Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. S–33 of 2006

 

 

 

Date of hearing         :           27.01.2020.

 

 

Mr. Nisar Ahmed Bhanbhro, Advocate for appellants.

Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J.–  Imam Ali and Jhando Khan were tried by learned Additional Sessions Judge Naushehro Feroze in Sessions case No. 28 of 2004. After regular trial vide Judgment dated 30.03.2006, both appellants were convicted under section 302 (b) PPC as Tazir to the imprisonment for life and they were directed to pay compensation of Rs. 50,000/- each to be paid to the legal heirs of deceased Muhammad Qasim in terms of Section 544-A Cr.P.C, in case of default in payment of compensation, they were ordered to suffer RI for two years more. Both appellants were also convicted and sentenced for causing injuries to the complainant Muhammad Umer, P.Ws Aijaz and Mst. Kareeman as under:-

 

(i)            To suffer R.I for one year and pay Daman of Rs.5000/- for the offence U/S 337-A(i) PPC.

 

(ii)          To suffer R.I for one year & pay Daman of Rs. 2000/- for offence U/S 337-F(i) PPC.

 

(iii)         To suffer R.I for one year & pay Daman of Rs.2000/- for offence U/S 337-L(2) PPC.

 

(iv)         To suffer R.I for three years and pay Daman of Rs.10,000/- for offence U/S 337-F(v) PPC.

 

(v)          To suffer R.I for three years and pay Daman of Rs.10,000/- for offence U/S 337-F(vi) PPC.

 

                        Appellants were extended benefit of section 382-B Cr.P.C and case of absconding accused Rafique and Khadim Hussain alias Muhammad Mithal was kept on dormant file. Both appellants filed this Jail Appeal, through Superintendent Central  Prison Sukkur. It was admitted to regular hearing.

 

2.                     Brief facts of the prosecution case, as reflected in the Judgment of trial Court are reproduced as under :-

 

            “ The prosecution story in brief is that on 14.12.2003 at 2300 hours complainant Muhammad Umer Solangi lodged report at Police station Bhagodero, stating that he is Hari of Haji Siddique and Piyaro bycaste Mashori. Some days prior to incident, cotton pods were taken away from the land of Piyaro and he had asked Imam Ali for faisla, which had annoyed Imam Ali and others. Complainant, accused Imam Ali and others are residing in one and same village. On the day of incident, complainant was going through street to his house, when at 6.00 pm, he saw accused Imam Ali, Jhando, Rafique and Muhammad Mithal alias Khadim, all sons of Andal Solangi were armed with latheis, they abused him. Accused Imam Ali caused lathi blows to complainant on his head, arm, leg and back. On the cries, his sons Muhammad Qasim, Aijaz and wife Mst. Kareema came running to rescue him. Accused Imam Ali caused lathi blows to Mst. Kareema and accused Rafique caused lathi blows to Muhammad Qasim while accused Jhando caused lathi blows to P.W Aijaz. Accused Muhammad Mithal also caused injuries to complainant and P.Ws. In the meantime people from vicinity came on the commotion, who intervened and rescued them. Thereafter, accused went away while abusing. Complainant took his sons and wife to Basic Health Unit Darbelo and thereafter lodged report with Police Station Bhagodero.”

3.         After usual investigation, challan was submitted against the accused under sections 302, 337-A(ii), 337-F(ii), 34 PPC.

4.         Trial Court framed the charge against the accused at Ex.02. Accused did not plead guilty and claimed to be tried.

5.         At the trial, prosecution examined eleven (11) 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 30.03.2006, convicted and sentenced the appellants, as stated above.

8.         Mr. Nisar Ahmed Bhanbhro, Advocate for appellants argued that trial Court had recorded statements of accused under section 342 Cr.P.C in stereo type manner. All the incriminating pieces of evidence were not put to the accused for their explanation/reply. He has further submitted that motive was important piece of evidence in this case but in the statements of accused recorded under section 342 Cr.P.C question with regard to motive was not put to the accused but trial Court has relied upon the piece of motive for conviction. Lastly, it is argued that case may be remanded back for recording statements of accused afresh by providing fair opportunity to the appellants for explanation/reply to the all incriminating pieces of evidence came on record against them.

