2023 PLP 863 (MLD)

ZULFIQAR ALI SANGI, J.

Through this jail appeal, the appellants have assailed the judgment dated 10.08.2016 (impugned herein) passed by learned 2nd Additional Sessions Judge, Khairpur, whereby they were convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay Rs.100,000/-each as compensation to the legal heirs of deceased and in case of default, they shall suffer S.I for six months more; however benefit of section 382-B, Cr.P.C was extended to them.

2. Succinct facts of the case are that about 2 or 3 days prior to the incident there was exchange of hot words between Abdul Waheed and Khando Mari on rotation of irrigating water rotation. It is alleged that on 09.02.2009 complainant along with his son Abdul Waheed and nephew Noor Muhammad came to village Munshi Taj Din Punjabi and while coming back when they reached bus stop Pir Qabil on link road leading from Lalan Canal to Tando Nazar Ali at about 2-30 p.m. the accused Khando, Mithal, Zanwar alias Bagiri, Javed, Adam, Altaf and one unknown having KKs were found standing. They fired KK shots upon Abdul Waheed who fell down and died. This incident was also witnessed by Naseeb son of Fareed and Niaz Ali son of Haji Sajjan Phulpoto. Ultimately the FIR was lodged against the accused as stated above.

3. After usual investigation, SHO submitted challan showing accused Muhammad Mithal and Adam in custody while remaining accused as absconders. The documents were supplied to the accused and charge against the accused was framed at Exh.5 to which they pleaded not guilty and claimed their trial vide their pleas recorded at Exh.6 and

7. During the pendency of case accused Altaf joined the trial and amended charge was framed at Exh.9 to which accused pleaded not guilty and claimed the trial vide their pleas recorded at Exhs.10 to 12.

4. In order to prove the charge against the accused, the prosecution had examined PW-1 Dr. Hafiz Rehman at Exh.13, who produced letter of police at Exh.14 and post mortem report at Exh.15. PW-2 HC Peerano was examined at Exh.16, who produced memo of arrest of accused Mithal and Adam at Exh.17. PW-3 Tapedar Ghulam Mustafa was examined at Exh.18, who produced letter of police at Exh.19 and sketch along with report at Exh.20. PW-4 complainant Haji Nawaz Ali was examined at Exh.20, who produced FIR at Exh.20/A. PW-5 Naseeb Ahmed was examined at Exh.21, who produced statement under section 164, Cr.P.C at Exh.21/A. PW-6 Noor Muhammad was examined at Exh.22, who produced statement under section 164, Cr P C at Exh.22/A. During pendency of case accused Muhammad Mithal after granting bail jumped away and was declared proclaimed offender. PW-7 Muhammad Mithal Phulpoto was examined at Exh.26, who produced memo of crime weapon from accused Mithal at Exh.26/A. PW-8 HC Rafique Ahmed was examined at Exh.27, who produced receipt of dead body at Exh.27/A and memo of arrest of accused Altaf at Exh.27/B. PW-9 Khadim Hussain was examined at Exh.28, he produced inquest report at Exh.28/A, memo of wardat at Exh.28/B and memo of last worn clothes of deceased at Exh.28/C. During pendency of case accused Javed joined the trial and again amended charge against the accused was framed at Exh.30 to which accused pleaded not guilty and claimed their trial vide their pleas recorded at Exhs.31 to

33. Again complainant Haji Ali Nawaz was examined at Exh.34, PW Khadim Hussain was examined at Exh.35, HC Peerano was examined at Exh.36, HC Rafique Ahmed Lund was examined at Exh.37, Dr. Hafiz Rehman was examined at Exh.38. During the pendency of case accused Khando alias Khanwand Bux joined the trial and once again amended charge was framed at Exh.40 to which accused did not plead guilty and claimed their trial vide their pleas recorded at Exhs.41 to

