2020 PLP 776 (MLD)

IRSHAD ALI SHAH, J.

The appellant by way of instant Criminal Appeal has impugned the judgment dated 31.08.2013 passed by learned Sessions Judge, Ghotki, whereby he for an offence punishable under section 302(b), P.P.C. has been sentenced to death as Tazir and to pay fine of Rs.5,00,000/- to legal heirs of deceased Abdul Hanan and Mst. Humaira.

2. Learned trial Court after awarding death penalty to the appellant has also made a Reference to this Court for its confirmation in terms of section 374, Cr.P.C.

3. The appeal and Reference are now being disposed of by this Court through single judgment.

4. As per narration made in first information report FIR, the appellant with rest of the culprits in furtherance of their common intention committed qatl-i-amd of deceased Abdul Hanan and Mst. Humaira by causing them fire shot injuries for that he was booked and reported upon by the police.

5. The charge which was framed against the appellant was to the following effect; "That you on or about 05.04.2004 at about 1915 hours at house of complainant Hafiz Ghulam Rasool Chachar situated in Deh Ranjhan, Taluka Ubauro along with proclaimed offender namely Ismail son of Allah Wassayo Chachar deadly armed with deadly guns you accused made straight fires upon Abdul Manan complainant aged about 18/19 years so also made fires of gun upon Mst. Humaira daughter of Rehmatullah Chachar aged about 25 years, commit Qatal with intention to cause their death in ordinary course which resulted Abdul Manan and Mst. Humaira were died at the spot and thereby committed qatl-i-amd, an offence punishable under section 302, 34, P.P.C. within cognizance of this Court"

6. Neither the incident took place at house of Hafiz Ghulam Rasool nor deceased was Abdul Manan. In that situation, it is rightly being pointed by learned counsel for the appellant that the charge so framed against the appellant was defective one and it was not fulfilling the requirements of section 221, Cr.P.C. No doubt, subsequently the place of incident and name of the deceased were corrected but it was not enough to cure the defect as it all was done at the time when the case was at the verge of its final disposal.

7. Be that as it may, the appellant did not plead guilty to the charge and prosecution to prove it examined complainant Hafiz Ghulam Rasool and his witnesses and then closed the side. Strange enough, the examination-in-chief of the complainant and good number of his witnesses was recorded in absence of counsel of the accused. It was in violation of the direction contained by Paragraph 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars, which provides that the every criminal case which entails capital punishment could only be proceeded on appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused at State expenses. In that situation, it is rightly being contended by learned counsel for the appellant that the appellant has been prejudiced in right of his defence seriously.

8. In case of Purna Chandra Mondal v. The State (1970 PCr.LJ 746), it has been observed by the Honourable Court that; "The provisions of Legal Remembrancer's Manual, 1960, were made in aid of Section 340 of the Code of Criminal Procedure which confers a right on every accused person brought before a criminal Court to be "defended" by a lawyer, which is not the same thing as being "represented" by a lawyer. That right evidently extends to access to the lawyer for private consultations and also affording the latter an adequate opportunity of preparing the case for the defence. A last moment appointment of an Advocate for defending a prisoner accused of capital offence, not only results in a breach of the provision of the 6th paragraph of Chapter XII of the Legal Remembrancer's Manual, 1960 and frustrates the object behind the elaborate provisions of that chapter, such an appointment results also in a denial to the prisoner of the right conferred on him by Section 340 of the Code of Criminal Procedure, 1898.

9. It was not the end of the matter, learned trial Court finding the appellant to be guilty for the offence for which he was charged, convicted and sentenced him in the following terms; "I hereby convict Sibghatullah in pursuance of section 265-H(ii), Cr.P.C and sentence him for an offence under section 302(b), P.P.C. to death as Tazir. He be hanged by neck, till he is dead and under section 544-A, Cr.P.C fine of Rs.5,00,000/- (Five Hundred thousand), if amount deposited by accused, same be paid to legal heirs of deceased Abdul Hanan and Mst. Humaira in equal shares as compensation. In default of payment to fine, the accused shall suffer S.I. for six months."

10. The bare perusal of above paragraph reveals, the conviction and sentence, recorded against the appellant for an offence punishable under section 302(b), P.P.C., is not specifying as to whether, it is for single or double murder, although the appellant was charged specifically for committing murder of two persons (Abdul Hanan and Mst. Humaira). In that situation, it could be concluded safely that the provision of section 367, Cr.P.C. have not been complied with by learned trial Court in letter and spirit, which has rendered the impugned judgment to be illegal.

11. Learned Additional PG for the State and learned counsel for the complainant when were confronted with above omissions and illegalities were fair enough to concede for remand of the matter for de novo trial.

12. In view of above, the impugned judgment is set-aside with direction to learned trial Court to proceed with the case against the appellant afresh/de novo in accordance with law.

13. The instant Criminal Appeal and the Reference stand disposed of in above terms. SA/S-115/Sindh Case remanded.