Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D – 97 of 2012

Confirmation case No.D-12 of 2012

Criminal Jail Appeal No. S-99 of 2012

Present.

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Khadim Hussain Tunio.

Date of hearing: 20.11.2019

M/S A.R Faruq Pirzado and Ghulam Hyder Daudpoto counsel for appellant Shah Muhammad in criminal Jail Appeal No.D-97 of 2012.

Mr. Nadeem Ahmed Malik Advocate for appellant Qurban Ali in Cr. Jail Appeal No.S-99 of 2012

Mr. Zulifqar Ali Jatoi Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. Shah Muhammad and Qurban Ali both sons of Ali Nawaz appellants were tried by learned Additional Sessions Judge Gambat in Sessions case No. 373 of 2007. After regular trial vide Judgment dated 10.11.2012, both appellants were convicted under section 302 (b) PPC. Appellant Shah Muhammad was sentenced to death whereas appellant Qurban Ali was sentenced to imprisonment for life. Both appellants were directed to pay compensation of Rs. 100,000/- (one lac) each as provided under section 544-A Cr.P.C to be paid to the legal heirs of deceased Sher Muhammad, in case default thereof both appellants were ordered to suffer further S.I for six months more. However, death sentence awarded to appellant Shah Muhammad was subject to confirmation by this Court. Both appellants were also convicted under section 324 PPC and sentenced to 10 years R.I. Both appellants were directed to pay fine of Rs. 5000/- each, in case of default in payment of fine amount both accused were directed to suffer S.I for one month more. Appellant Qurban Ali was also convicted for causing injuries to Mst. Darya Khatoon Under Sections 337-F(i), 337-F(iii) and 337-F(v) PPC for three years and five years respectively and he was imposed fine of Rs. 15,000/-, Rs.25,000/- and Rs.30,000/- respectively to be paid to injured Mst. Darya Khatoon, in case of default in payment of fine accused Qurban was ordered to suffer S.I for one month more respectively. Trial Court made reference to this Court for confirmation of death sentence awarded to the appellant Shah Muhammad as required under Section 374 Cr.P.C. All the sentences were directed to run concurrently. 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.

2. Mr. Abdul Rehman Faruq Pirzado Advocate for appellant Shah Muhammad and Mr. Nadeem Ahmed Malik Advocate for appellant Qurban Ali, at the very outset, argued that impugned judgment is not sustainable under the law. Mr. Pirzada referred to the evidence of P.Ws Nos.1 and 2 and argued that evidence of PWs Nos. 1 and 2 was recorded by the trial Court, in absence of defense counsel. He further argued that offence U/S 302 PPC carries capital punishment and trial of the accused in absence of defense counsel in murder case is against the law. He further submitted that during the statements of the accused recorded U/S 342 Cr.P.C all the incriminating pieces of evidence were not put to the accused, which caused prejudice to the case of appellants. Mr. Pirzada prayed that impugned judgment may be set aside and case may be remanded to the trial Court for providing a fair opportunity to defense counsel for cross examination of the PWs Nos. 1 and 2. It is submitted that in absence of cross examination, case of appellants has been seriously prejudiced. In support of his contentions, he relied upon the cases of The State vs. Ghulam Ali and 5 others (P L D 1975 Karachi 90), Syed Saeed Muhammad Shah and another vs. The State (1993 SCMR 550) and Abdul Rauf vs. The State (PLD 2001 Lahore 463).

3. Mr. Zulifqar Ali Jatoi Additional P.G conceded to the contentions raised by learned advocate for appellants and frankly stated that evidence of PWs has been recorded by trial Judge in a very casual manner, in absence of defense counsel in the offence of capital sentence. Additional P.G further pointed out that trial Court failed to record statement of the accused U/S 342 Cr.P.C as required by the law. Additional P.G argued that question of motive was not put to the accused, chemical and ballistic reports were not produced during the trial. Additional P.G submits that no doubt it has come on record that chemical and ballistic reports were burnt in an incident but learned Additional P.G submits that it was not difficult for the prosecution to collect copies of reports from the chemical and ballistic offices. Additional P.G further pointed out that reports of chemical and ballistic experts were not produced during trial and incriminating piece of evidence such as question of motive and empties were also not put to the accused. Additional P.G also prayed for remand of the case for deciding it in accordance with law.

4. We have carefully heard learned counsel for the parties and perused R & Ps. It appears that evidence of PW-1 Dr. Manzoor Ali has been recorded by the trial Court at Exh.6. On the said date, defense counsel was not present. Evidence of PW-2 Ali Akber was also recorded at Exh.9 in absence of defense counsel. There is no denial of the fact that cross-examination is most valuable right of an accused and is the only vehicle through which the truth or falsity of the witnesses can be determined. We are also conscious of the fact that if the prosecution witnesses were not cross examined through defense counsel particularly in the murder case then accused persons’ case can be seriously prejudiced. Cross examination is a specialized job, which can only be made by a counsel. We find that in this case, defense counsel was absent on the dates, when the evidence of PWs 1 and 2 was recorded. Trial Court failed to provide a fair opportunity to the accused to engage another advocate. In the case of Ghulam Rasool Shah and another vs. The State (2011 SCMR 735) the Hon’ble Supreme Court has held as under:-

“14. Undeniably, to ascertain the truth or falsity to a charge the statements of witnesses are judged by conducting 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 and substantial injustice may occur 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. Though the accused have no choice claiming engagement of a particular counsel at State expenses yet he should be given the choice to select one of the counsel out of list of defense counsel maintained by the Court”.

5. Moreover, this Court in the case of Shafique Ahmed alias Shahjee vs. The State (PLD 2006 Karachi 377) held that trial Court did not perform its function diligently as in the beginning trial commenced in the absence of Advocate of both the appellants. Only two witnesses were examined in the presence of Advocate for the appellant Shafique. The remaining witnesses were also examined in the absence of Advocates for the appellants. As such, the appellants were prejudiced in their trial and defense, therefore, a miscarriage of justice has occurred in the case. The procedure adopted by the trial Court is an illegal procedure, that cannot be cured under section 537 Cr.P.C.

6. In the light of what has been discussed above, since serious prejudice has been caused to the appellants by the trial Court and the manner in which trial has been conducted was a very casual attitude on the part of learned trial Judge, appeals are partly allowed. The conviction and sentence awarded to the appellants through impugned judgment are set aside. The case is remanded back to the trial Court with directions to provide a fair opportunity to defense counsel for cross examination of PWs Nos. 1 and 2 and recording of the statement of the accused U/S 342 Cr.P.C afresh, keeping in view the above observations made here in above. After hearing learned counsel for the parties, trial Court shall pass fresh judgment, in accordance with law. As the case is old one, Trial Court is directed to decide the case on merit within three months under intimation to this Court.

7. In view of the above, both criminal Jail Appeals are disposed of in above terms and confirmation Reference made by the trial Court is answered in negative.

J U D G E

J U D G E

Irfan/PA