JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.D-53 of 2011
Criminal Revision Appln.No.D-48 of 2011
|
Date of hearing |
Order with signature of Judge |
For hearing of main case.
Present:
Mr. Justice Muhammad Junaid Ghaffar
Mr. Justice Irshad Ali Shah
Date of hearing: 04.08.2020, 11.08.2020 & 18.08.2020
Date of decision: 09.09.2020.
M/S. Altaf Hussain Khoso & Irfan Badar Abbasi, Advocates for the appellants.
Mr. Altaf Hussain Surhio, Advocate for the complainant
Mr. Ali Anwar Kandhro, Addl. Prosecutor General.
~.~.~.~.~.~.~.~.~.~.~
IRSHAD ALI SHAH, J.- The facts in brief necessary for passing the instant judgment are that the appellants including Daim (since dead and the proceedings in appeal against him have been abated) in furtherance of their common intention, not only committed Qatl-e-Amd of Muhammad Siddique but caused fire shot injuries to PW Rehmatullah, with intention to commit their murder too, for that the present case was registered against them. On investigation, appellants Muhammad Maroof, Hazoor Bux and Daim (since dead) were let off by the police while appellant Muhammad Ayoob was challaned to face trial. However, as per orders of learned trial Court, appellants Muhammad Maroof, Hazoor Bux and Daim were joined in trial and were charged accordingly. The appellants did not plead guilty to the charge and the prosecution to prove it, examined in all ten witnesses and then closed its’ side.
2. The appellants including Daim (since dead) in their statements recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence, by stating that they have been involved in this case falsely by the complainant party due to enmity. They did not examine themselves on oath but examined Adab Hussain and Shakal Khan in their defence and they by supporting factum of the incident inter-alia stated that the appellants were not amongst the culprits involved in the incident.
3. On conclusion of the trial, learned Sessions Judge Kashmore @ Kandhkot found the appellants including Daim (since dead) guilty for the above said offence and then vide his judgment dated 21.05.2011 convicted and sentenced them as under;
“In view of my findings on above points, looking to circumstances of case and for above stated reasons, I hold that prosecution has proved its case against accused Muhammad Ayub, Hazoor Bux, Muhammad Maroof and Daim. Accused are found guilty of committing Qatl-i-Amd of Muhammad Siddique, by causing him fire arm injuries, are convicted and sentenced U/S.302 (b) PPC read with section 34 PPC as Tazir, to suffer imprisonment for life and to pay compensation of Rs.2,00,000/- (rupees Two Lac) each, on realization it shall be paid to LRs of deceased Muhammad Siddique, in case of failure above accused shall further undergo S.I for Six months each. Lenient view in sentence is taken, having regard to the facts, circumstances of the case and accused have suffered agony of long trial. Accused Muhammad Ayub, Muhammad Maroof, Hazoor Bux and Daim are also convicted and sentenced U/S.324 PPC read with section 34 PPC, for attempting to commit Qatl-i-Amd of P.W Rehmatullah by causing him fire arm injuries, are convicted and sentenced for Seven years R.I and to pay fine of Rs.20,000/-(Rupees Twenty Thousand) each, on realization to be paid to injured Rehmatullah, in case of failure accused shall further undergo S.I for Six months more. Accused Muhammad Maroof had caused hurt to P.W Rehmatullah which was declared by M.O Jurh-a-Jaifah, therefore, accused Muhammad Maroof is convicted and sentenced U/S.337-F(iii) PPC to pay an amount of Rs.2,14,586.66, as Arsh and also to undergo 5 years R.I, as Tazir. Accused Muhammad Ayub had caused hurt to P.W Rehmatullah which was declared by M.O as Jurh-a-Jaifah including Jurh-a-Ghayr-Jaifah Hashimah, therefore, accused Muhammad Ayub is convicted and sentenced U/S.337-D PPC to pay an amount of Rs.2,14,586.66, as Arsh and also to undergo 5 years R.I as Tazir. Accused Daim had caused hurt to P.W Rehmatullah declared by M.O as Jurh-a-Ghayr-Jaifah-Mutalahimah, therefore, accused Daim is convicted and sentenced U/S.337-D PPC to pay an amount of Rs.50,000/- as Daman and also to undergo Two Years R.I as Tazir, accused Daim had also caused hurt to P.W Rehmatullah was declared by M.O as Jurh-a-Ghayr-Jaifah-Hashimah, therefore, accused Daim is further convicted and sentenced U/S.337-F(v) PPC to pay an amount of Rs.50,000/- as Daman and to undergo Two Years R.I as Tazir. Above amount of hurt on realization to be paid to injured Rehmatullah. All the sentences to run concurrently. The accused are extended the benefit of section 382-B Cr.PC”.
4. The appellants including Daim (since dead) and the complainant have impugned the above said judgment by filing an Appeal and Revision Application, the appellants including Daim (since dead) for their acquittal and the complainant for enhancement of conviction and sentence, they are now being disposed of through instant judgment.
5. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy its enmity with them and they on investigation barring appellant Muhammad Ayub, were found innocent by the police and were let off accordingly; the charge framed against the appellants did not contain the penal sections with regard to the injuries sustained by PW Rehmatullah, and no such question has been put to any of the appellants including Daim (since dead) in their statements recorded u/s.342 Cr.PC, therefore, they could not be convicted for the offence relating to sustaining of injuries by PW Rehmatullah legally, and the evidence of the prosecution being doubtful in its character, has been believed by the learned trial Court without cogent reasons. By contending so, he sought for acquittal of the appellants.
