Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Jail Appeal No. D – 225 of 2016
Before:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar Ali Sangi
Date of hearing : 03.03.2020.
Date of judgment : 03.03.2020.
Mr. Rukhsar Ahmed
M. Junejo, Advocate for appellant / accused.
Mr. Shafi Muhammad
Mahar, Deputy Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J. – Riazuddin son of Aziz-ul-Rehman Masood
Pathan, appellant was tried by learned Judge, Anti-Terrorism Court, Sukkur in Special
Case No.74/2012 for offences under Sections 3/4 of Explosive Substance Act,
1908, 13(d) of Arms Ordinance, 1965 and 7 of Anti-Terrorism Act 1997.
After regular trial, vide judgment dated 22.11.2016, appellant was convicted and
sentenced as under:
i)
For committing offence U/S 4 Explosive Substance Act, present accused is
convicted and sentenced to suffer imprisonment for life which forfeiture of his
whole property as required by Section 5(a) of Explosive Substance Act, 1908.
ii)
For committing offence U/S 13(d) A.O, present accused is convicted and
sentenced to suffer R.I for seven years and to pay fine of Rs.10,000/- and in
case of default in payment of fine, he shall suffer S.I for three months more.
iii)
For committing offence U/S 7(ff) ATA, 1997, present accused is convicted
and sentenced to suffer imprisonment of life.
All
the sentences awarded to the appellant were directed to run concurrently.
Appellant was extended benefit of Section 382-B, Cr.P.C. Case against
absconding accused Riaz Gul and Mir Alam was kept on dormant file.
2. Brief
facts leading to the filing of the Appeal, as reflected in the impugned judgment,
are as under:
“Briefly the facts of the
prosecution case, are that on 07.12.2012, complainant Excise Inspector Zulfiqar
Ali lodged the FIR of crime No.234/2012 at police station Ubauro, wherein he
stated that he along with E.T Inspector Muhammad Younis and his staff left
Excise Police Station Ghotki under entry No.01 at about 4.30 pm dated
06.12.2012 in government mobile along with investigation bag and proceeded
towards the excise check post at Sindh-Punjab border near Kamoon Shaheed for
checking of narcotics in the vehicles and after reaching there, they were
starting the checking of vehicles. At about 11.00 am time during checking,
complainant party saw that one truck was coming speedily from Punjab side,
hence complainant gave signal it and got stopped it. Then complainant saw that two
persons including driver were present in the truck having No.TKD-584. The
complainant inquired about them as well as truck. Whereupon truck driver
disclosed his name to be Ghulam Hyder r/o Amanullah district Tank and other
person shown his identity as cleaner of the truck and disclosed his name as
Riazuddin r/o district south Waziristan and further disclosed that truck is
empty. From the personal search of driver, four notes of Rs.1000/- and one note
of Rs.500/- total Rs.4500, old identity card and one mobile phone of Nokia were
secured and from the personal search of cleaner Riazudin five notes of Rs.500/-
total Rs.2500/- and one original identity card were secured. Thereafter
complainant party searched into the truck which was empty but complainant party
saw a secret box in the upper side of cabin, wherein they found Kalashnikovs,
rocket launcher, suicide jackets etc which were wrapped in polythene bags. The
complainant party conveyed such information to their high-ups, meanwhile they
took into custody of both accused persons so also confiscated the truck along
with recovered explosion. Thereafter DSP along with bomb disposal squad also
rushed there and after diffusing said ammunition, got down from the truck and
sealed the same explosions and narcotics as mentioned in the FIR as well as in
the mashirnama and from further search of truck one registration book register
in the name of Riaz Gul son of Warsha Gul also secured. Thereafter complainant
along with accused persons and recovered explosion & truck came at police
station Ubauro and lodge the FIR to the above effect on behalf of state.”
FIR
was recorded vide Crime No.234/2012 at P.S Ubauro, District Ghotki for offences under
Sections 3/4 of Explosive
Substance Act, 1908, 13(d) of Arms Ordinance, 1965 and 7 of Anti-Terrorism Act,
1997.
3. After
usual investigation, challan was submitted before the trial Court under
the above referred sections.
