HIGH COURT OF SINDH AT KARACHI

Spl. Criminal A.T. Jail Appeal No.245 of 2017

Confirmation Case No.09 of 2017

Present:

Naimatullah Phulpoto, J.

Rasheed Ahmed Soomro, J.

Appellants: Sanwal alias Charya son of Rana Muhammad Ishaq through Mr. Qadir Hussain & Ms. Shehla Anjum, advocates.

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

Date of hearing: 27/08/2018

Date of announcement: 27/08/2018

JUDGMENT

NAIMATULLAH PHULPOTO, J:- Appellant Sanwal alias Charya son of Rana Muhammad Ishaq was tried by learned Judge Anti-Terrorism Court No.VI, Karachi in Special cases No.390(III) of 2015, 318(III) of 2015 and 319(III) of 2015 for offences under Sections 302/34 PPC, 4/5 Explosive Substance Act read with Section 7 ATA, 1997 and Section 23(1)A- Sindh Arms Act, 2013 respectively. On the conclusion of trial vide Judgment dated 17.10.2017 appellant was convicted and sentenced as under:-

1. Accused Sanwal alias Charya s/o Rana Muhammad Ishaque is convicted u/s 7(1)(a) ATA, 1997, r/w section 302(b) PPC and he is awarded death sentence, to be hanged till his death, with compensation of Rs.200,000/- (Two Lacs) to be paid to the legal heirs of the victim.

2. Accused Sanwal alias Charya s/o Rana Muhammad Ishaque is also convicted u/s 4/5 explosive substance act 1908, r/w section 6(2)(ee) and punishable u/s 7(a)(ff) of Anti-Terrorism Act 1997 & 7 (2) of Anti-Terrorism Act 1997 and he is sentenced to undergo Rigorous Imprisonment 14 years and forfeiture of his property.

3. Accused Sanwal alias Charya s/o Rana Muhammad Ishaque is also convicted u/s 23(1)(A) Sindh Arms Act, 2013 and he is sentenced to undergo for R.I 07 years and with fine of Rs.10,000/- and in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months.

All the sentences were ordered to run concurrently. Death sentence awarded to the appellant was subject to the confirmation of this Court and trial Court has made reference in terms of Section 374 Cr.P.C. Appellant preferred appeal against his conviction and sentence through the Superintendent Central Prison, Karachi. Later on Mr. Qadir Hussain Khan, advocate filed power on behalf of appellant.

2. Brief facts of the prosecution case are that the F.I.R. was lodged by Mst. Tahseen Fatima alleging therein that she is a house wife and residing in House No.A/299, Block H, North Nazimabad, Karachi and belongs to Shia sect. She was present at her house, at about 2145 hours she was informed by Jinnah Hospital over mobile phone that her husband had been shot dead by unknown persons and his dead body was lying at Jinnah Hospital, Karachi. After receipt of such information, complainant proceeded to the mortuary of Jinnah Hospital, where she found dead body of her husband who was working in Summit Bank. Complainant further came to know that while her husband was returned from bank to the home at 2100 hours some person/persons had killed him by firing at his head. F.I.R of the incident was lodged vide Crime No.259/2012 for offences under sections 302/34 PPC. Investigation was entrusted to PI/SIO Muhammad Riaz. Postmortem examination of deceased was conducted. Blood stained cloths were sealed. Mushirnama of the blood stained cloths was prepared. Motorcycle No.KBD-5173 and one helmet of the deceased were also secured and sealed by ASI Tariq Mehmood. Mushirnama of place of vardat was also prepared and photographs of the deceased and place of incident were taken. Investigation officer recorded 161 Cr.P.C statements of the PWs. On 10.10.2012 I.O sent blood stained cloths of the deceased and empties to the chemical examiner for chemical analysis/report. It is stated that on 10.7.2015 Inspector Sajjad Ali, interrogated the accused Sanwal alias Charya who disclosed his involvement in various crimes of different police stations. Accused admitted his guilt for committing murder of the deceased in this case. Thereafter, appellant was formally arrested in the instant case/ crime. On the conclusion of the investigation challan was submitted against accused Sanwal alias Charya as well as against co-accused Rohan Ali alias Bhatti son of Mubarak Ali and Rashid Qadri son of unknown.

3. Under the above referred sections, learned Judge ATC-III Karachi ordered for joint trial of all the cases in terms of section 21M of the Anti-Terrorism Act, 1997. Charge was framed against accused Sanwal alias Charya to which he pleaded not guilty and claimed to be tried.

4. In order to prove its case, prosecution examined 11 PWs. Thereafter prosecution side was closed.

5. Statement of accused was recorded under section 342, Cr.PC at Ex-26. Accused claimed false implication in this case and denied all the prosecution allegations.

6. Learned trial Court after hearing the learned counsel for the parties and assessment of evidence convicted and sentenced the appellant to death as stated above, hence instant appeal is filed.

