Special Criminal Anti-Terrorism Appeal No.01 of 2018
Special Criminal Anti-Terrorism Appeal No.02 of 2018
Special Criminal Anti-Terrorism Appeal No.05 of 2018
Confirmation Case No.01 of 2018
Present: Mr. Justice Naimatullah
Phulpoto
Mr.
Justice Rasheed Ahmed Soomro
Appellants: Abdul Rasheed alias Zahid son of Abdul Waheed and Nadeem son of Abdul Rasheed through
Mr. Hashmat Khalid, advocate
Zeeshan alias Mani son of Muhammad Sharif through Mr. Mehmood A. Qureshi, advocate
Respondent: The State through Mr.
Muhammad Iqbal Awan, Deputy
Prosecutor General Sindh.
Date of
Hearing: 01.10.2018
Date of
Announcement: 08.10.2018
J U D G M E N T
NAIMATULLAH PHULPOTO, J.- Abdul Rasheed alias Zahid, Nadeem and Zeeshan alias Mani, appellants, were tried by learned
Judge, Anti-Terrorism Court-VI, Karachi in Special Cases Nos.B-87 and B-88 of
2015. On conclusion of trial, vide judgment dated 23.12.2017, appellants were
convicted and sentenced as under:-
(1)
Accused Abdul Rasheed
alias Zahid son of Abdul Waheed,
Nadeem son of Abdul Rasheed
and Zeeshan alias Maani son
of Muhammad Shareef are convicted under section 7(1)(a) of the Anti-Terrorism Act, 1997, read with section
302(b), PPC and they are awarded death sentence, to be hanged till their death,
with compensation of Rs.5,00,000/- (Five lacs) each
to be paid to the legal heirs of the victim.
(2)
Accused Abdul Rasheed
alias Zahid son of Abdul Waheed,
Nadeem son of Abdul Rasheed
and Zeeshan alias Maani son
of Muhammad Shareef are also guilty of an offence
under section 367, PPC and they are convicted and awarded to suffer Rigorous
Imprisonment for five years and fine Rs.50,000/- each, in default, they shall
service six months more.
(3)
Accused Abdul Rasheed
alias Zahid son of Abdul Waheed
is also convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and he is
sentenced to undergo R.I. for 7 years, with fine of Rs.10,000/-, in case of
default in payment of fine, he shall suffer a simple imprisonment of another
six months.
All the sentences were
ordered to run concurrently. Appellants were extended benefit of Section 382-B,
Cr.PC. Confirmation Reference was made to this Court
by the trial court in terms of Section 374, Cr.PC.
Appellants preferred appeals against conviction and sentences.
2.
This Court vide order dated 13.09.2018, passed the following
orders:
“Learned counsel for the parties
jointly pointed out that in this case Muhammad Usman
was the deceased, whose postmortem examination was not conducted during
investigation. Mr. Munir Bukhsh
Bhutto, Judge, Anti-Terrorism Court-VI, Karachi in his judgment dated
23.12.2017 has discussed postmortem report of deceased Jahangir Hasan instead of Muhammad Usman.
Surprisingly, internal and external injuries of deceased Jahangir Hasan have been mentioned by learned Judge, Anti-Terrorism
Court-VI in his judgment. Learned D.P.G. submits that Jahangir Hasan was not deceased in this case. Learned D.P.G. further
pointed out that learned Judge has mentioned in the judgment that bloodstained
helmet of deceased was secured from the place of incident but according to
learned D.P.G. it was not the case of the prosecution.
In the above circumstances,
clarification of learned trial Judge is required before hearing of the appeals.
Call for comments of Mr. Munir Bakhsh Bhutto, learned
Judge, Anti-Terrorism Court-VI, Karachi through learned Registrar of this
Court, well before the next date. Adjourned to 01.10.2018.”
3.
Mr. Munir Bux Bhutto, Judge, Anti-Terrorism Court-VI, Karachi has
filed the comments, in which it is mentioned that in the findings of point No.1
on page 8 of the impugned judgment, the word ‘helmet’ has erroneously been
entered; in fact helmet has no connection with the instant case. Secondly, it
is mentioned that in the same para, name of deceased
has been mentioned as ‘Jahangir Hasan’ instead of
Muhammad Usman. Learned Judge in the end has
mentioned that error may be ignored.
4.
The
facts of the case as well as evidence produced before the trial Court find an
elaborate mention in the judgment dated 23.12.2017, passed by the trial Court
and, therefore, the same may not be reproduced here so as to avoid duplication
and unnecessary repetition.
5.
