IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

 

Crl. Jail Appeal No.S-59 of 2013

 

 

 

Appellant:                                Wazeer Ali son of Inayatullah @ Imam Bux Narejo through, Mr. Shahid Ali K. Memon, Advocate

 

Complainant:                                    Ghulam Umar Narejo through,                   Mr. Ghulam Shabbir Bhutto, Advocate.

 

The State:                                Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

 

 

Date of hearing:                       17-02-2020

Date of Announcement:           06-03-2020

 

 

                                      J U D G M E N T

 

 

ZULFIQAR ALI SANGI,J:-   Appellant Wazeer Ali son of Inayatullah @ Imam Bux Narejo, has assailed the judgment dated; 29.07.2013 passed by learned Additional Sessions Judge-II, Khairpur in Sessions Case No.369/2008 arising out of FIR No.23/2008 registered at Police Station Gambat for the offences under Sections 302, 364, 337-H2, 148 & 149 PPC whereby he was convicted under Section 265-H(2) Cr.P.C for the offence under Section 302 PPC and was sentenced to suffer imprisonment for life and to pay compensation of Rs.100,000/- (One lac) under Section 544-A Cr.P.C to the legal heirs of the deceased Hazoor Bux and Rasool Bux. In default, whereof, he was directed to undergo simple imprisonment further for a term of (06) months more. Accused was also convicted for the offence under Section 364 PPC for kidnapping the deceased and was sentenced to suffer rigorous imprisonment for ten years. Both sentences were ordered to be run concurrently. However, the benefit of Section 382-B Cr.P.C was extended to the appellant.

2.                Brief facts of the prosecution case are that complainant Ghulam Umar Narejo lodged FIR on 19.01.2008 at 2130 hours, alleging therein that about two years back, Inayat alias Inam Narejo was murdered, such case was lodged by Ghulam Abbas against complainant’s maternal uncle namely Rahim Bux and other relatives. During the investigation of that case, Rahim Bux the maternal uncle of the complainant and his other relatives were declared as innocent. After recording of statements under Section 164 Cr.P.C of complainant and PWs of the case and the remaining accused were challaned, on which Wazeer and Umar and their relative had got annoyed and issued threats that they will not spare them and take revenge from Rahim Bux and others. On the day of the report at evening time, the complainant, his brother Hazoor Bux and cousins namely Rasool Bux alias Naseem and Shah Bux, both sons of Sohrab,  Zulfiqar Ali son of Ali Bux and relative Younis son Khan Muhammad were sitting in the Otaq at costs, where bulbs were lightening. Meanwhile, at about 7:30 pm, ten armed accused persons entered into their Otaq and encircled the complainant party, where they identified each accused Wazeer, Umar, Sabir armed with KKs, Muhammad Bux, Ghulam Abbas, Rehmat armed with guns and four unidentified accused armed with KKs, would be identified if seen again. Within the sight of complainant party, accused Wazeer and Umar forcibly dragged and kidnapped Hazoor Bux and Rasool Bux alias Naseem from their arms, while remaining accused made aerial firing and came outside from the Otaq. Then complainant party raised cries of murder-murder, on cries and fire shot reports, villagers came running while giving hakals later-on, complainant party along with villagers chased the culprits and when reached near village Gulab Jagirani, on seeing the followers near them, accused Umar and Wazeer said to each other that complainant party reached near them, therefore, abductees Hazoor Bux and Rasool Bux alias Naseem Narejo should be murdered in order to take revenge of their father. Saying so accused Wazeer Narejo opened a burst of KK directly upon the Hazoor Bux Narejo, who raised cries and fell down and accused Umar Narejo opened a burst of KK upon Rasool Bux alias Naseem, who also raised cries and fell down on the ground. Then all the accused persons made aerial firing and fled away towards the east. Thereafter, the complainant saw that Rasool Bux alias Naseem and Hazoor Bux sustained firearm injuries and died at the spot. Then complainant appeared at Police Station Gambat and reported the incident against the above named accused.

3.                   After the usual investigation, the police submitted challan in the Court of law having jurisdiction against accused Azizullah while other accused were absconders. The learned trial Court completed all legal formalities and framed charge against accused Azizullah and proceeded the case. Thereafter the appellantWazeer was arrested on 03-01-2011 and again the charge was framed against both accused at Ex.38 to which they pleaded not guilty and claimed trial, such pleas were obtained from them.

