THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.188 of 2022

Confirmation Case No.03 of 2022

Criminal Jail Appeal No.243 of 2022

Criminal Jail Appeal No.263 of 2022

Criminal Revision Application No.154 of 2022

 

                            Present:       Mr. Justice Naimatullah Phulpoto

                                                                                    Mr. Justice Shamsuddin Abbasi

 

Appellants                          :             Bilal alias Abbas, Shahid Qureshi, Zubair and Israr alias Nannu through Syed Iftikkhar Ahmed Shah, advocate

 

Complainant                         :           Muhammad Hanif Bandhani, through Peer        Syed Asadullah Rashidi & Salahuddin            Chandio, advocates

 

  Respondent                         :           The State through Mr. Muhammad Iqbal            Awan, Additional Prosecutor General Sindh

 

Date of Hearing                :               20.02.2023

Date of decision                :              20.02.2023

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- Appellants/accused, namely, Bilal alias Abbas, Shahid Qureshi, Zubair and Israr alias Nannu were tried by learned 1st Additional Sessions Judge/Model Criminal Trial Court-I, Karachi Central in Sessions Case No.596/2021, arising out of FIR No.122/2021, registered at P.S. Sharifabad, Karachi for offences under sections 302, 392, 397, 34, PPC. On the conclusion of trial, appellants were found guilty, they were convicted and sentenced vide judgment dated 10.03.2022 as under:

 

a.   Accused Bilal alias Abbas is convicted under section 265-H(ii) Cr.P.C for offence under section 302 (b) PPC and sentenced to death as Ta'zir, he shall be hanged by the neck till he is dead, as he has snatched the valuable articles from PW Zeeshan and deceased Osama and then caused direct single shot fire at deceased Osama and offence had been committed against a young boy of 18 years age, in a brutal, flagitious, ruthful and atrocious manner, which warrants maximum punishment.

 

b. Accused Bilal is further convicted for commission of offence u/s 397 PPC and sentenced to suffer RI for 05 years.

 

c.   Accused Zubair s/o Saleem, Shahid Qureshi s/o Abdul Majeed and Israr alias Nanno s/o Manzoor Shah, being companion, supporters and sharing common intention in commission of offence with main accused Bilal, are convicted u/s 302 (b)/34 PPC and sentenced to suffer life imprisonment.

d.   All accused are extended benefit of section 382-B Cr.P.C for the period already remained in custody in this case.

 

e.   In view of case of Talib Hussain and others v/s The State 1995 SCMR 1776 all the above named accused are further directed under section 544-A Cr.P.C, to pay compensation to the legal heirs of deceased Osama Saeed son of Saeed to the sum of Rs.20,00,000/- each accused (Rupees Twenty lacs only) and in case of default they shall suffer SI for 06 months more.

 

            Trial Court has made reference for confirmation of death sentence awarded to appellant Bilal alias Abbas as required by the law. Appeals were admitted to regular hearing.

 

2.         Brief facts of the prosecution as mentioned in the impugned judgment are that on 20.2.2021 deceased Osama came on his car AYT- 355 Toyota Corolla Silver Colour at the workshop of Zeeshan and Farhan, namely, Al-Raheem Autos at about 2015 hours. When Osama was sitting on the driving seat and Zeeshan was sitting on front seat of said vehicle and were scanning it. At about 2110 hours one person came and knocked the door on driving side. Osama opened the door. One unknown person aimed his pistol at Osama and asked to handover valuables. He handed over his I-phone with two SIMS and his purse to said accused. Zeeshan also handed over his purse to the same accused. The said unknown person returned to motorcycle parked nearby where one other person was on it. The said unknown accused consulted with him at motorcycle and returned back to them (Osama and Zeeshan). Said unknown accused came back and made straight fire at Osama Saeed. Injured Osama was shifted to Usman Memorial Hospital and then to Agha Khan Hospital where he died. Then complainant has lodged FIR against unknown accused. After usual investigation, final reports were submitted before the competent court of law. Trial Court.

 

3.         Trial Court framed charge against appellant Muhammad Imran under sections 302, 392, 397, 34, PPC. Appellants pleaded not guilty and claimed to be tried.    

