (b) PPC for committing Qatl-e-Amd of Mst.Hameedan, was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- to legal heirs of the said deceased and in case of his failure to make payment of fine to undergo S.I for six months with benefit of Section 382-B Cr.PC.
5. Accused Aijaz Ali being aggrieved of conviction and sentence, impugned the same by way of preferring an appeal, while complainant Sahib Khan being aggrieved of acquittal of accused Imtiaz Ali, Imran Ali, Ali Bux, Barkat Ali, Ghulam Shahzeb, Bakhshal and Ranjhan, preferred criminal acquittal appeal and he also filed a criminal revision application for enhancement of conviction and sentenced awarded to accused Aijaz Ali. All those are now being heard and disposed of through single judgment.
6. It is contended by learned counsel for accused Aijaz Ali that; he being innocent has been involved in this case falsely by the complainant party, he on investigation was found to be innocent and was accordingly let-off by the police, he has been convicted and sentenced by learned trial Court without framing of charge on the basis of improper assessment of the evidence. By contending so, he sought for acquittal of accused Aijaz Ali. In support of his contention, he relied upon cases of Muhammad Ali Vs. The State (2015 SCMR-137, 2). Tarique Vs. The State (2017 SCMR-1672), and 3). Imtiaz alias Taj Vs. The State and others (2018 SCMR-344).
7. It is contended by learned counsel for the complainant that learned trial Court has punished accused Aijaz Ali inadequately and has recorded acquittal of accused Imtiaz Ali, Imran Ali, Ali Bux, Barkat Ali, Ghulam Shahzeb, Bakhshal and Ranjhan, without lawful justification, on the basis of same evidence. By contending so, he sought for adequate punishment for all the accused.
8. It is contended by learned counsel for accused Imtiaz Ali, Imran Ali, Ali Bux, Barkat Ali, Ghulam Shahzeb, Bakhshal and Ranjhan that they have rightly been acquitted by learned trial Court on the basis of proper assessment of the evidence. By contending so, they sought for dismissal of the instant criminal acquittal appeal.
9. Learned A.P.G for the State was fair enough to say that no charge was framed against accused Aijaz Ali, statements of accused recorded u/s 342 Cr.PC are defective and judgment has not been delivered in accordance with mandate contained by Section 367 Cr.PC.
10. We have heard learned counsels for the parties and perused the record.
11. Section 535 Cr.PC provides that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless in opinion of the Court of appeal or revision a failure of justice infact has occasioned thereby. In the instant case, as said above, in first instance, accused Aijaz Ali was neither charged for the above said offence, nor was his plea recorded by learned trial Court. Subsequently, on conclusion of the trial, he was charged for the said offence, by amending the charge which was framed already. If the charge would not have been framed against accused Aijaz Ali, then his case would have been examined under section 535 Cr.PC in context of failure of justice. The moment he was charged then legitimate right arose in his favour to have fresh trial in accordance with law. In that situation, the adoption of the evidence already recorded could bear no legal effect even with consent of learned counsel for the parties. In that situation, it could be concluded safely that no conviction or sentence could be maintained in case like present one, when accused was not charged for the same.
12. In case of Ali Gul Abro and another Vs. The State (2018 PCr.LJ-858), wherein it is held by the Honourable Court that;
“---Circumstances established that accused-appellants were forced not only to face the trial without charge but also to face a conviction followed a sentence of life imprisonment---Case was therefore, remanded by setting aside conviction and sentence with the direction to frame the charge afresh and proceed with de novo trial”.
13. Section 342 Cr.PC provides that every circumstance which appears in evidence is to be put to the accused for his explanation. In the instant case, it was case of prosecution that from place of incident were secured five empties of pistol and blood stained earth, the blood stained earth later-on was subjected to chemical examination. Surprisingly, no question with regard to above said recovery was put to any of the accused for his explanation. Such omission could not be lost sight of, which infact has rendered the statements of accused recorded u/s 342 Cr.PC to be defective one.
14. In case of Qaddan and others Vs. The State (2017 SCMR-148), wherein it is held by the Honourable Apex Court that;
“---S.342---Statement of an accused recorded under S.342, Cr.P.C.---Any piece of evidence not put to an accused person at the time of recording of his statement under S.342, Cr.P.C. could not be considered against him”.
15. The judgment so passed by learned trial Court is also appearing to be hit by provision of Section 367 Cr.PC, which reads as under;
“367. Language of judgment: Contents of judgment. (1) Every such judgment shall except as otherwise expressly provided by this Code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, or in English and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open court at the time of pronouncing it and where it is not written by the presiding officer with his own hand every page of such judgment shall be signed by him.
(2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced.
(3) Judgment in alternative. When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.
(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed”.
16. The points for determination, framed by learned trial Court, in its’ judgment reads as under;
1. Whether deceased Mst.Hameedan died due to unnatural death on 17.10.2013?
2. Whether on 17.10.2013, at 02.00 p.m, in front of the house of complainant on the branch Naro situated in Village Bajhi Khan Babar, Deh Gharo, Taluka K.N.Shah, present accused being armed with pistols, in prosecution of common object formed an unlawful assembly, committed rioting, abused the complainant party, made aerial firing upon them by endangering their lives and committed Qatl-e-Amd of Mst.Hameedan the daughter of complainant knowingly and intentionally by means of fire?
3. What should the judgment be?
17. From above, it is apparent that the charge included different and distant offences, allegedly committed by all the accused therefore, it was obligatory upon the learned trial Court to have decided ‘acquittal or conviction’ of the accused before it, from charge of such independent offences. The conclusion, so drawn by learned trial Court in its judgment reads as under;
“As a result of my findings on Point No.2 accused Aijaz Ali s/o Shoukat Babar is guilty of Charge u/s.302 (b) PPC for causing death to deceased Mst.Hameedan. The accused Aijaz Babar is convicted u/s.265-H(2) Cr.PC and sentenced to suffer life imprisonment and he shall pay the fine of Rs.50,000/- (fifty thousand) and in default of payment he shall further undergo S.I for six months. However, if the fine recovered the same shall be paid to L.Rs of the deceased as compensation as provided u/s 544/A Cr.PC. The benefit of section 382-B Cr.PC is also extended to accused right from the date of his arrest”.
18. Prima facie, accused Aijaz Ali has neither been acquitted nor convicted for an offence punishable u/s 337-H(2) PPC allegedly for endangering the lives of the complainant and his witnesses by making fires in air to create harassment at the time of incident, which is a clear departure from mandatory requirement of Section 367 (2) and (4) of Criminal Procedure Code. Further, accused Aijaz Ali was found guilty for an offence punishable u/s 302 (b) PPC which entails punishment of death. No reason is recorded by learned trial Court for awarding any punishment other than death to accused Aijaz Ali, which too is departure to mandatory provision of Sub Section (5) to Section 367 Cr.PC. By committing such omissions, the learned trial Court has committed material illegality by delivering the impugned judgment, which could not be overlooked or cured by this Court.
19. In view of the facts and reasons discussed above, the impugned judgment is set-aside with direction to learned trial Court to proceed with the case afresh against all the accused in accordance with law and to conclude the same preferably within sixty days.
20. The instant criminal acquittal appeal, criminal appeal and criminal revision application are disposed of accordingly.
JUDGE
JUDGE.