44. Again Dr. Hafiz Rehman was examined at Exh.45 HC Peerano was examined at Exh.46, Muhammad Mithal was examined at Exh.47, complainant Haji Ali Nawaz was examined at Exh.48, PW Naseeb Ahmed was examined at Exh.49, P.W Khadim Hussain was examined at Exh.50, P.W Noor Muhammad was examined at Exh.51, HC Rafique Ahmed was examined at Exh.52 P.W Abdul Rasheed was examined at Exh.53, who produced sketch and report at Exh.53/A. PW-10/I.O Imtiaz Hussain was examined at Exh.54, who produced memo of arrest of accused Khando at Exh.54/A. PW-11 PC Shah Nawaz was examined at Exh.55. PW-12 SIO Ali Gulab was examined at Exh.56, who produced letter at Exh.56/A and chemical report at Exh.56/8. Thereafter, learned ADPP for the State closed the side of prosecution vide statement as Ex. 57.

5. The statements of accused under section 342, Cr.P.C were recorded at Exhs.58 to 61, wherein they have denied all the allegations of the prosecution leveled against them and further stated that they are innocent and have falsely been implicated by the complainant in this case, but neither accused have examined themselves on oath nor examined any defence witness.

6. The learned trial Court on conclusion of trial and hearing the advocate for the appellants passed the impugned judgment convicting the appellants, as stated above.

7. Learned counsel for the appellants criticized the impugned judgment and argued that there are material contradictions, improvements and omissions in the evidence of prosecution witnesses on material points; therefore, their evidence is un-reliable and un-trustworthy. He further contended that the charge was amended on 06.12.2014 and thereafter examination-in-chief of PW Haji Nawaz Ali, who was complainant and eye-witness of the incident, was recorded in absence of accused Altaf and Javed which caused prejudice to them. He further submitted that thereafter once again charge was amended on 12.04.2016 and then examination-in-chief of PW/complainant Haji Nawaz Ali, was recorded in absence of accused Khando alias Khawand Bux, hence they prayed that the case may be remanded to the trial court for recording evidence in presence of the appellants and their advocate, as it is a case of capital punishment. Lastly, learned advocates for the appellants submitted that case pertains to the year 2009 and if the case is remanded to the trial court, the appellants may be released on bail.

8. Learned Additional P.G. could not controvert the arguments of learned appellant's counsel that the examination-in-chief of eye-witness/PW Haji Nawaz Ali was recorded in absence of the appellants Altaf, Javed and Khando. He further submitted that a fair trial is right of the accused guaranteed under the Constitution of Pakistan and raised no objection for remand of the case to the trial court for recording evidence of the witnesses afresh in presence of appellants and their counsel and deciding the case afresh on merits in accordance with law.

9. I have heard the learned counsel for the appellants, learned D.P.G. and perused the record and have read the evidence of prosecution witnesses.

10. From the record it reflects that on 15-12-2009, first charge at Ex.05 was framed against Muhammad Mithal and Adam; however no PW was examined. Thereafter on 11.01.2010, second charge was framed upon the arrest of accused Altaf and examination-in-chief of PW-1 Dr. Hafiz-ur-Rehman was recorded on 20.01.2010; besides he was cross-examined. PW2 HC Peerano Khan, PW4 Complainant Haji Nawaz Ali, PW5 Naseed Ahmed and PW6 Noor Muhammad were examined on 19.11.2013 and they were cross-examined. PW7 Muhammad Mithal was examined on 10.01.2014 and was cross-examined. PW8 Rafique Ahmed and PW9 Khadim Hussain were examined on 13.02.2014 and 26.08.2014, respectively; besides they were cross-examined. Record further reveals that third time charge was framed (amended) on 06.02.2014 against accused Altaf, Adam and Javed; however chief-in-examination of Complainant/Eye-witness Haji Nawaz Ali was not recorded in presence of appellant Javed and in his chief-examination he stated that "My evidence in this case/crime has already been recorded on 19.11.2012 at Exh:20 which correct and I adopted the same. I further say that all accused present in Court are same so also accused Javed." Evidences of PW-2 Khadim Hussain, PW-3 HC Peerano, PW-4 Rafique and PW-5 Dr. Hafiz-ur-Rehman were recorded along with their cross-examination. Subsequently, charge was again amended forth time on 12.04.2016 against accused Altaf Adam, Javed and Khando alias Khawand Bux. Examination-in-Chief of PW-1 Hafiz-ur-Rehman, PW-2 HC Peerano, PW-3 Muhammad Mithal, PW-6 Khadim Hussain, PW-8 Rafiq Ahmed, PW-9 Abdul Rasheed, PW-10 Imtiaz Hussain, PW-11 Shahnawaz and PW-12 Gulab was recorded; however Examination-in-Chief of Complainant/Eye-witness Haji Nawaz Ali was not recorded and he in his examination-in-chief only stated that "My evidence in this case/crime has already been recorded on 19.11.2012 at Exh:20 which correct and I adopted the same. I further say that all accused present in Court are same so also accused Javed". Besides, PW-5 Naseeb Ahmed, who has also stated that "My evidence in this case/crime has already been recorded on 19.11.2013 at Exh:21 which correct and I adopted the same. I further say that all accused present in Court are same".