4. Trial
Court framed the charge against accused Ghulam Hyder and Riazuddin at Ex.09
under Sections 3/4 of Explosive Substance Act, 1908 read with Section 7(ff) of Anti-Terrorism
Act, 1997 and 13(d) of Arms Ordinance, 1965. Accused met with the charge with
denial. Amended charge was framed by the trial Court at Ex.08-C, to which
accused did not plead guilty and claimed to be tried.
5. At
the trial, prosecution examined four (04) prosecution witnesses, who produced
the relevant documents. Learned ADPP for the State along with his statement
dated 17.10.2016 filed report of the ballistic expert dated 30.01.2015. Thereafter,
prosecution side was closed.
6. It
may be mentioned that accused Ghulam Hyder expired during the trial and
proceedings were abated against him. Statement of appellant Riazuddin was recorded
under Section 342, Cr. P.C at Ex.21, in which accused claimed false implication
in this case and denied the prosecution allegations. Accused did not lead
evidence in his defence and declined to give statement on oath in disproof of
prosecution allegations.
7. Trial
Court after hearing the counsel for the parties and assessment of the evidence, vide judgment dated 22.11.2016,
convicted and sentenced appellant Riazuddin as stated above, hence, this
Appeal.
8. Facts
of this case as well as evidence find an elaborate mention in the judgment
of the trial Court, hence, there is no need to repeat the same.
9. At
the very outset, Mr. Rukhsar Ahmed Junejo, learned advocate for the appellant
submitted that statement of the accused has been recorded by the trial Court
under Section 342, Cr.P.C, in a stereo type manner and all the incriminating
pieces of the evidence were not put to the accused for his explanation /
reply, as required by the law. Mr. Junejo, particularly referred to the
report of the ballistic expert, and argued that no question with regard to the
positive report of the ballistic expert has been put to the accused, on the
other hand, trial Court has relied upon that piece of evidence in the judgment
for conviction of appellant. Reference has been made by the counsel for the
appellant to para No.22 of the impugned judgment. Mr. Junejo lastly
submitted that case may be remanded to the trial Court for providing a fair
opportunity to the appellant to reply all the incriminating pieces of evidence
brought on record against him. In support of his contentions, he has relied
upon an unreported judgment of Hon’ble Supreme Court passed in Criminal
Appeal No.292 of 2009 in the case of Muhammad Hassan v. The State dated 28.10.2010.
10. Mr.
Shafi Muhammad Mahar, learned DPG conceded to the contentions raised by Mr.
Junejo and further submitted that report of the ballistic expert was available
with the prosecution, but it was not produced through the Investigation Officer.
It is further argued that trial Court failed to put the question with regard to
the positive report of the ballistic expert from the accused in his statement
recorded under Section 342, Cr.P.C, which has caused prejudice to the case of
the accused. In all fairness, learned DPG submitted that case may be remanded back
to the trial Court for recording the statement of accused afresh in accordance
with law.
11. In
order to appreciate the contentions of the learned advocate for the appellant and
for the sake of reference, statement of accused Riazuddin recorded under
Section 342, Cr.P.C at Ex.21, is reproduced as under:
Exh.21
IN THE COURT OF JUDGE,
ANTI-TERRORISM, SUKKUR.
Spl. Case
No.74/2012.
STATEMENT OF
ACCUSED U / S 342 CR.P.C.
Name: Riazuddin
Father’s Name: Azizul Rehman
Caste: Masood Pathan
Age: 23 Years
Occupation: Labourer
R/O Village Zagbeer taluka Saradooga
District: Tank
Q.No.1. You have heard
the evidence of prosecution witnesses at the trial to the effect that on
06.12.2012, at about 1100 hours, you along with deceased accused Ghulam Hyder
were coming from Punjab side on Truck No.TKD-584 which was stopped by Excise
Police at National Highway road Excise check post near Sindh-Punjab border and
on personal search excise police recovered five notes of Rs.500/- total
Rs.2500/- and CNIC from your wearing shirt and during checking of the said
truck you were found in possession of 40 kilogram of Charas so also recovered
explosive substance material viz: 08 suicide jackets, 76 detonators, 18
Junction Box, 64 hand grenades, 132 empty fuse caps, 2 remote control, one
small dry battery, 107 small lead lamps, 07 BML cartridges, BML cartridges
guns, 71 BML cartridges, 360 meter wire of detonators, One fire gun rocket, 07
empty jackets, 03 Kalashnikovs, 50 magazines of Kalashnikovs, 500 live bullets
of Kalashnikovs, one pistol of 9mm, 02 magazines of 9mm, 32 live bullets of
7-mm, one rocket launcher, 38 live shells of rocket launcher, 39 fuse of rocket
launcher along with one Registration book of the said truck which was in the
name of Riaz Gul. What have you to say?
