THE HIGH COURT OF SINDH AT KARACHI

Spl. Cr. A.T Jail Appeal No.20 of 2014

Spl. Cr. A.T Jail Appeal No.27 of 2014

Confirmation Reference No.03 of 2014

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants: Shujaat Ali alias Shajee son of Sarwar Ali and Muhammad Farhan son of Muhammad Sharif in Spl. Cr. ATJA No.20/2014 through Mr. Raj Ali Wahid Kunwar, Advocate

Shahzad Memon son of Muhammad Younis in Spl. Cr. A.T.J. A. No.27/2014 through Mr. Nadeem Memon, Advocate

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

Date of hearing: 11.01.2019

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellants Shujaat Ali @ Shahjee son of Sardar Ali, Mohammad Farhan son of Muhammad Sharif and Shahzad Memon son of Muhammad Yunis were tried by the learned Anti-Terrorism Court No.IV, Karachi in Special Case No.08 of 2011. On conclusion of trial, vide judgment dated 24.02.2014, appellants were convicted under Section 302(b), 365-A and 34 read with Section 7 of the Anti-Terrorism Act, 1997 and sentenced to death and forfeiture of their properties was also ordered. Trial Court made a reference to this Court for confirmation of death sentence as required under section 374 Cr.PC.

2. The prosecution case, shorn of unnecessary details, may be stated thus, on 20.08.2010 at 1800 hours complainant Muhammad Yar lodged FIR at P.S. Airport on 17.08.2010, stating therein that he is resident of Chak No.594, Tehsil Tandkianwala, District Faisalabad and was engaged in the business of Fruit and Rice Export business under the name and style ‘Hamza Enterprises’. His brother Muhammad Nawaz (now deceased) was also engaged in the said business. On 17.08.2010 at 07:00 p.m. Muhammad Nawaz told complainant that he was going to purchase ticket from Jinnah Terminal Airport. Thereafter, complainant continuously tried to contact his brother Muhammad Nawaz but his cell phone was found switched off. It is alleged that on 18.08.2010, a call was received on Cell No.0345-8664207. Muhammad Nawaz talked to complainant and informed him that he has been kidnapped for ransom of Rs.1Crore. Thereafter, the culprits remained in contact with complainant through Cell Nos.0312-3494518, 0324-2053098 and 03033155422 and finally the deal was settled at Rs.25,00,000/-. It is alleged that on 28.08.2010 at 2230 hours an amount of Rs.19,65,000/- was paid by Mst. Asma Ali wife of Muhammad Nawaz in presence of complainant and PW Rab Nawaz at G. Alana Road, near ICI Bridge to accused for release of her husband but on 30^th/31^st August 2010 at midnight, accused committed murder of Muhammad Nawaz and threw his dead body near PTCL Telephone Exchange, West Wharf Road, Karachi. FIR of the incident was lodged on 17.08.2010 bearing Crime No.370/2010 at P.S. Airport under sections 365-A/34, PPC. After completion of usual investigation, challan was submitted against accused Shujaat Ali alias Shajee, Shahzad Memon and Muhammad Farhan under sections 365A/34/302, PPC read with section 7 of the Anti-Terrorism Act, 1997.

3. Trial court framed charge against the accused Shujaat Ali @ Shahjee, Mohammad Farhan and Shahzad Memon under the above referred sections at Ex.7. All the accused pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined PW-1 Naveed Asghar, Judicial Magistrate at Ex.8, PW-2 Rafaqat Ali Mughal at Ex.9, PW-3 Ali Muhammad at Ex.10, PW-4 Abdal Muhammad at Ex.11, PW-5 Asma Ali at Ex.13, PW-6 Muhammad Yar at Ex.14, PW-7 Dr. Jagdesh Kumar at Ex.15, PW-8 Muhammad Babar at Ex.16. Thereafter, prosecution side was closed vide statement at Ex.17.

5. Trial court recorded statement of accused under section 342, Cr.PC at Ex.18, 19 and 20, in which all accused claimed false implication in this case and denied the prosecution allegations. Accused declined to give statement on oath and did not lead any evidence in defence.

6. Trial court after hearing the learned counsel for the parties and assessment of the evidence available on record, vide judgment dated 24.02.2014 convicted and sentenced the appellants as stated above, hence these appeals. By this single judgment, we intend to decide aforesaid appeals as well as the reference for confirmation of death sentence.

