Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 62 of 2017

Confirmation case No. D-09 of 2017

Criminal Jail Appeal No. D-64 of 2017

Criminal Jail Appeal No. D-65 of 2017

Criminal Appeal No. D-305 of 2019

Before :

Mr. Justice NaimatullahPhulpoto

Mr. Justice Zulfiqar Ali Sangi

Date of hearing : 20.02.2020.

Date of judgment : 20.02.2020.

Mr. Nisar Ahmed Bhanbhro Advocate for appellant/accused Zahoor.

Haji Shamsuddin Rajper Advocate for appellant/accused Joot @ Jooto @ Dost Ali.

Mr. Manzoor Hussain Halepoto Advocate for complainant.

Mr. Zulifqar Ali Jatoi, Additional P.G.

J U D G M E N T

NAIMATULLAHPHULPOTO, J.– Zahoor and Joot alias Jooto alias Dost Ali were tried by learned Judge Anti-Terrorism Court, Khairpur in Special case 77/2014 for offences under Sections 396 read with Section 7 Anti-Terrorism Act, 1997 vide Crime No.69 of 2014 of Police Station Ranipur, in Special case No. 78/2014 State vs. Joot alias Jooto alias Dost Ali, for offence under Section 23(i) of Arms Act, 2013 and in Special case No.79 of 2014 State vs. Zahoor for offence under Section 23(i) of Arms Act, 2013 vide crime No.81/2014 registered at Police Station Ranipur. Off shoot cases were not amalgamated with main case for joint trial in terms of Section 21-M of Anti-Terrorism Act, 1997. After regular trial, both appellants were found guilty and were convicted and sentenced to death for offences under Sections 396 read with Section 34 PPC in crime No.69 of 2014. Both accused were directed to pay the compensation of Rs.2,50,000/- (Two lacs and fifty thousand) each, to be paid to the legal heirs of deceased Azher Ali Wassan in terms of Section 544-A, Cr.P.C. In case of the default in the payment of compensation, they were ordered to suffer R.I for 06 months more. Both accused were also separately convicted and sentenced in the special cases with regard to recovery of unlicensed pistol and cartridges and were convicted and sentenced to suffer R.I for seven years and to pay fine of Rs. 15,000/- (Rupees Fifteen thousand). In case of default in payment of the fine, both appellants/accused have been ordered to suffer R.I for two months more respectively. Both accused were also convicted and sentenced for offence punishable under Section 7 of Anti-Terrorism Act, 1997 and sentenced them to death. They were also ordered to pay fine of Rs. 50,000/0 (Fifty thousand) each. In case of default in payment of the fine, both appellants/accused have been ordered to suffer R.I for three months. Trial Court made reference to this Court for confirmation of death sentence awarded to the appellants Zahoor and Joot alias Jooto alias Dost Ali as required under Section 374 Cr.P.C. Trial Court extended benefit of Section 382-B Cr.P.C to the accused. Both appellants filed separate afore said criminal Jail Appeals, through Superintendent Central Prison Sukkur. Accused Qadeer alias Qadeer Ahmed was absconding, his case was bifurcated by the trial Court from the case of appellants Zahoor and Joot alias Jooto alias Dost Ali vide order dated 07.08.2014. Thereafter charge against both appellants was framed on 15.11.2014 and case was proceeded against the appellants/accused.

2. Briefly facts of the prosecution case as reflected in the impugned Judgment are as under :-

“ Briefly; the facts of the prosecution case are that on 18.06.2014 at 1300 hours, complainant Habibullah Wassan lodged the report at PS Ranipur District Khairpur, alleging therein that on the night of incident i.e. 17.06.2014 he alongwith his relatives Ellahi Bux and Fayaz Hussain while going towards Ranipur city and when they reached near crossing bridge of Mezhar Model School they saw infront of them Azhar Ali who was coming on his motorcycle from city and within the sight of complainant party, who was stopped by three armed persons on road leading towards Esso Lakho. It was at about 2045 hours complainant party saw the accused on electric light and identified them namely Zahoor Jamro, Joot @ Jooto Jamro, while 3rd one was unidentified to them and they all were armed with pistols, and forcibly they tried to get down Azhar Ali from his motorcycle on which Azhar Ali resisted and then accused persons started to drag him due to which Azhar Ali raised cries. Meanwhile, complainant party also reached near the accused persons and gave hakal to them and within the sight of complainant party accused Zahoor Jamro made fire from his pistol at Azhar Ali with intention to kill him, which hit him and fell down on the ground. Thereafter, the accused persons took the motorcycle of Azhar Ali and made aerial firing creating panic, terror and sense of insecurity in the mind of persons of the locality fled-away towards Esso Lakho. Complainant party then saw Azhar Ali, who was lying dead due to fire arm injuries and complainant left the PWs over the dead body and went to PS and lodged the FIR of the incident.”

3. It may be observed that during trial of aforesaid accused persons, appellant Qadeer Ahmed was arrested but unfortunately trial Court did not amend charge and concluded first trial which ended to the death sentence to the appellants Zahoor Ahmed and Joot alias Jooto @ Dost Ali.