Learned counsel for the appellants contended that
perhaps trial court has mentioned the facts of some other case in this case and
judgment has been passed in slipshod manner. It is further submitted that in
such circumstances, death sentence was not warranted in the law. Mr. Muhammad Iqbal Awan, learned D.P.G. conceded to the contention of the learned
counsel for the appellants to the extent that this is a fit case to be remanded
to the trial court for deciding the same on merits afresh after hearing the
learned counsel for the parties.
6.
After hearing the learned counsel for the parties,
we have carefully perused the evidence and impugned judgment dated 23.12.2017.
7.
Record reflects that in the findings on point No.1 at
page 8 of the impugned judgment, trial court has mentioned as under:-
“On this point, the prosecution has produced the
medical and circumstantial evidence. The witness ASI Rab
Nawaz had inspected the dead body of Muhammad Usman
and found firearm injury on the dead body of the deceased. He conducted the
proceedings under section 174, Cr.PC and prepared the
memo of inspection of dead body and inquest report. He also inspected the place
of incident and secured blood stains, helmet of the deceased. Senior
MLO/Doctor Shahid Nizam had
conducted postmortem of the deceased, has corroborated the version of the
witness and has deposed that he found the following injuries on deceased
Jahangir Hassan:
Fire arm
wound of entry 0.5 cm with inverted margin on forehead. Blackening
present.
Exited from mid occipital region. Brain
matter oozing out.
The nature
of injury was ante mortem in nature.
Internal examination
Head: Fracture
of frontal bone and occipital bone seen. Correspondent meninges and brain found
damaged.
Neck: No
mark of injury seen.
Thorax:
Rib cage intact. No mark of injury seen.
Abdomen:
No mark of injury seen.
The time
between injuries and death was instant.
Time
between death and postmortem was one to three hours.
According to him, the cause of death of deceased was
cardiorespiratory failure due to head injury resulted by a firearm projectile.
He has produced postmortem report No.8196/2014 at Ex.20/A and
death certificate at Ex.20/B, verified their contents and recognized his
signature. He has also produced a letter of ASI Rab
Nawaz at Ex.15/B, which bears the cause of death, so endorsed in his own
handwriting and with signature.
The evidence of above named witness has gone
undisputed by the accused on the point of unnatural death of the deceased, by
means of firearm injury and as a result he had died and no material has been
brought in rebuttal to dislodge and disprove the prosecution evidence. Hence,
the circumstantial and medical evidence stands proven that the death of
deceased Muhammad Usman occurred on account of
firearm injury as claimed by the prosecution. Hence, this point needs no
further discussion, therefore, point No.1 is answered
in affirmative.”
8.
Trail court has convicted the appellants under
section 7(1)(h) of the Anti-Terrorism Act, 1997 read with section 302(b), PPC
and sentenced them to death and directed to pay compensation of Rs.500,000/-
each, to be paid to the legal heirs of the deceased.
9.
Scrutiny of the evidence reflects that on
08.11.2014, appellants along with absconding accused kidnapped Muhammad Usman outside of his house with intention to commit his Qatl-i-Amd; later on his dead
body was found outside of his house. In the whole episode, there is no
mention of helmet of the deceased. Moreover, deceased was Muhammad Usman not Jahangir Hassan. Learned trial judge in his
comments has admitted that it was error on his part. Section 367, Cr.PC provides that a judgment should contain the point or
points for determination, the decision thereon and the reasons for the decision
but the impugned judgment has been passed in a perfunctory and slipshod manner.
Learned trial court did not apply judicial mind while passing the judgment. Errors/omissions
committed by the trial court are not curable under the law. Reliance is placed upon
the case of Farrukh Sayyar
and 2 Others vs. Chairman, NAB, Islamabad and others (2004 SCMR 1). As such,
the impugned judgment dated 23.12.2017 is not sustainable under the law, the
same is set aside, the case is remanded to the trial court for re-writing the
judgment after hearing the learned counsel for the parties strictly in
accordance with law.
10.
Mr. Munir Bukhsh Bhutto, learned Judge Anti-Terrorism Court-VI, has
already formed his opinion, therefore, case is transferred to learned Judge
Anti-Terrorism Court-VII, Karachi for re-writing the judgment afresh, after
hearing the leaned counsel for the parties, strictly in accordance with law.
Counsel for the parties shall appear before learned Judge, Anti-Terrorism
Court-VII, Karachi on 18.10.2018.
11.
Confirmation Reference No.01 of 2018 made by the
trial court is answered in negative.
12.
In the view of above, appeals are disposed of in the
above terms.
13.
The manner in which impugned judgment is penned down
by the trial court is not approved. Let copy of this judgment be sent to Mr. Munir Bukhsh Bhutto, Judge,
Anti-Terrorism Court-VI, Karachi, through learned Registrar of this Court, with
direction to be careful in future, while penning down judgments.
J U D G E
J U D G E
Gulsher/PS