IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No. S- 133 of 2011.

Present:

Mr. Justice Naimatullah Phulpoto.

Ghulam Nabi & others. .....……....Appellants.

Versus

The State. ……....…Respondent.

Messrs Ali Nawaz Ghanghro, Athar Abbas Solangi, Muhammad Hashim Soomro, Advocates for appellants.

Mr. Ali Nawaz S. Junejo, Advocate for complainant.

Mr. Imtiaz Ahmed Shahani, State Counsel.

Date of hearing: 07.12.2012.

Date of Judgment: 07.12.2012.

J U D G M E N T

Naimatullah Phulpoto, J-. The appellants Ghulam Nabi, Irshad Ali, Dilawar Hussain alias Dillan and Qurban were tried by learned Sessions Judge, Larkana, in Sessions case No.505/1997, Crime No.43/1997, registered at P.S Naudero, under Sections 302, 114, 504, 148, 149 P.P.C. On conclusion of the trial the appellants Ghulam Nabi, Irshad Ali, Dilawar Hussain alias Dillan and Qurban were convicted and sentenced under Section 302 (b) read with Section 34 P.P.C, to imprisonment for life and to pay compensation of Rs.75000/- each to the legal heirs of deceased, and in default of payment of recovery, each of them would undergo imprisonment for six months S.I more. The appellants were extended benefit of section 382-B Cr.P.C, while accused Ghulam Mustafa was acquitted by extending benefit of doubt.

2. Brief facts of the prosecution case as disclosed in the F.I.R, are that Oshaq Ali (deceased), used to work at Cycle Shop of Saifullah Kourejo at Naudero. On 08.5.1997, as usual he went on his work and in the evening, his father (complainant) Ranjhan alongwith his cousins Imdad alias Sirai and nephew Fayyaz went to Naudero; after finishing their work they went to Oshaq Ali, from where they including deceased left for their village on foot. It is alleged that they reached at brick-klin near Dadu Canal bridge; where complainant party was confronted by five accused persons, they were identified as Ghulam Mustafa empty handed, Qurban Ali armed with pistol, Irshad, Ghulam Nabi and Dilawar alias Dillan armed with guns. Out of them Ghulam Mustafa challenged the complainant party and told Oshaq Ali that his brother Kifayat Ali was their “Karo” and thus they would kill him. Thereafter, he instigated co-accused, whereupon accused Irshad Ali, Ghulam Nabi and Dilawar fired from their guns and Qurban from his pistol, which hit Oshaq Ali, who fell down; then all the accused persons made their escape good. Complainant party found that Oshaq Ali had sustained injuries at his various parts of body and was dead. Complainant left the witnesses over dead body of his brother and went to P.S Naudero and lodged F.I.R at 8.30 p.m., it was recorded vide Crime No.43/1997, under Sections 302, 114, 504, 148, & 149 P.P.C.

3. After recording F.I.R, Investigating officer proceeded to the place of vardat, where he found dead body of deceased Oshaq Ali, he prepared Danistnama in presence of the Mashirs, secured blood stained earth and collected four empties of 12-bore, sealed the same on spot in presence of the mashirs; he then referred dead body of Oshaq Ali to CMC Hospital, Larkana, for postmortem examination and report through PC Muhammad Hashim. Investigation officer recorded 161 Cr.P.C statements of the prosecution witnesses; he arrested accused Ghulam Mustafa, Ghulam Nabi, Irshad Ali and Qurban on 14.5.1997. Appellant Dilawar Hussain was arrested on 19.5.1997, in presence of the same mashirs and on 20.5.1997 recovered weapons, i.e. gun from accused Dilawar and a pistol from accused Qurban on their pointation. He sent blood stained earth to the Chemical laboratory and crime weapons i.e. gun and pistol, so also the empties to the Ballistic expert for the report. Investigating officer had also examined some other persons during investigation. On completion of the investigation challan was submitted against the accused. Case was sent up to the Court of Sessions; learned Sessions Judge, Larkana, transferred the case to the Court of IV-Additional Sessions Judge, Larkana, who framed the charge against all the accused, to which they pleaded not guilty and claimed to be tried. However, from the judgment of the trial Court it appears that before any prosecution evidence was recorded, accused Dilawar absconded away and warrants for his arrest were issued but returned un-executed; he was declared as proclaimed offender on 20.6.2001. Thereafter, prosecution led evidence and examined complainant Ranjhan at Ex.14, PW Fayyaz Ahmed at Ex.15, P.W Imdad Hussain at Ex.16. Thereafter, case was transferred to the Court of 1^st Additional Sessions Judge, Larkana, where Dr. Ahsanullah, Medical officer was examined. Mashir Khadim Hussain was given-up vide statement at Ex.19, second mashir Zubair Ahmed was examined at Ex.20. The case was then transferred to the Court of Additional Sessions Judge, Ratodero, where Investigating officer/ SHO Jan Muhammad was examined at Ex.21. At that stage accused Dilawar was again arrested and thus he re-joined the trial and learned State Counsel filed statement at Ex.23, to adopt the same evidence recorded in absence of accused Dilawar. Learned Sessions Judge, Larkana, observed as the case was old one, he allowed the application and statements of all the accused including accused Dilawar under Section 342 Cr.P.C were recorded. On the conclusion of the trial, after hearing the counsel for the parties, the appellants were convicted and sentenced as stated above.