11. Record further reveals that chief-in-examination of PW-7 Noor Muhammad was also not recorded in presence of the appellant Khando alias Khawand Bux he only deposed that "My evidence in this case/crime has already been recorded on 19.11.2013 at Exh:22 which is correct and I adopted the same. I further say that all accused present in court are same."

12. The examination-in-chief of the PWs Haji Nawaz Ali, Naseeb Ahmed and Noor Muhammad were not recorded in presence of the appellants Javed and Khando alias Khawand Bux and the same were used against them for awarding conviction. The present case carries capital punishment and evidence (examination-in-chief, cross-examination and re-examination) of prosecution witnesses should be recorded in their presence and in presence of their advocates. Even when the witness is examined in presence of accused but in absence of his counsel in cases of capital punishment the right of accused are being violated as most of accused are laymen who would have little, if any, knowledge of the law and in the absence of defence counsel would be unable to adequately defend themselves. For example, during the examination-in-chief of a prosecution witness the accused would not know which questions he could object to and which documents he could oppose being exhibited. Such inability on his part in my view would lead to an unfair trial and the same is in violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, the same is reproduced as under:- "10-A. Right to fair trial.

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."

13. It is a well-settled principle of law that evidence is to be recorded in the presence of accused and the specific provision in this respect is provided under section 353 of the Code of Criminal Procedure 1898, and the same is reproduced 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".

14. The right of defend to the accused has also been provided in the Criminal Procedure Code, 1898, under section 340(1), Cr.P.C. which provides that "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." Further the Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars provide that on the committal of the case the Magistrate is required to ascertain from the accused as to whether he intends to engage a legal representative at his own expense otherwise the Sessions Court would provide an Advocate on State expense to defend him. The Sindh Chief Court Rules (Appellate Side) (Rule 35) is also deals with the same subject which provides that "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."

15. As has been discussed above, the legal position is clear that a fair opportunity was not provided to the appellants at the time of recording evidence of the witnesses Haji Nawaz Ali, Naseeb Ahmed and Noor Muhammad and the trial court did not perform its functions diligently and has not recorded examination-in-chief of witness named above in presence of the appellants by ignoring Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, section 340(1), Cr.P.C. and Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars so also settled principles of law. As such, the appellants were prejudiced in the trial and defence. Therefore, a miscarriage of justice has been committed in the case. Procedure adopted by the trial court was illegal that was not curable under section 537, Cr.P.C. and has vitiated the trial. The appeal is partly allowed. The conviction and sentence awarded to the appellants through impugned judgment dated: 10.08.2016 is set aside, the case is remanded back to the trial Court for re-examination of above three prosecution witness whose chief-examination was not recorded in presence of appellants Javed and Khando alias Khawand Bux. Trial Court is directed to issue P.O for accused and summon to the above three witnesses and fix the date for recording their evidence. Trial court is further directed to record statement under section 342, Cr.P.C afresh and defence evidence if appellants want to examine any defence witness. The entire exercise is to be completed within the period of three months from the date of receipt of the judgment.

16. Since the case is remanded to the trial court therefore, the plea of bail is also left for the trial court to decide if the appellants moved their bail application the same will be heard and decided on its merits.

17. The captioned Criminal Jail Appeal is disposed of in the above terms. JK/A-62/Sindh Case remanded.