9.                     Mr. Shafi Muhammad Mahar, D.P.G concedes to contention of defense counsel that all the incriminating pieces of evidence were not put to accused in the statements recorded under section 342 Cr.P.C for their explanation and recorded no objection for remand of case to trial Court for recording statement of accused afresh.

10.                   Record reflects that trial Court has convicted and sentenced the appellants as referred to above while relying upon motive for the commission of offence but in the statements under section 342 Cr.P.C no question regarding motive was put to the accused for their explanation/reply. For the sake of the convenience, statement of one of the accused recorded under Section 342, Cr.P.C is reproduced as under:

 “  IN THE COURT OF ADDITIONAL SESSIONS JUDGE NAUSHEHRO FEROZE

Ex.18

Sessions Case No: 28/2004.

THE STATE

VERSUS

Imam Ali and others           ……….   ACCUSED

 

 

 

 

Offence U/S 302 PPC.

 

Name:                                    Imam Ali

Father’s name.                     Andal

Religion.                               Islam

Caste:                                    Solangi.

Age about:                            35 years

Occupation:                         cultivation.

Residence:                     Village Manik Solangi taluka Kandiaro district N.Feroze.

 

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

 

Q.No: 1. You have heard the prosecution evidence, wherein it is alleged that you on 14.12.2003 at about 6.00 p.m in the common street near Mosque, in village Manik Solangi, along with absconding accused Rafique and Muhammad Mithal Solangi, duly armed with latheis, in furtherance of your common intention caused lathi injuries to complainant Muhammad Umar, PWs Qasim, Aijaz and Mst. Kareema with intention to cause their murder, subsequently injured Qasim succumbed to the injuries and died. What have to you to say ?

Ans:        No Sir it is false.

 

Q.No.2.  It has further come on record through medical evidence wherein it has been confirmed that the abovesaid injured persons had sustained the injuries and deceased Qasim succumbed to the injuies and died unantrual death, what you have to say ?

 

Ans.        I do not know about that

 

Q.No: 3  It has also come on record that on 09.01.2004 at 1500 hours, you were arrested by Police party headed by SIP Din Muhammad Rind of P.S Tharu Shah from Bus stop Darbelo and also on the same day at about 1700 hours, you produced lathies before them in presence of mashirs Wali Muhammad and Ali Muhammad. What you have to say ?

 

Ans.        No sir, it is false. Latheis have been foisted upon me.

 

Q.No.4.  Do you claim the above recovered property ?

Ans.        No sir.

 

Q.No.5:  Why P.Ws have deposed against you?

 

Ans:        Complainant was annoyed with me over the dispute of plot, hence he implicated me falsely.

 

Q.No.6:  Do you want to examine yourself on oath ?

Ans:        No Sir.

 

Q. No: 7. Do you want to examine any witness in your defense ?

Ans:        No Sir.

 

Q. No: 8.Have you anything else to say?

Ans:        I am innocent and have been implicated falsely, pray for justice.

 

Sd/-9.3.2006

dditional Sessions Judge

Naushehro Feroze.

 

CERTIFICATE

 

                Certified that the above statement has been taken in my presence and hearing and record contains                full and true account stated by the accused.

 

Sd/-9.3.2006

Additional Sessions Judge

Naushehro Feroze.”

 

 

11.                   I have perused the statements of accused recorded U/S 342 Cr.P.C in which question regarding motive has not been put to the accused for their explanation but this incriminating piece of evidence came on record in the evidence of complainant. Relevant part of the evidence of complainant regarding motive is reproduced as under :-

 “…………… On 14th December, 2003, at about 6.00 pm I am cultivating the land of Haji Siddique and Piyaro Mashori. I was suspecting the accused Imam Ali, Jhando, Khadim Hussain and Raza Muhammad for the theft of cotton crop, to which, they were annoyed with me. On the day of incident, it was evening time, when I was going to my house through street and reached near to my house where accused Imam Ali armed with Danda, accused Jhando was with danda, so also accused Khadim Hussain and Raza Muhammad armed with Danda appeared, abused me and attacked at me with Danda………….”

