Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Jail Appeal No. D – 60 of 2019
Conf. Case No. D – 02 of 2019
Before :
Mr. Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
Date of hearing : 27.11.2019.
Mr. Athar Abbas Solangi,
Advocate for appellant Abdul Ghaffar alias Ghaffar.
Mr. Muhammad Hamzo
Buriro, Advocate for appellants Imtiaz Ali, Sagheer Ahmed and Abid Hussain.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J. – Abdul Ghaffar alias Ghaffar, Imtiaz Ali,
Sagheer Ahmed and Abid Hussain, appellants were tried by learned Judge, Anti-Terrorism
Court, Khairpur in Special Case No.52/2014 for offences under Sections 395,
396, 353, 427, 148, 149, PPC read with Section 7, ATA, 1997. After regular
trial, vide judgment dated 23.04.2019, appellants were convicted under Section 148,
PPC and sentenced to three years R.I and to pay the fine of Rs.10,000/- (ten
thousand) each. In case of the default in the payment of the fine, they have
been ordered to suffer R.I for two months each. Appellants have also been
convicted under Section 395 read with Section 149, PPC and sentenced to
imprisonment for life; their property has also been forfeited to the State.
Appellants have also been convicted for committing murders of deceased persons
namely Seengar Ali Wassan, Ghulam Qambar Chandio and PC Shahzado Lanjwani for
offence under Section 396 read with Section 149, PPC and sentenced to death on
three counts. They have been ordered to pay compensation as required under Section
544-A, Cr.P.C to the legal heirs of the deceased of Rs.5,00,000/- (five lac)
each in lieu of the above mentioned deceased, total Rs.20,00,000/- (twenty lac).
In case of the default in payment thereof, appellants have been ordered to
suffer R.I for six months each. Appellants have also been convicted under
Section 353 read with Section 149, PPC and sentenced to two years R.I. They
have been convicted for offence under Section 427 read with Section 149, PPC
and sentenced to two years R.I and to pay the fine of Rs.7,000/- (seven
thousand). In case of the default in the payment of the fine, they have been
ordered to suffer imprisonment for three months. Appellants have also been
convicted under Section 7, ATA, 1997 and sentenced to death on three counts.
They have further been directed to pay the fine of Rs.1,00,000/- (one lac)
each. In case of the default thereof, they have been ordered to suffer R.I for
six months each. However, death sentence was subject to the confirmation by
this Court. All the sentences have been ordered to run concurrently. Appellants
have been extended benefit of Section 382-B, Cr.P.C. Trial Court has made
Reference to this Court for confirmation of death sentence as required under
Section 374, Cr.P.C. Appellants preferred Appeal through Superintendent,
Central Prison, Sukkur. It was admitted for regular hearing and was tagged with
Confirmation Reference made by the trial Court.
2. Brief
facts of the prosecution case, as reflected in the judgment of the trial Court,
are as under:
“The brief facts of prosecution case are that on 02.01.2014 at 1730
hours, complainant Illahi Bux Lanjwani lodged the instant FIR at PS-Kotdiji,
alleging therein that he is private security guard at Khairpur Sugar
Mills, Naru Dhoro and in the Sugar Mill Syed Hazrat Shah is posted as head
cashier and Seengar Ali was posted as assistant cashier. His brother PC
Shahzado Khan was deputed at the picket of Sugar Mill for protection.
It is also mentioned in FIR that on
30-12-2013, head cashier Syed Hazrat Shah had to draw the amount of Sugar mill
from MCB-Khairpur, on which Assistant
Cashier-Seengar Ali and PC-Shahzado Khan
for protection after having been boarded in one blue coloured Cuore car bearing No.AUG-357 alongwith
Driver-Ghulam Qambar and another white
coloured Indus Corolla car bearing No.AC-3425, complainant, head cashier Syed
Hazrat Shah and security guard officer
Nazir Ahmed and his relatives Iqbal Hussain and Ghulam @ Nabi Bux, who are also working in such sugar
mill, after boarding in the car,
left Khairpur Sugar Mill at about 0800 hours and reached at Khairpur, where head cashier Syed Hazrat Shah encashed passed the cheque
bearing No.4222127 dated 30-12-2013 of an amount of Rs:25 Lac. The head cashier Syed Hazrat Shah had some work in Khairpur,
therefore, such amount of Rs:25 Lac was handed over to Assistant Cashier-Seengar Ali and
directed them to take the amount and
proceed towards Sugar Mill and
he will come later on, to which Assistant Cashier-Seengar Ali alongwith
Driver-Ghulam Qambar and brother of
complainant namely PC-Shahzado after boarding on same Cuore car bearing No.AUF-357 alongwith cash proceeded towards sugar mill, within few minutes, they all who came in another same car, after boarding on another same car also proceeded behind them towards Khairpur Sugar Mill Naru Dhoro and they also reached near the car
of Seengar Ali after crossing the PRTC. Both the cars were proceeding
together. In the meantime, a black coloured
Toyota Corolla car came behind their
cars and cross them, in which five persons were sitting, out of them,
four were with open faces and one was with muffled face. They while crossing, watched them. The complainant party found them suspicious, who crossed their
cars and then the car, after crossing
their cars reached at Kanasra Chowk situated in village Sohu Kanasra,
the accused, reduced the speed of their car due to speed breaker and parked the car on the side. The car, in
which the cash amount was lying and his brother Shahzado was seated in the front seat also reached
at speed breaker of Kanasra Chowk at about 1030 hours in the morning time.
