Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 94 of 2013

                   Confirmation case No. D-06 of 2013

 

Present.

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Abdul Mubeen Lakho.

Date of hearing:                  03.10.2019

 

M/S A.R Faruq Pirzado, Qurban Ali Malano and Shamsuddin Kobher counsel for appellants.

Mr. Ubedullah K.Ghoto Advocate for complainant.

Mr. Zulifqar Ali Jatoi Additional P.G.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J.  Appellants Dadlo, Rab Nawaz, Zameer Ahmed and Nawab were tried by learned 3rd Additional Sessions Judge, Mirpur Mathelo in Sessions case No. 340 of 2008 for offences under Sections 302, 337-H(2), 147, 148, 149 PPC. After regular trial vide Judgment dated 24.10.2013, appellants were convicted and sentenced as under :-

a)    Accused Dadlo, Rabnawaz, Zameer Ahmed and Nawab are convicted for offences punishable U/S:147,148 read with section 149 P.P.C for two years and to pay fine of Rs: 2000/- each equally payable to the legal heirs of both deceased and in case of failure thereto they shall suffer further S.I for one month. 

b)    Accused namely Dadlo, Rabnawaz, Zameer and Nawab, are also convicted for offences punishable under sections 302 (b) read with section 149 P.P.C, for committing double murder of Muhammad Hayat and Moriro, by caste Kobhar, therefore, they are sentenced to death as Tazir and they shall be hanged by neck till they are dead and to pay Rs:50,000/- (Fifty thousand) each to be paid equally to the legal heirs of both the deceased being compensation as required under section 544-A Cr.P.C or to undergo simple imprisonment for six months each in default thereof. 

c)    Accused Dadlo is also convicted and sentenced for offence punishable under section 337-H(2) read with section 149 P.P.C, for three months and to pay fine amount of Rs:2000/- to the complainant of this case, in case of his failure thereto he shall suffer further S.I for one month more. The accused are extended benefit of section 382-B Cr.P.C. for the period which they have remained as under trial prisoners in this case. 

            Trial Court made reference to this Court for confirmation of death sentence awarded to the appellants Dadlo, Rab Nawaz, zameer Ahmed and Nawab in terms of Section 374 Cr.P.C while case against absconding accused Sahibdino, Mazari and Liaquat was kept on dormant file. Appellants preferred this criminal appeal, it was admitted to regular hearing.

2.                     Mr. Abdul Rehman Faruq Pirzado Advocate for appellant Nawab before arguing the appeal on merits pointed out that evidence of PW-09 Abdul Malik Investigation Officer has been recorded by the trial Court in absence of defense counsel;  it is submitted that procedure adopted by the trial Court was not warranted under the law. It is further argued that it is a case of capital punishment and the accused were entitled to engage the advocate of their choice, in case they had no confidence in advocate provided to them by the Court on state expenses. Learned defense counsel submitted that statements of the appellants / accused were recorded U/S 342 Cr.P.C by trial Court on 22.10.2013 but accused refused to put their signatures on their statements by expressing reservations that advocate provided to them on state expenses was not acceptable to them.  Mr. Pirzada submitted that case may be remanded back to trial Court as illegalities committed by the trial Court are not curable under the law. In support of his submissions he has relied upon case of Ghulam Rasool Shah and another v. The State (2011 SCMR 735).

3.                     Mr. Zulifqar Ali Jatoi Additional P.G assisted by Mr. Ubedullah K. Ghoto counsel for the complainant conceded to the legal position that evidence of PW-09 Abdul Malik was recorded by the trial Court in absence of defense counsel. However, argued that opportunity was provided to the accused persons to cross examine PW-09. Additional P.G further submitted that accused had refused to put their signatures on their statements recorded U/S 342 Cr.P.C. He prayed for remand of the case.

4.                     After hearing learned counsel for the parties, we have perused the R & Ps. It is a matter of record that examination- in- chief of PW-09 Abdul Malik I.O was recorded on 25.09.2013 in absence of defense counsel. No doubt trial Court provided an opportunity to the accused persons to cross-examine above‑named witness. The legal requirement is that in the case of capital punishment examination- in- chief and cross-examination should be recorded in presence of defense counsel. It appears that accused were dis-satisfied from the counsel provided to them on state expenses, even than it was the duty of the trial Court to have provided another  experienced advocate of the choice of accused on state expenses or trial Court should have provided sufficient time to the accused to engage another defense counsel but it was not done by the trial Court. We have also noticed that statements of the accused were recorded U/S 342 Cr.P.C and accused refused to put their signatures, on the ground that they were not satisfied from the defense counsel provided to them on state expenses. Another illegality was committed by the trial Court, by not providing them the services of the advocate of choice.

5.                     Undeniably, to ascertain the truth or falsity to a charge the statements of the witnesses are to be judged by conducting the cross examination. It is always said to be the most powerful engine to test the credibility. Statements recorded without going through mill of cross-examination is bound to result in injustice to an accused. Safer principle is to allow cross-examination by granting reasonable opportunity. Similarly, provision of a defense counsel at State expenses should be out of lawyers having acumen, interest and some experience of trial of murder case. No doubt accused have no choice claiming engagement of a particular counsel at State expenses yet accused should be given the choice to select one of the counsel out of the list of the counsel maintained by the Court provided by the Bar. Statements of accused U/S 342 Cr.P.C are most important in criminal case. Accused are entitled to answer all the incriminating pieces of evidence. Trial Court has committed illegalities during trial, which are not curable in law.

6.                     For what has been discussed above and relying upon the case of Ghulam Rasool Shah and another v. The State (2011 SCMR 735) we allow the appeal partly, set aside the Judgment of the trial Court dated 24.10.2013 and remand back the case to the trial Court for recording evidence (examination-in-chief and cross-examination) of PW-09 Abdul Malik, in presence of defense counsel and recording of statements of accused U/S 342 Cr.P.C afresh in accordance with law.  Since this is an old case, trial Court is directed to decide it expeditiously under intimation to this Court. So far the confirmation reference is concerned, in the view of above development  reference is answered in negative.

                        The criminal Revision Application No. D-52 of 2019, Criminal Jail Appeal No. S-72 of 2019 and criminal appeals Nos.88, 89 and 90 of 2013 which are fixed today along with the instant criminal appeal, shall be fixed as per roster by the office.

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Irfan/PA