Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. D – 206 of 2016

Conf. Case No. D – 08 of 2016

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of hearing : 31.10.2019.

Mr. Ubedullah Ghoto, Advocate for appellant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Munir Ahmed Shaikh, appellant was tried by learned Additional Sessions Judge, Ubauro in Sessions Case No.456/2012 for offences under Sections 302, 324, 393, 337-H(2), PPC. After regular trial, vide judgment dated 20.10.2016, appellant was convicted under Section 302(b), PPC as Ta’zir and sentenced to death. Appellant was directed to pay compensation of Rs.2,00,000/- (two lac) to be paid to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. In case of failure thereof, he was ordered to suffer S.I for six months. However, trial Court came to the conclusion that offences under Sections 324 and 337-H(2), PPC are not proved. Trial Court has failed to mention that accused is acquitted in Sections 324 and 337-H(2), PPC. However, trial Court has made Reference to this Court for confirmation of death sentence as required under Section 374, Cr.P.C.

2. Appellant preferred the Appeal before this Court against impugned judgment.

3. We intend to decide the aforesaid Appeal as well as Confirmation Reference made by the trial Court through this common judgment.

4. Mr. Ubedullah Ghoto, learned counsel for the appellant at the very outset contended that trial Court has mainly relied upon the report of the ballistic expert in the judgment, but said report has not been produced in the evidence. It is further contended that all the incriminating pieces of the evidence have not put to the accused in his statement recorded under Section 342, Cr.P.C for his explanation. He has further contended that trial Court had also failed to pass the judgment as provided under Section 367, Cr.P.C, and prayed for remand of the case, so that fair opportunity may be provided to the appellant to defend himself before the trial Court.

5. Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General conceded to the contention of learned defence counsel that trial Court has relied upon the report of FSL, but it has not been produced in the evidence. Learned State Counsel has further conceded that all the incriminating pieces of the evidence were not put to the accused by the trial Court in the statement recorded under Section 342, Cr.P.C. Additional P.G further submitted that trial Court has held that prosecution has failed to prove the case against the appellant so far Sections 324 and 337-H(2), PPC are concerned, but its effect has not been mentioned in the judgment. Learned Additional P.G recorded no objection, for remand of the case to the trial Court for proceeding further in accordance with law.

6. We have carefully heard the learned counsel for the parties and perused the relevant record.

7. In order to appreciate the contentions of the learned counsel for the parties, for the sake of ready reference, the statement of accused recorded by the trial Court under Section 342, Cr.P.C is reproduced as under:

IN THE COURT OF ADDITIONAL SESSIONS JUDGE UBAURO

S.C.NO.15 OF 2016

The State

Versus

Munir Ahmed Shaikh and others.

STATEMENT OF ACCUSED U/S 342 Cr.P.C.

Dated: 01.09.2016

My name is: Munir Ahmed F/Name: Muhammad Hassan

Religion (Islam) Caste: Shaikh

Age about 20 years Occupation: Student

Residence: Village Gul Hassan Shaikh Tal: Daharki District: Ghotki

Q.No.1 You have heard the evidence. It has come in evidence that on 03.07.2012 at about 1800/1830 hours, you along with absconding accused Sadam fired with pistols with intention to kill deceased Barkat Ali when he was going on motorcycle at Link Road Rounti near village Abdul Ghafoor Mahar and caused one fire arm injuries on right side of face in front of lower part of ear and also on left cheek which resulted in his death on spot. What you have to say?

Ans. It is false.

Q.No.2 it has also come in evidence that on the same day, time and place you along with above named absconding accused, and two unknown accused persons with pistols, also fired on the complainant and PWs Amir Bux, and Arbab when they were going on motorcycles with intention to kill them, but the fires missed as their motorcycles fell down. What you have to say?

Ans. It is false.

Q.No.3 It has also come in evidence that on the same day, time and place you along with above named absconding accused, and two unknown accused persons with pistols, after causing fire arm injury to the deceased and firing on the complainant and PWs you also fired in air for causing harassment to the complainant and PWs. What you have to say?

Ans. It is false.

Q.No.4 It has also come in evidence that on 08.07.2012 Inspector Mukhtiar Ahmed Mazari arrested you and recovered one 30 bore pistol used by you in the commission of above offence. What you have to say?

Ans. It is false. Pistol was foisted by the said Inspector at the instance of complainant.