4. Thereafter, case against appellant Qadeer Ahmed was proceeded by the trial Court in separate special case No. 77-A of 2014 which also ended to the imprisonment for life of the appellant/accused Qadeer Ahmed. After his conviction, appellant/accused Qadeer Ahmed also filed separate criminal Appeal bearing No. D-305 of 2019 by impugning the judgment dated 17.12.2019 whereby he was sentenced to the imprisonment for life. By this Judgment, we intend to decide aforesaid Appeals as well as Confirmation Reference.

5. Mr. Nisar Ahmed Bhanbhro, learned advocate for appellants Zahoor and Joot alias Jooto alias Dost Ali before arguing the appeal on merit submitted that trial Court has committed gross illegality while conducting the trial and the same is not curable. He has submitted that during trial of appellants Zahoor and Joot alias Jooto alias Dost Ali, evidence of twelve (12) P.Ws was recorded, yet other evidence was to be recorded, in the meanwhile accused Qadeer alias Qadeer Ahmed was arrested on 25.04.2016 but trial Court failed to amend the charge and concluded trial of accused Zahoor and Joot alias Jooto alias Dost Ali. It is further submitted that trial Court after framing the charge against accused Qadeer Ahmed recorded evidence of prosecution witnesses, who were examined during trial of accused Zahoor and Joot alias Jooto alias Dost Ali and during trial of appellant Qadeer same evidence was copied/Copy pasted. It is also submitted that material evidence during trial of accused Zahoor and Joot alias Jooto alias Dost Ali was recorded in absence of appellant Qadeer Ahmed but said evidence has been used against him for conviction. Lastly, it is submitted that procedure adopted by the trial Court has vitiated the trial and prayed for remand of the case to the trial Court.

6. Mr. Zulifqar Ali Jatoi Additional P.G when confronted with the above legal position conceded that trial Court has committed illegality and submitted that in the criminal trial, no prosecution evidence can be recorded in absence of the accused. Learned Additional P.G further pointed out that evidence during the trial of Zahoor and Joot alias Jooto alias Dost Ali particularly examination-in-chief of P.Ws recorded has been copied during the trial of appellant Qadeer Jamro and prayed that proper course might be to remand the case to the trial Court for deciding the same after framing charge and recording evidence afresh. Learned Additional P.G in support of his submissions relied upon Judgment passed by us, on 13.02.2020 in criminal Jail Appeal No.D-18 of 2019 titled Nawab alias Tharo and another vs. The State, in which it is held as follows:-

“ 8. In case of Muhammad Younis v. Crown (PLD 1953 Lahore 321), it is reported that if there are common judgments and evidence is copied, the trial was said to be illegal, viz. in violation of mandatory provisions of Section 353Cr.P.C and Sections 137 and 138 of the Evidence Act. Similarly, in NurElahi v. State& others(PLD 1966 SC 708), the Hon’bleSupreme Court disapproved the procedure whereby the evidence of common witnesses was recorded once only and their statements were read out in the other cases. Similarly, in Syed Abdul Waheed v. State(1968 PCr.LJ 776), where the evidence of Handwriting Expert, who was common in two cases, and whose original deposition was placed on the record of the other case through a carbon copy; the procedure adopted had invalidated the trial, and re-trial was ordered. In case of The State v.Qalandar Khan(PLD 1971 Peshawar 119), the statement of common witnesses were recorded only in one case and the carbon copies thereof were placed on the record of the other cases. It was held that the procedure adopted was illegal. In this case evidence of witnesses was recorded in absence of accused Nizamuddin alias Nizam.”

7. In the present case, during trial of accused Zahoor and Joot alias Jooto alias Dost Ali, appellant/accused Qadeer was arrested but charge was not amended. On the conclusion of trial of accused Zahoor and Joot alias Dost Ali, when trial of accused Qadeer commenced, the same examination-in-chief was copied/copy pasted. Learned trial Court provided services of defense counsel to the accused Zahoor and Joot alias Jooto alias Dost Ali on state expenses. When trial Court committed illegalities in conducting the trial, objection was not raised by advocate for pauper accused before the trial Court. Proper cross-examination has also not been conducted by the advocate appointed by trial Court on state expenses. Undeniably, to ascertain the truth or falsity to a charge the statements of witnesses are judged by conducting the proper cross-examination and defense counsel on State expenses should be out of lawyers having acumen, interest and some experience of trial of murder cases preferably senior advocates. No evidence recorded in absence of accused, in another trial can be used against other accused. We are clear in our mind that procedure adopted by trial Court was illegal and it is not curable under Section 537 Cr.P.C.

8. In the view of legal and factual position, Criminal Appeal No.D-62 of 2017 and Criminal Appeal No.D-305/2019 arising out of same incident, however, by different Judgments dated 06.05.2017 and 17.12.2019 are set aside and both appeals are partly allowed without touching the merits of the case and cases are remanded back to the trial Court from the stage of framing charge afresh against all three accused persons and to record evidence further in accordance with law. Confirmation Reference No. D-09 of 2017 made by the trial Court is answered in negative. Let the copy of order be sent to the trial Court, on receipt of this order, trial Court shall complete the trial within the period of three (03) months in accordance with law. In the view of above both appeals as well as Confirmation Reference are disposed of in the above terms. Needless to mention that appellants would be at liberty to apply for bail as well as may file application under Section 23 of Anti-Terrorism Court, 1997 before the trial Court, the same shall be decided by the trial Court in accordance with law.

J U D G E

Irfan/PA