 

4.         At trial, prosecution examined 16 prosecution witnesses. Thereafter, prosecution side was closed. 

 

5.         Trial court recorded statement of accused under section 342 Cr.PC. Appellants claimed false implication in the case and denied the prosecution allegation and raised plea that they have been falsely involved in this case by complainant. Appellants did not lead any evidence in the defence and declined to give statement on oath is disproof of prosecution allegations.

 

6.         Trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 10.03.2022 convicted the appellants and sentenced them as stated above. Hence, appellants filed this appeals. Complainant filed Criminal Revision Application No.154 of 2022 for enhancement of sentence to the appellants/respondents, namely, Bilal alias Abbas, Zubair, Shahid Qureshi and Israr alias Nanno. Notices were issued to the respondents. By this single judgment, we intend to decide the aforesaid appeals, criminal revision application as well as Confirmation Reference No.03 of 2022 made by trial court.

 

7.         Learned counsel for the appellant at the very out set submitted that the trial Court has committed illegalities while conducting the trial which vitiated the trial. Learned advocate for the appellants referred to the evidence of Muhammad Hanif Bandhani (PW.1), Niaz Hussain Jokhio (PW.11), Dr. Shiri Chand, MLO (PW.12) and SIP Gul Bahar Khoso (PW.14). It is argued that examination-in-chief of these witnesses has been recorded in absence of the defence counsel, which is evident from the depositoni of these prosecution witnesses. Learned advocate for the appellant has also referred the case diaries of the relevant dates in order to show that the advocate for appellants Bilal alias Abbas, Zubair, Shahid Qureshi and Israr alias Nanno was not present on that date, despite that the examination-in-chief of the said PWs was recorded on that date by the trial Court.

 

8.         Learned Additional Prosecutor General Sindh assisted by the learned counsel for the complainant, in presence of the complainant, supported the submissions made by the learned advocate for the appellants that examination-in-chief of the aforesaid four PWs was recorded in absence of the defence counsel.

 

9.         From perusal of the prosecution evidence, it transpires that examination-in-chief of Muhammad Hanif Bandhani (PW.1), Niaz Hussain Jokhio (PW.11), Dr. Shiri Chand, MLO (PW.12) and SIP Gul Bahar Khoso (PW.14) was recorded by the trial Court in absence of defence counsel. This fact is supported by the case diaries of the relevant dates. Offence under section 302, PPC is punishable for death or imprisonment for life. Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, reads as under:

 

“Article 10-A (Right to fair trail) : For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to fair trial and due process”.

 

10.       Under Section 340, Cr.PC the accused is entitled as matter of right to be provided a Pleader on State expenses. Sections 340, Cr.PC reads as under:

 

“340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness: (1) Any person accused of an offence before a Criminal Court, or against, whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

           

11.       Circular 6 of Chapter VII of the Federal Capital and Sindh Courts Criminal Circulars provides that services of defence counsel shall be provided to the appellant in the cases of capital punishment. The said circular reads as under:-

 

"6. In all cases in a Court of Session in which any person is liable to be sentenced to death, the accused shall be informed by the Committing Magistrate at the time of committal, or if the case has already been committed by the Sessions Court that, unless he intends to make his own arrangements for legal assistance, the Sessions Court will engage a Legal practitioner at Government expense to appear before it on his behalf. If it is ascertained that he does not intend to engage a legal representative at his own opense, a qualified Legal Practitioner shall be engaged by the Sessions Court concerned to undertake the defence and his remuneration, as well the copying expenses incurred by him, shall be paid by Government.

 

The appointment of an advocate or pleader for defence should not be deferred until the accused has been called upon to plead. The Advocate or pleader should always be appointed in sufficient time to enable him to take copies of the deposition and other necessary papers which should be furnished free of cost before the commencement of the trial. If after the appointment of such legal representative the accused appoints another Advocate or pleader, the Advocate or pleader appointed by the Court may still in its discretion be allowed his fee for the case."