Q.No.5. It has further come in evidence that your sister Mst; Zulekhan had lodged FIR No.141/2012 at PS Ubauro against you, wherein she alleged that you has declared her “Kari” with deceased Barkat Ali. What you have to say?

Ans. It is false. I have be acquitted the said case.

Q.No.6. It has further come on record that such articles recovered from the spot were sent to Chemical Examiner Rohri, for his opinion and which report is in position. What you have to say?

Ans. It is managed the I.O. in collusion of complainant.

Q.No.7. Why the PWs have deposed against you?

Ans. PWs are close relatives of complainant.

Q.No.8. Do you want to examine yourself on oath?

Ans. No Sir.

Q.No.9. Do you want to examine any witness in your defence?

Ans. No Sir.

Q.No.10. Have you to say anything else?

Ans. I am innocent. I have not committed any offence. Dispute over matrimonial affairs. Complainant lodged false FIR against me. I pray for justice.

Sd/-

(Malik Muhammad Akhtar)

Additional Sessions Judge, Ubauro.

Certificate

It is certified that statement has been recorded in my presence and hearing. It contains true and full account of what has been stated by accused.

Sd/-

Additional Sessions Judge

Ubauro

Trial Court in the impugned judgment has relied upon the report of Ballistic Expert while discussing point No.3. The report of FSL was available in the R & Ps, but it was not produced in evidence by the Investigation Officer. Trial Court conducted trial in a casual manner. We have noticed that all incriminating pieces of the evidence relied upon by the trial Court, in the impugned judgment, were not put to the accused in his statement recorded under Section 342, Cr.P.C for his explanation / reply. Such omission is not merely an irregularity but it had vitiated the appellant’s conviction and sentence recorded by the trial Court as held by the Hon’ble Supreme Court in an unreported judgment in Criminal Appeal No.292 of 2009 dated 28.10.2010 in the case of Muhammad Hassan v. The State. Relevant portion is reproduced as under:

“ In view of the order we propose to pass there is no occasion for going into the factual aspects of this case and it may suffice to observe that the case of the prosecution against the appellant was based upon prompt lodging of the F.I.R., statements of three eyewitnesses, medical evidence, motive, recovery of weapon of offence and a report of the Forensic Science Laboratory regarding matching of some of the crime-empties with the firearm allegedly recovered from the appellant’s possession during the investigation but we have found that except for the alleged recovery of Kalashnikov from the appellant’s possession during the investigation no other piece of evidence being relied upon by the prosecution against the appellant at the time of recording of his statement under section 342, Cr.P.C.

It is by now a settled principle of criminal law that each and every material piece of evidence being relied upon by the prosecution against an accused person must be put to him at the time of recording of his statement under section 342, Cr.P.C so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused person defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a 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 appellant’s statement under Section 342, Cr.P.C which statement is completely shorn of the necessary details which were required to put to the appellant. We have been equally dismayed by the fact that even the learned Judge of the learned Division Bench of the High Court of Sindh deciding the appellant’s appeal have failed to take notice of such a glaring illegality committed by the trial Court. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely an irregularity which had vitiated the appellant’s conviction and sentence recorded. ”

8. We have found that impugned judgment has not been passed by the trial Court according to Section 367, Cr.P.C. Trial Court, for an offence under Section 302(b), PPC sentenced the appellant to death. So far Sections 324 and 337-H(2), PPC are concerned, trial Court came to the conclusion that prosecution has failed to establish these sections, then trial Court was under the legal obligation to record acquittal in these sections, but trial Court had omitted to do so.

9. Hence, keeping in view the above facts and circumstances of the case, by consent, Criminal Jail Appeal No. D-206/2016 is partly allowed. Conviction and sentence recorded by the trial Court are set aside. Case is remanded to the trial Court for recording of the statement of accused under Section 342, Cr.P.C afresh by putting all the incriminating pieces of the evidence to accused for explanation / reply. After hearing learned counsel for the parties, trial Court is directed to pass a fresh judgment in accordance with law. Trial Court is further directed to complete the trial within three (03) months. So far the Confirmation Reference is concerned, in the view above, it is answered in negative.

10. Criminal Jail Appeal as well as Confirmation Reference are accordingly disposed of.

11. Before parting with this judgment, it is mentioned that learned advocate for the appellant pointed out in the end, that there is compromise between the parties and parties intend to file compromise application before the trial Court. It may be observed that parties would be at liberty to file the compromise application before the trial Court, the same shall be decided in accordance with law.

J U D G E

Abdul Basit