7. Mr. Raj Ali Wahid Kunwar, counsel for the appellants argued that all the pieces of evidence produced by the prosecution were weak and insufficient for recording death sentence to the appellants. Learned defence counsel further argued that two important pieces of evidence, one identification parade of the accused persons through eye witnesses and second DNA test of the deceased were not put to the accused in their statement recorded u/s. 342 Cr.PC for explanation. Learned counsel for the appellants pointed out that in para-20 of the judgment of the trial Court, conviction has been based on identification parade of accused but such piece of evidence was also not put to the accused for explanation. Learned counsel for the appellants prayed for acquittal of the appellants in the case.

8. Mr. Mohammad Iqbal Awan, learned DPG argued that this is the case of death sentence, it is true that material questions were not put to the accused at the time of recording their statement recorded u/s. 342 Cr.P.C. Learned DPG submitted that accused were identified in the identification parade through 03 eyewitnesses before whom ransom money was paid but such question was not put to the accused persons in their statements recorded u/s. 342 Cr.P.C. Learned DPG further argued that DNA test of deceased was produced in evidence but such question was not put to the accused while recording their statements u/s 342 Cr.PC for explanation. Learned DPG submitted that this is the fit case for remand to the trial Court for recording the statements of accused afresh in view of the dictum laid down in the case of MUHAMMAD SHAH versus THE STATE (2010 SCMR 1009).

9. We have carefully heard learned counsel for the parties and perused the entire evidence available on record. It is a matter of record that prosecution has examined the Judicial Magistrate Mr. Naveed Asghar, PW-1 who had conducted the identification parade of the accused through eye witnesses Mohammad Yar and Asma Baloch both eyewitnesses were examined before the trial Court but the question with regard to the identification parade of the accused was not put to the accused at the time of recording their statement u/s. 342 Cr.PC for explanation.

10. Statements of accused recorded under section 342, Cr.PC at Ex. 18 to 20 are reproduced as under:

”STATEMENT OF ACCUSED SHUJAAT ALI @ SHAHJEE UNDER SECTION 342 CR.P.C.

Q.No.1. You have heard the prosecution evidence, it has come on record that on 17.08.2009 at 1900 hours you along-with co-accused Shahzad Memon and Muhammad Farhan kidnapped Muhammad Nawaz son of Nawab Khan from inner Airport Traffic Signal, Quaid-e-Azam International Airport, Karachi, while he was coming from Lahore by Air and on 18.08.2010 you made a mobile phone call, using mobile phone of victim No.0345-8664207 on mobile phone of complainant No.0306-5139721 and demanded ransom amount of Rupees One Crore from him for safe release of his victim brother Muhammad Nawaz and thereafter you were continuously making mobile phone calls from mobile telephone numbers 0312-3494518, 0324-2053098 & 0303-3155422 on mobile telephone of complainant. What you have to say?

Ans. No Sir, All allegations in the evidence are false and managed.

Q.No.2 It has also come in evidence that on 28.08.2010 at 2230 hours, a ransom amount of Rs.19,65,000/- was paid to you by the wife of kidnapee/victim namely Mst. Asma Ali in the presence of complainant and PW-Rab Nawaz at G. Alana Road, near ICI Bridge, on your direction, for release of victim. What you have to say?

Ans. No Sir, it is also false.

Q.No.3. It has also come on record that on 30/31-08-2010 at midnight you committed Qatl-e-Amd of victim Muhammad Nawaz son of Nawab Khan and threw his dead body near PTCL Telephone Exchange, West Wharf Road, Karachi. What have you to say?

Ans. No Sir, it is also false and managed story.

Q.No.4. It has come on record that due to you this act created sense of fear, terrorism and insecurity in the minds of family members of victim Muhammad Nawaz son of Nawab Khan as well as people of the area. What you have to say?

Ans. No Sir,it is also false, no such alleged offence was taken place.

Q No.5. Why the PWs have deposed against you?

Ans. None of the PWs has deposed against me.

Q No.6. Do you want to lead any evidence in your defence?

Ans. No Sir.

Q No.7. Do you want to examine yourself on oath.

Ans. Nor Sir.

Q No.8. Do you want to say anything else?

Ans. I am innocent. I have falsey been implicated in alleged case. As and when the palm of the Investigating Officer not graced, I was booked in this case falsely. I pray for justice.”

”STATEMENT OF ACCUSED SHAHZAD MEMON UNDER SECTION 342 CR.P.C.