4.                   In order to prove its case, prosecution examined in all ten (10) witnesses who gave their evidence and exhibited certain documents in support of the prosecution case and thereafter, side of the prosecution was closed vide statement at Ex.60.

5.                   After completion of prosecution evidence, learned trial court recorded the statement of the accused in terms of section 342 Cr.P.C, wherein they denied the prosecution case and claimed their innocence, however, neither they examined themself on oath nor led evidence in their defense.

6.                   Learned trial Court after hearing the Counsel for the accused learned DDPP for the State and considering the evidence, passed impugned judgment, wherein acquitted accused Azizullah and convicted the appellant Wazeer which has been assailed through instant appeal.

7.                Learned counsel for the appellant/accused contended that the appellants are innocent and have falsely been involved in this case with malafide intention; that the impugned judgment is against the facts of case and law;that there are major contradiction in the evidence of witnesses, which creates serious doubt in the prosecution case but trial court ignored the same in violation of settled principles of law; Learned counsel pointed out that the charge was framed on 15-07-2009 against accused Azizullah S/O Dhani Bux and thereafter evidence of some witnesses were recorded and after the arrest of appellant another charge was framed against accused Azizullah and Wazir on 17-02-2011 and witnesses were recalled but the main witnesses were not examined after the 2nd charge and trial court relied upon their evidence and convicted the appellant which is against the law and he prayed for remand of the case for recording the evidence of all those witnesses whose evidence was not recorded in presence of the appellant.

8.                Learned D.P.G assisted by the Counsel for complainant conceded after the verifying the deposition of the witnesses and confirm the fact that evidence of material witnesses was not recorded in presence of appellant but the same was used against him by the trial court and stated that complainant will produce the same witnesses before the trial court if case is remanded back to learned trial court.

9.                I have heard learned counsel for the parties and have examined the record carefully with their able assistance.

10.     Admittedly the first charge was framed on 15-07-2009 against only one accused namely Azizullah and thereafter prosecution examined PW-1 Mumtaz Ali at Ex: 05, PW-2 Dr. Ali Gul at Ex: 8, PW-3 Sultan Ahmed at Ex: 15, PW-4 Ghulam Umar at Ex: 17, PW-5 Shah Bux at Ex: 19, PW-6 Ghulam Bashir at Ex: 20, PW-7 Imam Bux at Ex:30, PW-8 SIP Hakim Ali at Ex: 32, PW-9 Ali Dino at Ex: 33, PW-10 Manzoor Hussain at Ex: 34, PW-11 Azhar Gul at Ex: 35, Dairy dated:17-1-2011 shows that trial court received supplementary challan against accused Wazirand P.O was issued, after completing formalities on 17-02-2011 2nd charge was framed against both the accused and processes issued for appearance of witnesses.

11.     Record reflects that after framing of the 2nd charge, the prosecution examined PW-1 Mumtaz Ali at Ex: 41, PW-2 Manzoor Hussain at Ex: 42, PW-3 Mumtaz Ujjan at Ex: 47, PW-4 Ghulam Umar at Ex: 48, PW-5 Muhammad Younis at Ex: 49, PW-6 Shah Bux at Ex: 50, PW-7 Dr. Ali Gul at Ex: 53, PW-8 Ali Dino at Ex: 54, PW-9 Imam Bux at Ex: 55 and PW-10 SIP Zafarullah at Ex: 59, after recording evidence of these witnesses learned ADPP closed the side of prosecution vide statement dated: 22-07-2013 at Ex: 60and then statements under section 342 Cr.P.C of accused persons was recorded and after hearing the parties learned trial court passed the impugned Judgment dated: 29-07-2013.

