IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No. S- 277 of 2019

 

Adam Shar and another..….……………………….. ..……….…….Appellants

Versus.

The State………….……………………….……………….………..………Respondent

 

 

For the Appellants:                        Mr. Ubedullah K.Ghoto Advocate.

 

For the Complainant:                    Mr. Ali Ahmed Khan Advocate.

 

For the State:                                  Mr. Aftab Ahmed Shar, Additional P.G

                                                            for the State.

 

Dates of Hearing:   26-04-2021

Date of Judgment:             26-04-2021

 

 

                                                J U D G M E N T

Aftab Ahmed Gorar J., Appellants Adam Shar and Esso Shar were tried by learned 1st Additional Sessions Judge/Model Criminal Court/Camp at Central Prison, Sukkur in Sessions Case No.259 of 2018 re: State-Versus Khairo alias Khair Muhammad and others, arising out of Crime No. 06 of 2001, registered at P.S, Wasti Jeewan Shah under Sections 302, 148 & 149 PPC and vide judgment dated 23.11.2019, appellants were convicted for offence under Section 302(b) PPC and sentenced to imprisonment for life with fine of Rs.300,000/-each to be paid to the legal heirs of deceased in terms of Section 544-A Cr.P.C and in case of default, to suffer imprisonment for 03-months more. The appellants were extended benefit of Section 382-B Cr.P.C.

2.        Charge against the appellants is that on 09.02.2001 at 11:00 a.m, near the Otaq of accused Nalechango Shar, present appellants in association with absconding co-accused Mehboob, Goro, Nalechango Shar, Rais Allah Warrayo alias Papoo Shar and Khairo alias Khair Muhammad having armed with deadly weapons in prosecution of their common object, made straight firing upon Laloo alias Lallan Shar, which resulted in his death. Consequently, above FIR was lodged.

3.        Charge was framed against appellants, to which they pleaded ‘not guilty’ and claimed to be tried. At the trial, prosecution examined prosecution witnesses and thereafter statements of appellants were recorded in terms of Section 342 Cr.P.C, to which they denied the prosecution allegations and claimed to be innocent. However, appellants did not opt to examine themselves on oath nor lead any evidence in their defence.

3.        On the conclusion of trial, learned trial Court heard the counsel for the parties and after assessment of the evidence convicted and sentenced the appellants vide impugned judgment, hence the appellants preferred instant appeal through jail.

4.        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.

5.        At the very outset, learned counsel for the appellants, learned counsel appearing on behalf of the complainant as well as Additional P.G jointly pointed out the following illegalities committed by the learned trial Court and prayed for remand of case to trial Court.

There was a piece of evidence in the shape of preparation of inquest report of deceased so also recovery of four empty cartridges of 7.62 bore and blood stained earth from the place of occurrence.

6.        As regards to the above submission that the material piece of evidence being relied upon by the prosecution against the appellants was not put to them at the time of recording their statements under Section 342, Cr.P.C. For the sake of convenience, statement of one of the appellants recorded under Section 342, Cr.P.C at Ex.23, is reproduced as under:

Dated 31.10.2019                                                     Ex. No:23

            IN THE COURT OF 1st ADDL. SESSIONS JUDGE/M.C.T.C, SUKKUR.

S.C No.259/2018.

     The State

V / s

Khairo @Khair Muhammad and others.

Crime No.06/2001

P.S.W.J.Shah.

U/S 302 PPC etc.

Name                          :           Esso

Father’s Name                        :           Shahoo.

Caste:                          :           Shar

Religion                       :           Islam

Age about                    :           60 years

Occupation                  :           Cultivation

Residence        :                       Haji Q abil S har village, Taluka

                                                Ubauro, Distt: Ghotki.

                        Examination of accused

Q. No: 01         You have heard the prosecution evidence, wherein it is deposed that on 09.02.2001 at 11:00 a.m, you a/w absconding accused, in furtherance of common intention being armed with deadly weapons have committed Qatl-i.Amd of deceased Laloo alias Lallan Shar, by causing firearm injuries, hence, what you have to say?