Q.No.1. You have heard the prosecution evidence, it has come on record that on 17.08.2009 at 1900 hours you along-with co-accused Shujaat Ali @ Shahjee and Muhammad Farhan kidnapped Muhammad Nawaz son of Nawab Khan from inner Airport Traffic Signal, Quaid-e-Azam International Airport, Karachi, while he was coming from Lahore by Air and on 18.08.2010 you made a mobile phone call, using mobile phone of victim No.0345-8664207 on mobile phone of complainant No.0306-5139721 and demanded ransom amount of Rupees One Crore from him for safe release of his victim brother Muhammad Nawaz and thereafter you were continuously making mobile phone calls from mobile telephone numbers 0312-3494518, 0324-2053098 & 0303-3155422 on mobile telephone of complainant. What you have to say?

Ans. No Sir, It is a false evidence against me and this is managed.

Ans. No Sir, it is also false.

Ans. No Sir, it is also false and managed story.

Ans. No Sir,it is also false, no such alleged offence took place.

Q No.5. Why the PWs have deposed against you?

Ans. None of the PWs has deposed against me.

Q No.6. Do you want to lead any evidence in your defence?

Ans. No Sir.

Q No.7. Do you want to examine yourself on oath.

Ans. Nor Sir.

Q No.8. Do you want to say anything else?

Ans. I am innocent. I have falsely been implicated in this case. Being respectable citizen I run my own business of importing garments and due to non-payment of illegal gratification to Investigating Officer I have been booked in this false case. I pray for justice.”

STATEMENT OF ACCUSED MUHAMMAD FARHAN U/S. 342 CR.P.C.

Q.No.1. You have heard the prosecution evidence, it has come on record that on 17.08.2009 at 1900 hours you along-with co-accused Shujaat Ali @ Shahjee and Shahzad Memon kidnapped Muhammad Nawaz son of Nawab Khan from inner Airport Traffic Signal, Quaid-e-Azam International Airport, Karachi, while he was coming from Lahore by Air and on 18.08.2010 you made a mobile phone call, using mobile phone of victim No.0345-8664207 on mobile phone of complainant No.0306-5139721 and demanded ransom amount of Rupees One Crore from him for safe release of his victim brother Muhammad Nawaz and thereafter you were continuously making mobile phone calls from mobile telephone numbers 0312-3494518, 0324-2053098 & 0303-3155422 on mobile telephone of complainant. What you have to say?

Ans. No Sir, it is a false case registered against me.

Ans. No Sir, it is also false and concocted.

Ans. No Sir, it is also false and managed story.

Ans. No Sir,it is also false, no such offence took place by me.

Q No.5. Why the PWs have deposed against you?

Ans. None of the PWs has deposed against me.

Q No.6. Do you want to lead any evidence in your defence?

Ans. No Sir.

Q No.7. Do you want to examine yourself on oath.

Ans. Nor Sir.

Q No.8. Do you want to say anything else?

Ans. I am innocent and pray for justice. I have falsely been involved in this case”

11. Learned counsel for the appellants referred to the judgment of the trial Court, in which trial Court has relied upon the piece of evidence relating to the identification parade for conviction but that piece of evidence was not put to the accused persons. Relevant portion of judgment is reproduced as under:

“Since this is a case of heinous offence, after thorough examination and the deep perusal of testimony of all witnesses including IO shows that there are minor contradictions which can be ignored in the cases of such heinous offences while the chain of statements of most PWs are consistent and over all it does not fatal the case of the prosecution and it proved that the incident was taken place for ransom and then murder of victim/deceased was committed as per evidence brought on record by examining the PWs by the prosecution. However, all the above named accused have been assigned specific role by PW-5 Asma Ali (who is wife of victim/deceased), PW-6 Muhammad Yar (the brother of victim) before the learned Judicial Magistrate, by stating that they are the culprits, to whom victim’s family paid ransom amount Rs.19,65,000/- at Naval Colony Gate where seven accused came on three motorcycles and they also snatched their mobile phones and went away even before this Court. In this regard the learned Judicial Magistrate has also been examined who also supported the version of PWs by stating that accused were correctly and rightly identified by the PWs while stating the same facts mentioned above in respect of payment of ransom to accused while picking the accused persons amongst the dummies during identification parade held by him. Having no rebuttal by the defence, the evidence of those witnesses could not be treated as shaken.

Apart from this, accused Shujaat Ali, Farhan and Shahzad were arrested on 07.12.2010 from Natty Jetty Bridge on the spy information by the investigation officer with the help of his subordinate staff/police officials after making Nakabandi by him and accused were in Prado Jeep having Registration No.Abid-1 TMA-9819, as the same fact has been stated above by PW SIP Rafaqat Ali Mughal. Whereas it is evident from the evidence of PW Inspector Ali Muhammad and SIP Abdal Mohammad, accused after abduction of victim/deceased Muhammad Nawaz, put the dead body in the bag and thrown the same near PTCL Exchange Road, within the jurisdiction of PS Jackson, Karachi as they supported the corroboration of investigation officer in respect of abduction and murder of deceased victim, hence the points mentioned above 1 to 4 are discussed as proved”.