12.     It is observed that after the framing of 2nd charge three witnesses who were already examined were not examined by the trial court which was ASI Sultan Ahmed he was author of the FIR, PW Ghulam Bashir who was the mashir in all the mashirnamas and PW Azhar Gul Soomro who was Judicial Magistrate and conducted identification of accused Azizullah. Accused Azizullah was acquitted by the learned trial court and the evidence of PW Azhar Gul was related to him, the prosecution has not filed acquittal appeal against the said acquittal.ASI Sultan Ahmed was the author of the FIR and registration of FIR is not denied by any party whereas the PW Ghulam Bashir who was the mashir in all mashirnamas and was important witness and by relying his evidence with other evidence trial court convicted the appellant, therefore, his evidence was very important to be recorded in presence of the appellant which earlier was not recorded in presence of the appellant and was used against him.

13.     Learned trial court had recorded statements of process server LPC Mumtaz Ali who disclosed that Complainant Ghulam Umar, PWs Zahid Hussain, Younis, Zulfiqar, and Qalandar Bux have been shifted to an unknown place. Likewise the process server namely HC Ghulam Nabi stated the same statement before the trial court.  Statement of the process server namely LPC Gul Muhammad was also recorded who stated that Ghulam Bashir has been shifted to an unknown place. Record reflects that all other witnesses were examined after the report of process server and only above three witnesses were not examined from which one who was Judicial Magistrateand related to co-accused Azizullah who has been acquitted by the trial court and other was ASI Sultan the author of the FIR and the FIR is not disputed then the third one was mashir Ghulam Bashir, Complainant himself is present in court and stated that no one was shifted but police with malafide intentions given such statements and on query he disclosed that PW (Mashir) Ghulam Bashir was also available and at present, he is available in his house and he will produce anywhere for recording his evidence.

14.     Learned trial court while convicting the appellant had relied upon the evidence of mashir Ghulam Bashir and the relevant portion of the judgment of the trial court is reproduced as under:-

“ The prosecution case is also supported by the circumstantial evidence in shape of mashirnama of place of wardat, mashirnama of dead bodies, inquest report of the dead bodies, mashirnama of arrest of accused Wazeer Ali. All the mashirnamas had been produced by mashir Ghulam Bashir when only charge was framed against accused Azizullah and at that time accused Wazeer Ali was absconder and now mashir Ghulam Bashir is not traceable, although possible efforts have been taken for procuring his attendance, therefore the mashirnamas produced by mashir Ghulam Bashir will be considered as piece of evidence. Investigation Officer SIP Abdul Hakeem Bullo who had initially conducted the investigation has been expired.

In view of the above discussion, it is quite admitted that sufficient evidence against accused Wazeer Ali and absconder accused Umar has come on record in shape of ocular evidence, medical evidence, corroborated by motive and recovery of 15 empties of Kalashnikovs. The chemical report regarding blood stained earth is also in positive.”

 

15.     It is a well-settled principle of law that evidence is to be recorded in the presence of accused and the specific provision in this respect is provided under section 353 of the  code of criminal procedure 1898, and the same is reproduced as under:-.

"353. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXIIA] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader".

 

16.     It is clear from the above-referred provision of law that the legislature has made it mandatory by using the word "Shall" that all evidence should be recorded in the presence of the accused or when his personal attendance is dispensed with and accused is represented through a pleader. The logic behind this could be nothing but to ensure providing a full and fair opportunity to the accused while eliminating all chances of a subsequent plea(s) of accused being prejudiced. The legislature has provided an exception to this mandatory provision by enacting the provision of section 512, Cr.P.C. and Article 46 of Qanun-e-Shahadat Order, 1984 while keeping in view certain natural facts and elements. The provision of section 512, Cr.P.C., the exception, being material, is reproduced hereunder:--

"512. Record of evidence in absence of accused. (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or [send for trial to the Court of Session or High Court] such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expenses or inconvenience which, under the circumstances of the case, would be unreasonable".

 

 

17.     Perusal of above provision shows that this exception is available in the matter(s) where the accused is absconder, and the purpose of recording of depositions under section 512, Cr.P.C. is that same could be used against the absconder accused on his arrest or as per sub-clause (2) thereof, against the person or persons, who may subsequently be accused of the offence. The intention of legislation may be to preserve the deposition keeping in view the chances of deponent being dead or incapable of giving evidence at such time. However, such evidence(s) cannot be of such weight as recorded in presence of the accused person(s) whereby the accused is provided a fair opportunity to cross-examine the deponent to test the veracity of deponent and Article 46 of Qanun-e-Shahadat Order also makes it clear that procedure for recording evidence and its evidentiary value is available in the statute with certain conditions. In this regards Hounarable Supreme Court in case of Arbab Tasleem v. The State, (PLD 2010 SC 642), has held as under:-