Meanwhile, four opened faces accused alighted from their car duly armed with
KKs came infront of their car and signaled the car driver Ghulam Qambar to
stop. Due to fear, the driver ignored the caution and did not stop the car.
PC-Shahzado Khan, who was present in the car to whom while seeing in police
uniform, the above
four accused made direct firing upon the car with intention to rob the
cash amount on the show of force of weapons. Due to such firing, his brother
PC-Shahzado Khan by performing his lawful duty, retailed and made firing upon accused in self protection,
on which the accused started indiscriminate firing. Such firing was continued for about 5/6 minutes then they
heard cries of Assistant Cashier-Seengar Ali, Driver-Ghulam Qambar and
PC-Shahzado from their car that they received the firearm injuries, then the firing was stopped and above
said four accused went near their car
and snatched government SMG rifle alongwith its magazines and bullets from PC-Shahzado as well as robbed cash amount of Rs:25 Lac and mobile phone from
cashier. Thereafter, accused made firing in order to create
terror and on the fire shots HC-Shafi Muhammad, PC-Lutufullah and DPC-Gulsher
of PP-Sohu Kanasra also arrived in
government mobile. On seeing the police, the accused after boarding on their own car by making firing for spreading terror, fled away towards western
side road leading towards
Paneero Bridge with their respective weapons.
The number of the car could not be
seen by them, while the accused and their car were clearly seen and would be
identified if seen again. In the
meantime, many other villagers came running then they alighted from
their car and saw that his
brother PC-Shahzado Khan sustained one firearm injury at his left side nipple,
left shoulder and right feet heal, which were through and through and he by
performing his official duty during encounter with criminals embraced Shahadat. They also saw the Assistant Cashier Seengar
Ali, who had sustained firearm injuries on his right shoulder, right
side of neck, which were also through
and through and was lying dead
then they saw private car diver Ghulam Qambar, who also received firearm injuries at head, which was through from back side, left arm through and through
and the blood was oozing and was
lying dead. The windscreen of their car, mirrors of driver side window and back
side window mirror were smashed due to firing, there were many holes of fires on
different sides of the car. From his brother PC-Shahzado, one Government SMG, four
magazines, 120 bullets, Q-Mobile phone, from Assistant Cashier-Seengar
Ali Wasan, one mobile phone of Nokia company and from driver-Ghulam
Qambar, one Q-Mobile phone and the cash
amount of Rs:25 Lac,
which were drawn by head cashier Hazrat Shah
of sugar mill from MCB-Khairpur, were robbed away by accused. In the meantime,
police of PS-Kotdiji also arrived in government vehicle then they shifted the dead bodies at Taluka hospital Kotdiji for their postmortem and after getting conducted
their postmortems, the dead bodies were brought by them to their village and after their burial, they remained present in
condolence. After passing third day of death on the directives of Sugar Mill
Administration, he went to PS and made complaint that five unidentified accused
with intention to commit dacoity of cash, made firing and in such firing, his
brother PC-Shahzado Khan aged about 40/41 years, while performing his official
duty and protecting themselves embraced Shahadat by firing of the accused, whose above stated government arms and ammunition
and his mobile phone were snatched by
accused and the accused also committed the murders of Assistant Cashier of sugar
mill Khairpur at Naru Dhoro namely
Seengar Ali aged about 35/36 years and Driver-Ghulam Qambar aged
about 29/30 years and caused damage to
their car and robbed away the
cash amount of Rs:25 Lac of Sugar mill as well as mobile phones of
deceased. The accused committed the
murders of above said deceased, made indiscriminate firing to spread terror.
All the five accused would be identified, if seen again.”
3. After
usual investigation, challan was submitted against the accused under Section
512, Cr.P.C. However, on the basis of further statement of the complainant,
supplementary challan was submitted before learned Judge, Anti-Terrorism Court,
Khairpur against the accused for offences under Sections 395, 396, 353, 427,
148, 149, PPC read with Section 7, ATA, 1997.