12. It is important to observe that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.PC in which the words used are “For the purpose of enabling the accused to explain any circumstances appearing in evidence against him” which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means Examination-in-Chief, cross-examination and re-examination, as provided under Article 132 read with Article 2(c) and 71 of the Qanun-e-Shahadat Order, 1984. The perusal of statements of the appellants, under section 342, Cr.PC reveal that the portion of the evidence relating to the identification parade was not put to the accused in their statements recorded under Section 342, Cr.PC enabling them to explain the circumstances particularly when the same was abandoned by them. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.PC then the same cannot be used against him for his conviction. In this case the trial Court without realizing the legal position not only used the above portion of the evidence against the appellants, but also convicted them on such pieces of evidence, which cannot not be sustained.

13. Honourable Supreme Court in an unreported judgment in Criminal Appeal No.292 of 2009 dated 28.10.2010 in the case of MUHAMMAD HASSAN versus THE STATE held as under:-

“3. In view of the order we propose to pass there is no occasion for going into the factual aspects of this case and it may suffice to observe that the case of the prosecution against the appellant was based upon prompt lodging of the F.I.R., statements of three eyewitnesses, medical evidence, motive, recovery of weapon of offence and a report of the Forensic Science Laboratory regarding matching of some of the crime-empties with the firearm allegedly recovered from the appellant’s possession during the investigation but we have found that except for the alleged recovery of Kalashnikov from the appellant’s possession during the investigation no other piece of evidence being relied upon by the prosecution against the appellant was put to the appellant at the time of recording of his statement under section 342, Cr.PC.

4. It is by now a settled principle of criminal law that each and every material piece of evidence being relied upon by the prosecution against an accused person must be put to him at the time of recording of his statement under section 342, Cr.PC so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused person defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a trial. The case in hand is a case of murder entailing a sentence of death and we have truly been shocked by the cursory and casual manner in which the learned trial Court had handled the matter of recording of the appellant’s statement under section 342, Cr.PC which statement is completely shorn of the necessary details which were required to put to the appellant. We have been equally dismayed by the fact that even the learned Judges of the Division Bench of the High Court of Sindh deciding the appellant’s appeal had failed to take notice of such a glaring illegality committed by the trial Court. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely an irregularity curable under section 537, Cr.PC but the same was a downright illegality which had vitiated the appellant’s conviction and sentence recorded and upheld by the learned Courts below.”

16. In the case of MUHAMMAD NAWAZ and others Versus The STATE AND OTHERS (2016 SCMR 267) Honourable Supreme Court of Pakistan has observed as under:-

“………….While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence.”

17. In the present case, there is no occasion for going into the factual aspects of this case as it may suffice to observe that case of prosecution against the appellants is based on different pieces of evidence but material pieces of evidence such as identification parade and DNA report were not put to the accused at the time of recording their statement under section 342, Cr.PC so as to provide them an opportunity to explain their position in that regard and denial of such opportunity to the accused persons defeated the ends of justice, therefore, a miscarriage of justice has occurred in the case. Illegality committed by the trial Court is not curable under section 537, Cr.PC. Thus, it has vitiated the trial. Hence, impugned judgment is liable to be set aside on this ground alone.

18. Trial Court has also passed erroneous judgment. Trial Judge had failed to specify the offences and sentences separately. Provisions of Section 367, Cr.PC are mandatory in nature. The object of section 367, Cr.PC is to let the accused and the Appellate Court know that trial court applied its judicial mind on the ingredients of offences separately, while passing the judgment.

19. In view of the illegalities and omissions committed by the trial Court, we have no option except to set aside the conviction and sentence recorded by the trial court vide judgment dated 24.02.2014 and remand the case back to the trial Court for recording the statements of accused under section 342, Cr.PC afresh by putting all the incriminating pieces of evidence against the accused for their explanations/replies. Trial Court shall decide the case on merits in view of above observations within three months of receipt of this judgment in accordance with law. Reference for confirmation of death sentence made by the trial is answered in negative.

20. To avoid delay in disposal of the case, trial court is directed to fix the case on 26.01.2019. Trial Court is further directed to issue P.O. for accused, notice to the complainant and counsel for accused.

Appeals are disposed of in above terms.

J U D G E

Gulsher/PS