"As a general rule of evidence only such statement is legal and admissible which is given during the course of judicial proceeding on oath and it is taken by a person authorized under the law to take down the evidence and it is made in the presence of the adverse party, giving him right to cross-examine deponent. There are two exceptions to the said general rule, where a statement made admissible one exception is covered under Art.46, Q.S., when a person makes a statement as to the cause of his death and the second exception is under section 512, Cr.P.C. when an accused absconds and law makes it permissible to preserve the evidence of witness with a view that if at his trial any such witness is either dead or incapable of giving evidence or his presence cannot be acquired without unnecessary delay, his statement previously recorded at the back of accused can be taken into evidence. Further it is held that "evidence recorded will be legal/admissible, however its evidentiary value cannot be equated with such statement which has been subjected to cross-examination, therefore, for giving weight to the statement of such witness, it has to be seen whether such statement: intrinsically rings true and whether or not same is supported by circumstantial evidence through any source. If such witness is supported by independent evidence in shape of any circumstances or corroboration from any source, it will be good piece of evidence."

 

18.     It is well-settledprinciple of law that if earlier recorded evidence, is allowed to be used against the absconding accused on his arrest without providing him an opportunity to cross-examine the witness this may result in a departure from the word of fair trial, and would be the violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.As regards the efforts made by the trial court for procuring the attendance of said mashir only statement of process server was recorded who only based on simple statements of some persons (who may be inimical to the complainant party) deposed before the trial court that witnesses abscond away and shifted to unknown places and not made any other efforts for their attendance. From the conduct of the processing agency, it is clear that they had not collected any record or evidence which suggests that the appearance of the said witness before the trial court was impossible. It is also observed that process server namely LPC Mumtaz Ali also made the same statements before the trial court on 19-12-2011 and on 10-01-2012 about the other witnesses including the complainant that they were absconded away and are not available in their houses, but record reflects that evidence of PW-3 Mumtaz was recorded on 05-12-2012, PW-4 Complainant Ghulam Umar on 12-01-2013, PW-5 Muhammad Younis on 12-01-2013, PW-6 Shah Bux on 30-03-2013, PW-7 Dr. Ali Gul on 19-07-2013, PW- Ali Dino on 19-07-2013, PW-9 Imam Bux on 19-07-2013, and stereo type statement of LPC Gul Muhammad was recorded on 22-07-2013 in which he stated that Ghulam Bashir shifted to unknown place on which trial court passed order and issued proclamationU/S 87/88 Cr.P.C and then PW-10 Zafarullah was examined on 22-07-2013 on the same day side of prosecution was closed, record reflects that the proceedings U/S 87/88 Cr.P.C against the said witness Ghulam Bashir were not conducted in accordance with the principle settled by this court in the case of Nasrullah V. Station House Officer, Police Station Jacobabad and 6 others (PLD 2016 Sindh 238).

19.     Learned trial court does not take serious efforts for procuring the attendance of mashir Ghulam Bashir andalso not assigned the cogent reasons for resorting to the above exceptional procedure, which, otherwise, is not within the spirit of safe administration of Justice. Thus, in the absence of such reason, the trial Judge has committed illegality while adopting the evidence of P.W who was not cross-examined by the appellant. Such practice is a complete departure from the procedural law. In such circumstances, it would meet the ends of justice: to allow this appeal setting aside the conviction and sentences awarded to appellantvide impugned judgment and remand the case. Accordingly, impugned judgment dated 29-07-2013 is hereby set aside only to the extent of present appellant namely Wazeer Ali and the case is remanded to the Trial Court for its decision afresh in accordance with law within three months after providing an opportunity to appellant/accused to cross-examine only PW Ghulam Bashir and thereafter, appellant/ accused be re-examined under section 342, Cr.P.C. The appellant shall be permitted to lead evidence in hisdefence or to get recorded his statement within the purview of section 340(2), Cr.P.C if he chooses to do so.

20.     The appeal is disposed of in view of the above terms.

 

                                                                                             JUDGE