4. Trial
Court framed the charge against the accused at Ex.05. Accused did not plead
guilty and claimed to be tried.
5. At
the trial prosecution examined nine (09) prosecution witnesses. Thereafter, prosecution
side was closed.
6. Statements
of the accused were recorded under Section 342, Cr.P.C, in which accused
claimed false implication in this case and denied the prosecution allegations.
Accused did not lead evidence in their defence and declined to give statement
on oath in disproof of prosecution allegations.
7. Trial
Court after hearing the learned counsel for the parties and assessment of the
evidence, vide judgment dated 23.04.2019, convicted and sentenced the appellants
to death, as stated above. Trial Court made Reference to this Court for
confirmation of death sentence.
8. M/s
Athar Abbas Solangi and Muhammad Hamzo Buriro, advocates appeared on behalf of
the appellants. At the very outset, Mr. Athar Abbas Solangi, advocate for
appellant Abdul Ghaffar alias Ghaffar argued that all the incriminating pieces
of the evidence were not put to the accused at the time of recording the
statements of accused under Section 342, Cr.P.C. He has referred to the
evidence of the complainant recorded before the trial Court, in which
complainant has stated that after the incident he came to know that present
appellants are confined at Police Station Pithoro. He went to Police Station
Pithoro along with the witnesses on 27.01.2014 and found the appellants
detained at the Police Station and he identified them to be the culprits of the
incident. Trial Court after recording the evidence, convicted and sentenced the
appellants to death mainly relying upon that piece of evidence, but
unfortunately said incriminating piece of evidence was not put to the accused
in their statements recorded under Section 342, Cr.P.C for their explanation.
For the sake of the convenience, statement of one of the accused recorded under
Section 342, Cr.P.C is reproduced as under:
EX. NO. 20.
IN THE COURT OF ANTI TERRORISM KHAIRPUR MIR’S.
SPECIAL CASE NO.52/2014.
The State.
Versus.
Ghaffar and others……………………………………………………Accused.
Offence under
sections:395,396,353,427,148,149-PPC
R/W Section 7 ATA, 1997.
Crime No.03/2014.
P.S-Kotdigi, Khairpur Mir’s .
STATEMENT OF ACCUSED UNDER SECTION 342 CR.P.C.
My name
is: Ghaffar
@ Abdul Ghaffar
Father’s
name is: Kamal Khan
Religion: Islam
Caste: Rind
Aged
about: 32 years
Occupation: Zamindar/Landlord
Residence: Village 78, Mori, Mirpurkhas
Examination of accused
Q.No.01. You have heard the prosecution story. It has come in evidence
on 30-12-2013 at about 1030 hours you alongwith co-accused Imtiaz Ali Mangi, Sagheer Ahmed Soomro, Abid Hussain
Shaikh and one unidentified duly armed
with deadly weapons,
being members of unlawful assembly and in prosecution of your common object; committed an act rioting
at Kanasro Paneero Bridge near Kansra
Chowk situated at link road from Khairpur towards Narudhoro, Deh Kanasra and also committed dacoity
from complainant party, on their resistance, committed the murders of Seengar Ali Wasan, Ghulam
Qambar Chandio and PC-Shahazado Khan
Lanjwani by making straight firing upon their car bearing registration NO.AUF-357 as postmortem reports
produced by the Dr. Akhtar Ahmed Sohu in evidence and taken away the cash amount of Rs:25 Lac, mobile
phones and official arms and ammunition
viz: 01 SMG rifle, 04 magazines & 120 live bullets and during such dacoity
assault and used criminal force upon PC-Shahzado Lanjwani, being a public servant, deterred him from
discharge of his lawful duty. What have you to say?
Answer:- No Sir, It is
false.
Q.No.02. It has
also come in
evidence that on 29-05-2014 at 0900 hours, you were arrested by police headed by SIO/Inspector
Muhammad Ameen Pathan, PS-“A”
Section, Khairpur Mir's, from Central Prison Mirpurkhas under the imaginary memo of arrest in presence of mashirs. What
have you to say?
Answer:- It is not denied.
Q.No.03. It has
come in the evidence
that the blood stained earth and last
worn clothes of deceased Seengar Ali Wasan, Ghulam Qambar Chandio and
PC-Shahazado Khan Lanjwani secured from
the place of Vardat and the same were sent to Chemical Examiner Sukkur at Rohri, for Expert Opinion and the
reports have tendered in evidence
in positive. What have you to say?
Answer:- The reports are
managed by prosecution.
Q.No.04. It has also been alleged by the
prosecution that on the above said date, time and
place you alongwith abovenamed co-accused and unidentified accused, while committing the said offences had created panic, terror and sense of insecurity in the mind of persons of the locality.