12.                   As in this case, all incriminating pieces of evidence were not put to the accused for their explanation while relying upon said pieces of evidence, conviction has been recorded against the appellants, therefore, there is no occasion for going into the factual aspects of the case. 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 I 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.PC which statements are completely shorn of the necessary details which were required to put to the appellants. 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. I am supported in my view by unreported judgment of the Hon’ble Supreme Court in Criminal Appeal No.292 of 2009, in the case of Muhammad Hassan v. The State dated 28.10.2010.

13.                   For the above stated reasons, conviction and sentence recorded by the trial Court vide judgment dated 30.03.2006 are set aside. Appeal is partly allowed. Case is remanded back to learned Sessions Judge Naushehro Feroze for hearing himself or he may transfer it to some Additional Sessions Judge for recording of the statement of accused under section 342 Cr.P.C afresh in accordance with law, by putting all the incriminating pieces of evidence to the accused for explanation as highlighted above. Thereafter, the trial Court shall decide the case after hearing the parties, in accordance with law within two (02) months under intimation to this Court. Appellants Imam Ali and Jhando Khan are present on bail, they shall remain on bail and will appear before learned Sessions Judge, Naushehro Feroze on 17.02.2020.

14.                   In view of above, criminal Jail Appeal No.S-33 of 2006 is accordingly disposed of in the above terms.

 

 

 

J U D G E

 

Irfan/PA

 

 

 

 

 

 

 

 

 

and upheld by the learned Courts below.”

 

Mr. Shafi Muhammad Mahar D.P.G conceded to the contentions raised by Mr. Bhanbhro and argued that in the statement of accused recorded by the trial Court under section 342 Cr.P.C, no question regarding motive has been put up by the trial Court. D.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 complainant Muhammad Umer in his evidence has categorically and specifically assigned the role to each accused, so it would be pertinent to reproduce here the relevant pieces of his evidence as under :

                “ Accused Imam Ali & Jhando gave me blows with Danda at my arm & head. Accused Raza Muhammad & Mithal also gave me blows at my other parts of the body. Accused Imam Ali gave Danda blows to my son Muhammad Qasim at his left temple,while accused Jhando gave him blows with Danda at other parts of his body. My son fell down with bleeding. Accused Raza Muhammad then gave Danda blows to Muhammad Qasim at his abdomen and other parts of body. All the four accused again repeated the blows to Muhammad Qasim at various pats of the body. Accused Imam Ali & Jhando gave danda blows to my son P.W Aijaz and wife Mst. Kareema.”

                                Thereafter P.W aijaz at Exh.07 has deposed regarding the role assigned to each accused, as under :-

                                “ It was 6.00 pm, we heard the cries of our father, to which I, deceased Muhammad Qasim and my mother Mst. Kareema rushed to street, where accused Imam Ali, Jhando, Razaque and Khadim Hussain were giving blows with lathies to my father. We intervened to which, accused Imam Ali, Razaque gave blows to Muhammad Qasim. Accused Jhando gave blows to me at my head and arm.  Accused Imam Ali gave blows to my mother Mst. Kareema at her shoulder.”

                                The P.W Mst. Kareema at Exh.8 has deposed in respect of role of each accused as under :

                                “ It was about 5.00 or 6.00 pm, when the complainant Muhammad Umer reached infront of Mosque at the street of our village where he was attacked by the accused, I along with my son deceased Muhammad Qasim and son Aijaz Ali was available at the house when we heard the cries of complainant,  to which we rushed to the vardat and saw the accused Imam Ali, Jhando, Razaque, Khadim Hussain @ Mithal weregiving blows to complaiant with latheis and Dandas. As soon as, we reached at the vardat,the accused Imam Ali gave blows to deceased Muhammad Qasim at his temple. While accused Razaque gave blows to the deceased at his abdomen and other parts of body. Accused Imam Ali gave me Danda blows at my shoulder and at the back side of the body. Accused Jhando gave blows to P.WAijaz.”

 

11.       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.