7. Mr. Qadir Hussain, advocate for the appellant, at the very outset, argued that trial Court had failed to record statement of the accused under Section 342 Cr.P.C in accordance with law. Mr. Qadir Hussain, advocate for the appellant referred to the page No.27 of the judgment of the trial Court and argued that the trial Court had relied upon the FSL report Ex:24 and report Ex:20/E but such incriminating pieces of evidence were not put to the accused in his statement recorded under Section 342 Cr.P.C. It is argued that trial Court was duty bound to put all the incriminating pieces of evidence to the accused in the statement recorded under Section 342 Cr.PC for explanation but omission has been caused by the trial Court and prayed for remand of case and decision on merits.

8. Mr. Muhammad Iqbal Awan, A.P.G. conceded to the contentions raised by the learned Advocate for the appellant and admits that Ex:20/E relates to the forensic report with regard to one 30 bore crime empty. He has also referred to the Ex:24/X, it is the report of the ballistic expert with regard to the pistol used in the crime. Learned D.P.G. recorded no objection, in case, case is remanded back for recording statement of accused u/s 342 Cr.P.C afresh.

9. After hearing learned counsel for the parties we have perused the statement of the accused recorded under section 342 Cr.P.C at Ex:26 and relevant record. The contentions raised by learned Advocate for the appellant that material incriminating pieces of evidence were not put to the accused is correct. There is no mention of the report produced before the trial Court such as Ex:20/E and Ex:24/X in statement of accused recorded u/s 342 Cr.P.C. We have also perused the judgment of the trial Court in which trial Court has relied upon the FSL report Ex:24/X and report Ex:20/E and based conviction. Relevant portion of the judgment of the trial Court is reproduced as under:-

On the analysis of the material available on record, it is crystal clear that accused had strong knowledge regarding the arms and ammunitions including hand grenade, as it was duly concealed by himself. Record reveals that a crime empty of 30 bore was secured by ASI Tariq Mehmood on 10.10.2012 without any delay and the same crime empty of 30 bore, after recovery/production by the present accused on his own willing, sent along with pistol No.CAG-29502, recovered by the police on the pointing out by accused, including other arms and ammunition, was sent to FSL with two other weapons. The examination report of FSL, clearly shows that one 30 bore crime empty was “fired” with the said pistol No.CAG-29502 and such report has been found similar with the fact that the major points i.e striker pin marks, breech face, which is against the accused and such evidence is much material to involvement of the accused to connect with the commission of offence/murder of deceased.

[S. 27B. Conviction on the basis of electronic or forensic evidence etc.-- Notwithstanding anything contained in this act or Qanun-e-Shahadat, 1984 (P.O No.10 of 1984) or any other law for the time being in force, a person accused of an offence under this act may be convicted on the basis of electronic or forensic evidence or such other evidence that may have become available because of modern devices or techniques referred to in Article 164 of the Qanun-e-Shahadat, 1984 (P.O No.10 of 1984).

By the above reference it may be noted that the FSL report (Ex:24/X & Ex:23/F) and BD report (Ex:17/D), which establishes his expertise using modern techniques as also referred in the section 27-B ATA, 1997. Conclusively, the reports of FSL and evidence of the BDU Experts falls within the vast definition of 27-B ATA, 1997.

10. It is settled position of the law that all the incriminating pieces of evidence arte to be put to the accused for his explanation/reply. No conviction can be based upon those pieces of evidence which were not put to the accused at the time of recording of his statement under section 342 Cr.P.C. In the case of MUHAMMAD NAWAZ and others Versus The STATE AND OTHERS (2016 SCMR 267) Honourable Supreme Court of Pakistan has observed as under:-

“………….While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence.”

11. In the view of above, there is no occasion for going into the factual aspects of this case as the reports produced before the trial court at Ex.20/E and Ex.24/X were not put to the accused in his statement under section 342, Cr.PC for his explanation. It amounts to denial of such opportunity to the accused and defeats the ends of justice. Failure to comply with this mandatory requirement by the trial court vitiates the trial. The case in hand is a case of murder, entailing a sentence of death and we have truly been shocked by the cursory and casual manner in which the learned trial court had handled the matter of recording of the accused’s statement under section 342, Cr.PC which statement is completely shorn of the necessary details which were required to put to accused. It goes without saying that the omission on the part of the learned trial court mentioned above was not merely an irregularity curable under section 537, Cr.PC but the same was a downright illegality which had vitiated the appellant’s conviction and sentence recorded by the trial court.

12. In the view of above, conviction and sentence recorded by the trial court vide judgment dated 17.10.2017 are set aside; case is remanded back to the trial court for recording the statement of accused under Section 342 Cr.P.C afresh in the light of the observations recorded by this Court. Thereafter, trial Court shall pass the judgment within (02) months strictly in accordance with law. Reference No.09/2017 for confirmation of death sentence is answered in negative. The appellant Sanwal alias Charya shall be produced before the trial Court on 08.9.2018. Trial Court shall issue notice to the complainant well before next date.

12. Special Criminal Anti-Terrorism Appeal No.245 of 2017 is disposed of in the above terms.

J U D G E

J U D G E

Ayaz Gul/PA