4. Mr. Ali Nawaz Ghanghro, learned Advocate for the appellants, mainly argued that prosecution evidence was recorded in absence of appellant Dilawar. Section 353 Cr.P.C provides that evidence to be taken in presence of the accused. He further contended that procedure adopted by the learned trial Court on the application of the Prosecutor for adopting the same evidence was illegal, conviction and sentence awarded to the appellants on the basis of such evidence without providing fair opportunity to the appellant Dilawar is not sustainable under the law. He submitted that case may be remanded to trial Court to take evidence of prosecution witnesses in presence of all accused. In support of his contention he relied upon case of Moonda and others v. The State (P.L.D 1958 Supreme Court (Pak) 275).

5. Mr. Imtiaz Ahmed Shahani, learned State Counsel conceded to the contentions of learned Advocate for the appellants and stated that trial Court has committed illegality; case may be remanded back to the trial Court for recording the evidence of prosecution witnesses in presence of all the accused.

6. Mr. Ali Nawaz S. Junejo, learned Advocate for complainant argued that appellant Dilawar was fugitive from the law and trial Court had rightly relied upon the evidence recorded in absence of the accused Dilawar. He further argued that in case, case of accused Dilawar is remanded, the conviction and sentence recorded against remaining accused may be maintained. In support of his submissions he relied upon the case of Ch. Abdul Majeed v. The State (2004 Y.L.R 747 Lahore), Shahmand and six others v. The State (NLR 1991 Criminal 214).

7. I have heard the learned counsel for the parties and perused the entire record with their valuable assistance.

8. Leaned Sessions Judge, Larkana, in his judgment dated 21.11.2011, has observed that charge was framed against all the accused; after framing of the charge accused Dilawar absconded away and he was declared as proclaimed offender on 20.6.2001; the prosecution examined all the prosecution witnesses and closed the side at Ex.22. Thereafter accused Dilawar was arrested, at that time learned State Counsel filed statement at Ex.23 to adopt the same evidence recorded in absence of accused Dilawar, thereafter, trial Court proceeded further while observing that case is old and recorded statements of all the accused including accused Dilawar under Section 342 Cr.P.C and convicted and sentenced all the appellants as stated above.

9. It is basic principle of administration of criminal justice that examination of the witnesses must be recorded in presence of the accused or his pleader as provided under section 353 Cr.P.C, which reads as under:

“353. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under (Chapters XX, XXI, XXII and XXIIA) shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.”

10. A bare perusal of the above provision of the law clearly demonstrates that evidence of the prosecution witnesses has to be taken in presence of the accused, but in this case it is the matter of the record that prosecution evidence was taken during the absence of accused Dilawar. No doubt cases are to be disposed of expeditiously but after arrest of accused Dilawar learned trial Court was under legal obligation to take prosecution evidence in presence of accused Dilawar. Appellant Dilawar is charged with an offence, which carries capital punishment, he could not be stripped of his valuable right of a fair and impartial trial, else the same would negate the concept of due process of law, as fair trial is the right of every accused. It may be mentioned here that co-accused were present at the time of taking evidence of the prosecution witnesses; appellant Dilawar was also entitled for same treatment after his arrest. Provisions of section 353 Cr.P.C are mandatory in nature and taking of the evidence of the prosecution witnesses in absence of the accused vitiated the trial. So for, the contention of Mr.Ali Nawaz S. Junejo, Advocate for complainant that appellant Dilawar was fugitive from the law and case proceeded against him under Section 512 Cr.P.C, and according to the learned Advocate for complainant accused Dilawar has lost normal right. To understand his contention properly it would be advantageous to reproduce the relevant provisions here, which speak as under:

“512. Record of evidence in absence of accused. (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or (send for trial to the Court of Session or High court) such person for the offence complained of may, in his absence, examine the, witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) Record of evidence when offender unknown. – If it appears that an offence punishable with death or (imprisonment for life), has been committed by some person unknown, the High Court may direct that any Magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence. Any deposition so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan.”

“Article 47 of the Qanun-e-Shahadat, Order 1984. Relevancy of certain evidence for proving, in subsequent proceedings, the truth of facts therein stated. Evidence given b a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceedings, the truth of the facts which its states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable;

Provided that;

the proceeding was between the same parties or their representatives-in-interest;

the adverse party in the first proceeding had the right and opportunity to cross-examine;

the question in issue were substantially the same in the first as in the second proceeding.”

11. From the perusal of above provisions of law it is clear that every trial Court is empowered to believe the evidence of all the witnesses recorded in absence of the accused, provided on the arrest of the accused, such witness is found dead or incapable of giving evidence of his attendance cannot be procured without an amount of delay or expense. In the present case, position was entirely different. Complainant party was contesting the case inspite of that, learned trial Court adopted the illegal procedure by allowing the prosecution to rely upon the same evidence, which was taken in absence of accused Dilawar, as such conviction and sentence awarded to the appellant on basis of such evidence are not sustainable in law.

12. Mr. Ali Nawaz S. Junejo, learned Advocate for complainant has argued that in case, Court comes to the conclusion that re-trial is necessary in the case, then partial remand of case to the extent of only appellant Dilawar may be ordered.

13. In the case of Moonda and others v. The State (supra), it has been held by Hon’ble Supreme Court that ground for retrial, if appears in the case, in respect of some accused, case to be retried in respect of all the accused.

14. For my above-stated reasons, while respectfully relying upon above cited authority, conviction and sentence awarded to the appellants by the trial Court are hereby set-aside; the case is remanded back to the trial Court in respect of all appellants with direction to take the evidence of the prosecution witnesses in presence of all the accused afresh in accordance with law and provide to all the accused full opportunity to cross examine the prosecution witnesses. The appellants, who are in custody shall be produced before the trial Court on 17.12.2012, for expeditious disposal of the case, according to law. These are the reasons for short-order dated 07.12.2012.

Judge

Ansari/*