6. It is contended by learned counsel for the complainant that the appellants including Daim (since dead) were neither innocent, nor have been involved in this case by the complainant party; three of the appellants were let-off by the police without lawful justification and they were joined in trial by learned trial Court in accordance with law; the defect in the charge and statements of appellants recorded u/s.342 Cr.PC at the most could be said to be an irregularity, which is curable in terms of Section 537 Cr.PC; the evidence which the prosecution has brought on file was natural and it has rightly been believed by learned trial Court. By contending so, he sought for dismissal of the instant appeal and enhancement of the sentence from life to death to the appellants excluding Daim (since dead), as they according to him have been dealt with leniently by learned trial Court in awarding lesser punishment without considering the gravity of the offence.
7. Learned Addl.P.G for the State did not support the revision application for enhancement of the sentence from life to death; however, he sought for dismissal of the appeal of the appellants excluding Daim (since dead) by contending that they have rightly been convicted and sentenced by learned trial Court.
8. We have considered the above arguments and perused the record.
9. It is true that the charge framed against the appellants including Daim (since dead) does not contain the penal sections with regard to the injuries sustained by PW Rehmatullah and this omission obviously is protected u/s. 535 Cr.PC, which prescribes that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed.
10. Under section 342 Cr.PC, every circumstance appearing in evidence is to be put to the accused to have his explanation, if not put, could not be used against him legally.
11. In case of Imtiaz alias Taj vs. The State and others (2018 SCMR-344), it has been held by the Hon’able Apex court that;
“According to the prosecution a firearm had been recovered from the appellant’s custody during the investigation but it is undeniable that a positive report statedly received from the Forensic Science Laboratory in respect of the said firearm had not been put to the appellant at the time of recording of his statement under section 342 Cr.P.C. The law is settled that a piece of evidence or a circumstance not put to an accused person at the time of recording his statement under section 342 Cr.P.C. cannot be considered against him and, thus, no corroboration to the ocular account was forthcoming on this score”.
12. In the instant matter, though the appellants including Daim (since dead) have also been convicted for certain penal sections with regard to injuries sustained by PW Rehmatullah but no such circumstance in detail was put to any of the appellants including Daim (since dead) to have their explanation, though their statements under section 342 Cr.PC were recorded twice, therefore, such omission could not be overlooked legally.
13. In case of Asif Ali Zardari and another Vs. The State (PLD 2001 SC-568), it has been held by the Hon’ble Apex Court that;
“The mode and manner in which the statement of Ms.Benazir Bhutto under Section 342 Cr.P.C. was recorded leaves no doubt in our mind that the provision of Section 342 Cr.P.C. was abused with a view to reach at a hasty conclusion. The underlying object of Section 342 Cr.P.C. is to enable an accused to explain the incriminating circumstances in the prosecution evidence appearing against him. In our view, this is the most valuable right being sacrosanct principle of natural justice. No doubt, the attendance of Ms.Benazir Bhutto appellant had been exempted but as she was available in Pakistan, it was incumbent upon the learned Judges to have summoned her for recording her statement. The features of the prosecution case also necessitated her examination in person. To our utter dismay the learned Judges opted not to do so and considering the compliance of the provisions of law sufficient by recording the statement of her counsel who according to the learned counsel for the appellants was not authorised to speak on her behalf. According to Ms.Benazir Bhutto appellant, when she came to know that her statement under Section 342 Cr.P.C had been got recorded through her counsel she at once made an application to supplement her statement under Section 342 Cr.P.C. and made a supplementary statement in writing containing answers to all the questions put to her counsel and requested the Court to treat the statement in writing as her statement under Section 342 Cr.P.C. but queerly enough her said statement was ignored. The circumstance is also a link in the bias.”
14. In case of Ashraf and 04 others Vs. The State (2004 P.Cr.LJ-42), it has been observed by the Hon’ble Federal Shariat Court that;
“Since, in the instant case, the learned trial Judge has not adopted mandatory procedure in conducting the trial and has failed to question the appellants on material points of the case including the recovery or weapons within the purview of section 342, Cr.P.C., therefore, we are left with no option but to remand the case. Accordingly, the impugned judgment, dated 30‑1‑2002, passed by the learned II‑Additional Sessions Judge, Dadu is set aside and the case, with consent of the parties, is remanded to the learned trial Court for its decision afresh, in accordance with law with the direction that the accused persons be re‑examined under section 342 Cr.P.C., and their attention be specifically invited to all the incriminating pieces of evidence/circumstances laid on record and they be provided opportunity to offer explanation with regard thereto. The appellants shall be at liberty to lead evidence in their defence or to appear themselves as their own witnesses, in terms of section 340(2), Cr.P.C. if they choose to do so”.
15. Section 342 Cr.PC is based on the principle involved in the maxim “Audi-alteram partem” that means no one should be condemned unheard. In the instant case, by putting no question to either of the appellants including Daim (since dead) with regard to injuries sustained by the complainant and PW Rehmatullah, they obviously have been denied the right of fair chance of their defence, which is also against the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which guarantees the right of fair trial to every citizen for determination of his civil/criminal rights and obligations.
16. In view of the facts and reasons discussed above, the impugned judgment is set-aside and the case is remanded to learned trial Court with direction to re-write the same, after re-examining the appellants excepting Daim (since dead) under section 342 Cr.PC afresh by drawing attention to the charge(s) and the incriminating evidence, within two months, after receipt of copy of this judgment.
17. The appeal and revision application are disposed of accordingly.
JUDGE
JUDGE
.