What have you to say?
Answer:- No Sir. No panic,
terror and sense of insecurity has been created.
Q.No.05. Why the PWs have deposed against
you?
Answer:- They all are
interested, closely related with each other.
Q.No.06. Do you
want to examine
yourself on oath?
Answer:- No Sir.
Q.No.07. Do you want to lead any defence
witness in your defence?
Answer:- No Sir.
Q.No.08. Have you any thing
else to say?
Answer:- I am innocent. I
have been falsely implicated in this false case. At the time of my implication
in this case the M.P.A Shafqat Ali Shah was in power, who has got implicated me
in this case over the dispute of landed property. I pray for justice.
Sd/-
(Inam Ali Malik)
Special Judge,
Anti-Terrorism Court, Khairpur Mir’s.
Dated: 10/04/2019
Certificate
Certified that the statement of
accused has been taken in my presence and hearings and that the record contains
a full and true account of the statement made by the accused.
Sd/-
We
have also carefully perused the statements of accused recorded under Section
342, Cr.P.C. Contention of learned counsel for the appellant is correct that no
such incriminating piece of evidence has been put to the accused for their explanation.
Relevant portion of incriminating piece of evidence of complainant is
reproduced as under:
“…………… On 27th January, 2014 we
came to know that some culprits have been arrested by the police and we went to
PS Pithoro. I alongwith witnesses namely Hazrat Shah, Muhammad Iqbal, Ghulam
Nabi, Nazeer Sheedi went to PS Pithoro where
4 accused were present there and I identified them as Abdul Ghaffar,
Sagheer Ahmed, Abid and Imtiaz. Inspector Muhammad Ameen Pathan was also
present there where I/O Muhammad Ameen Pathan recorded my further statement.
……………”
9. Additional
P.G concedes to this legal position that trial Court was legally bound to put
all the incriminating pieces of the evidence to the accused for his
explanation, but in this case omission is apparent on the record and it is not
curable under the law. In support of the contentions, reliance is placed upon
an unreported judgment in Criminal Appeal No.292 of 2009 dated
28.10.2010 in the case of Muhammad
Hassan v. The State, in which the Hon’ble Supreme Court has laid down
the following principle:
“3. 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 was put to the appellant at the time of recording of his statement
under section 342, Cr.PC.
4. 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.PC 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, Ct.PC 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
Judges of the Division Bench of the High Court of Sindh deciding the appellant’s appeal had 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 curable under section 537, Cr.PC but the same was a
downright illegality which had vitiated the appellant’s conviction and
sentence recorded and upheld by the learned Courts below.”
While
relying upon the above cited authority and looking to the evidence available on
the record and coming to the conclusion that incriminating piece of evidence on
which trial Court has based conviction was not put to the accused in the
statements recorded under Section 342, Cr.P.C. Relevant portion of impugned
judgment is also reproduced as under:
“…………… The incident took place in the
presence of the complainant and his solitary evidence cannot be discarded. No
malafide intention has been brought on record in the evidence of complainant
regarding involvement of all the present accused Abdul Ghaffar, Abid Hussain
Shaikh, Imtiaz Ali Magsi @ Bugti and Sagheer Ahmed Soomro @ Jatoi, who are
belonging to different castes i.e. Rind, Magsi, Soomro and Shaikh as well as different
districts viz: Mirpurkhas, Larkana and Sukkur and the complainant party
belonging to Lanjwani community resident of District Khairpur Mir’s and the
complainant has involved the present accused as he had already seen to all the
present accused at the time of commission of present incident, thereafter, when
he came to know that some culprits were arrested at PS-Pithoro, who admitted
their guilt for the commission of present offence then he alongwith PWs reached
at PS-Pithoro, where he also identified all the present accused.”
10. Therefore, conviction and sentence
recorded by the trial Court is not legally maintainable and illegality
committed by the trial Court is not curable. 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 appellants’ conviction and sentence
recorded by trial Court.
11. Therefore,
Criminal Jail Appeal No. D-60/2019 is partly allowed. Conviction and
sentence recorded by the trial Court are set aside. Case is remanded back
to the trial Court for recording the statement of accused afresh under Section
342, Cr.P.C by putting all the incriminating pieces of evidence to the accused
as highlighted above. Thereafter, trial Court shall provide fair opportunity to
the advocates for the appellants as well as Prosecution and fresh judgment
shall be passed in accordance with law. So far Confirmation Reference is
concerned, it is answered in NEGATIVE.
12. In
the view of above, Criminal Jail Appeal as well as Confirmation Reference are
accordingly disposed of.
J U D G E
J U D G E
Abdul Basit