Ans:                 No Sir. It is a false.

Q. No. 2           You have heard the prosecution evidence wherein it is deposed that deceased Laloo @Lallan Shar died due to firearm injuries caused by you hence what you have to say?

 

Ans:                 No Sir. It is false.

 

Q. No. 3           Why the PWs have deposed against you?

 

Ans:                 They are close relatives of complainant, hence interested.

 

Q. No.4.           Do you want to examine yourself on oath?

Ans:                 No Sir.

 

Q.No.5.            Do you want to produce any evidence in your defence?

Ans:                 No Sir.

 

Q. No.6.           Have you to say anything else?

Ans:                 I am innocent. I produce FIR No.43/2011, u/S 302 PPC of P.S Wasti Jeewan Shah, where Mashir Ali Sher Shar is one of accused with us in that case. Neither I was present at spot nor I shot fire arm injury to deceased. Complainant has falsely implicated. I pray for justice.

Sd/ Dated:31.10.2019

   (ZAKAULLAH ABRO)

1st. Addl. Sessions Judge/M.C.T.C,Sukkur

7.        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 has been held by Hon’ble Supreme Court in an unreported judgment dated 04.03.2021, passed in Criminal Appeal No. 77 of 2020 in the case of Jan Muhammad v. The State. Relevant portion is reproduced as under:

“5. It has been observed by us with concern that none of the afore-mentioned pieces of evidence has been put to the appellant while examining him under section 342, Code of Criminal Procedure. It has been laid down many a time by this Court that a piece of evidence produced by the prosecution against an accused if not put to accused while examining him under section 342, Code of Criminal Procedure cannot be used against him. The rationale behind it is that the accused must know and then respond to the evidence brought against him by the prosecution. He (accused) must have firsthand knowledge of all the aspect of the prosecution case being brought against him. It appears that even the learned Judge in chambers of High Court while reappraising evidence available on record did not consider this aspect of the matter. Keeping in view the peculiar circumstances of the case, learned counsel for the appellant and learned Additional Prosecutor General, Sindh assisted by widow of deceased are in agreement that the matter needs to be remanded to the learned trial  Court for re-recording statement of appellant under section 342, Code of Criminal Procedure while putting all pieces of prosecution evidence produced during trial to him, giving him an opportunity to know and respond to the same”.

8.        I have perused the judgment of the trial Court as well as evidence available on record and observed that during course of investigation, inquest report of deceased was prepared so also four empty cartridges of 7.62 bore and blood stained earth were secured from the place of occurrence, therefore, it is also equally settled that a failure to comply with this mandatory requirement vitiates the trial. The case in hand is a case of murder entailing a sentence of death and I am shocked by the cursory and casual manner, in which learned trial Court had handled the matter of recording of the appellants’ statements under Section 342, Cr.P.C, which statements are completely shorn of necessary details which are required to put to the appellants. While respectfully relying upon above cited judgment of Hon’ble Supreme Court, I have no hesitation to hold that omissions on the part of the trial Court mentioned above were not merely irregularities curable under Section 537, Cr.P.C, but the same were downright illegalities which have vitiated the appellants’ conviction and sentence recorded by the trial Court. Trial Court has rendered judgment in violation of statutory provisions of Section 367, Cr.P.C, as such it is not sustainable.

9.        For the above stated peculiar circumstances of the case and by consent of leaned counsel for the parties, instant Crl. Jail Appeal No.S-277 of 2019 is partly allowed. Conviction and sentence recorded by the learned trial Court, vide judgment dated 23.11.2019 are set aside. The appellants shall be treated as under-trial prisoners. The case is remanded back to the trial Court with directions to record the statements of appellants under Section 342 Cr.P.C afresh by putting them all pieces of prosecution evidence, enabling them to know and respond to the same and shall decide the case after hearing the parties, within one month of the receipt of this judgment.

10.      In the view of above, aforesaid Crl. Jail Appeal is disposed of in the above terms.

J U D G E

Ahmad