 

12.       Rule 35 of the Sindh Chief Court Rules also (Appellate Side) also deals with the same subject which reads as under:--

 

"35. In what matters Advocate appointed at Government cost. When on a submission for confirmation under section 374 of the Code of Criminal Procedure, 1898, or on an appeal from an acquittal or on an application for revision by enhancement of sentence the accused is undefended, an Advocate shall be appointed by the Division Court to undertake the defence at the cost of Government in accordance with the Government notification or rules relating thereto. Such Advocate shall be supplied a copy of the paper book free of cost."

 

 

13.       From the above position, it is clear that a fair opportunity shall be provided to the appellant at the time of recording the examination-in-chief of the above named four prosecution witnesses. If the defence counsel for accused would have been present, possibility cannot be ruled out that he might have raised some objections. Thus, it is the mandate of the law that cases involving capital punishment shall not be tried in the absence of Advocate for the accused. Reliance has been placed by the learned advocate for the appellant in the case of SHAFIQUE AHMED alias Shahjee versus THE STATE (PLD 2006 Karachi 377). Relevant portion is reproduced as under:

 

“13. From the above position it follows that an accused is required to be defended by a counsel of his choice as a matter of right. If an Advocate appears on behalf of the accused then he is required to be allowed to defend the accused. In an offence involves capital punishment, the law protects the rights of the accused as a duty has been cast upon the State to bear the expense of the Advocate if the accused is unable to engage an Advocate. When the committal proceedings were being conducted then at the time of committing the accused to the Court of Session the Magistrate was required to inquire from the accused as to whether he would like to engage Advocate of his choice and in case he was unable to do so then the accused was required to be informed that the Sessions Court would provide him an Advocate on State expense to defend his case. The committal proceedings have been abolished. Therefore, now the Magistrate, before the case is sent up to the Court of Session, shall inquire from the accused about the requirement of Circular 6 of the Federal Capital and Sindh Courts Criminal Circulars. Such facts should be mentioned in the diary to facilitate the Court of Session to decide in which cases a counsel on State expense is required to be appointed. In other cases or in which the Magistrate has not obtained the required information, as soon as the accused appears before the Court of Session, it is the duty of the said Court to ascertain whether the accused is represented by an Advocate or otherwise. If he is not being represented by an advocate then the Sessions Court is bound to engage a legal practitioner on Government expense to defend the accused. It is one of the duties of the Court of Session to see that the accused is represented by a qualified legal practitioner in the cases involving capital punishment. Thus, it is the mandate of the law that cases involving capital punishment shall not be tried in the absence of Advocate for the accused or proceeded with. Without first appointing an Advocate for the accused to defend him if he is unable to do so.”

 

14.       In the view of above, it appears that the trial Court has not acted diligently and recorded the examination-in-chief of four prosecution witnesses named above in absence of the defence cousel by neglecting Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, Section 341 of the Code Criminal Procedure, 1898 and Circular 6 of Chapter VII of the Federal Capital and Sindh Courts Criminal Circulars. Not only this, the learned advocate for the appellants has also pointed out the illegalities committed by the trial Court while recording the impugned judgment. Rightly, it is argued that the appellants were prejudiced in the trial and defence, therefore, a miscarriage of justice has been committed in the case. The procedure adopted by the trail Court was illegal, thus it vitiates trial, hence the impugned judgment is to be set aside.

 

15.       In the right of above discussions and legal position, conviction and sentence awarded to the appellant through the impugned judgment are set aside and the case is remanded to the trial Court for re-trial from the stage of recording of evidence of four PWs, namely, Muhammad Hanif Bandhani (PW.1), Niaz Hussain Jokhio (PW.11), Dr. Shiri Chand, MLO (PW.12) and SIP Gul Bahar Khoso (PW.14) and, that too, in presence of the advocate for the appellants, in accordance with law. In case, advocate for the appellants fails to appear despite opportunities, trial Court shall provide the service of defence counsel to the appellants on State expenses as provided in law. 

 

16.       The appeals are allowed to the above extend. The appellants shall be treated as under trial prisoners. So far as the Confirmation Reference is concerned, the same is answered in negative.

 

17.       The criminal revision application No.154 of 2022 is accordingly disposed of.

 

                                                                                                        J U D G E

J U D G E

Gulsher/PS