Ans. No Sir it is false.
Q.No.2. Why the PWs have
deposed against you?
Ans. All P.Ws are Police officials,
interested and hostile, hence they deposed falsely.
Q.No.3. Do you want to lead
evidence in defence?
Ans. No Sir.
Q.No.4. Do you want to give
evidence on oath?
Ans. No Sir.
Q.No.5. Do you want to
say anything else?
Ans. Sir I am innocent. I sit in
truck from dera Ismail Khan, and I take lift from driver, when the truck
reached at Obaro, the Police stopped it, and asked the driver to take their
articles to Karachi, for which driver refused, then Police falsely challaned us,
the driver and cleaner of Truck succeeded to ran away. I pray for justice.
BEFORE ME
Sd/-
01/11/16
JUDGE
ANTI-TERRORISM COURT SUKKUR
CERTIFICATE
The statement of accused has been
taken in my presence and hearing, and record contains a full and true account
of his statement made before me.
Sd/-
01/11/2016
From
the perusal of the aforesaid statement, it is clear that no question with
regard to the ballistic expert’s report has been put to the accused for his
explanation / reply. On the other hand, trial Court in the impugned judgment in
para No.22 has relied upon that piece of evidence for the purpose of conviction
to the appellant. Relevant portion of para No.22 of the impugned judgment is
reproduced as under:
“22. Learned ADPP for the state has also produced the report of
forensic expert along with statement at Ex.19 which shows that recovered
weapons were in working condition, therefore in my view the ocular evidence of
excise police official viz: complainant and mashir Excise Inspector Muhammad
Younis fully supported by the circumstantial evidence of I.O and report of Bomb
Disposal Squad and report of Forensic Expert.”
12. It
is settled law that all the incriminating pieces of evidence brought on record
by the prosecution ought to be put to the accused at the time of recording his
statement under Section 342, Cr.P.C for the explanation / reply of the accused
as held by Hon’ble Supreme Court in an unreported judgment dated 28.10.2010
passed in Criminal Appeal No.292 of 2009 in the case of Muhammad Hassan v. The State.
Relevant portion is reproduced as under:
“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.”
13. We
are clear in our mind that material piece of evidence regarding positive report
of ballistic expert being relied upon by the prosecution against the appellant
has not been 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 by now a settled principle of law that a failure to comply with
this mandatory requirement vitiates the trial. The case in hand is a case
punishable up to life imprisonment. We have been shocked that trial Court dealt
with the case in the casual manner in recording the statement of the appellant
/ accused under Section 342, Cr.P.C by ignoring the legal position. Trial Court
has committed a glaring illegality. Omission on the part of the trial Court
mentioned above was not merely an irregularity curable under Section 537,
Cr.P.C but the same was a downright illegality which had vitiated the appellant’s conviction and sentence
recorded by the trial Court.
14. In
the view of above, Appeal is partly allowed in the above terms. Conviction
and sentence recorded by the trial Court are set aside. The case
is remanded back to the trial Court with direction to record the
statement of the accused under Section 342, Cr.P.C afresh by putting all the
incriminating pieces of evidence brought on record by the prosecution for his
explanation / reply. Thereafter, trial Court shall also provide an opportunity
to the accused to produce the defence, if any. After that, trial Court, after
hearing the counsel for both the parties, shall decide the case within 45
days in accordance with law.
15. Criminal
Jail Appeal is disposed of in the above terms.
J U D G E
J U D G E
Abdul Basit