2000 PLP 1020 (MLD)

(4) Appellant Karimullah Sharif examined D.W. Haji Kifayatullah Sharif, his father, who deposed that his son was missing from 27‑3‑1995 and on 3‑4‑1995 he came, to know about arrest of his son through paper. Ataullah Khan, who deposed that the appellant was taken away by some persons on gun point from garage on 27‑3‑1995. (5) Appellant Ahmed Bux examined D.W. Qari Shamsul Haq and Maulana Abdul Ghafoor, who deposed that appellant arrested on 10‑3‑1995 from Masjid after Jumma prayer. Abdul Ghafoor further added that Muhammad Ali Rind had taken NIC of appellant from him. (6) Appellant Saghir Ahmed Sheikh had examined D.W. Abdul Matin, who deposed that appellant was on duty at godown on 1‑3‑1995 from 9‑00 a. m. to 11‑00 p. m. and D. W. Shamsuddin deposed that the appellant was arrested from Masjid after Jumma prayer and this witness further added that appellant Salitriuddin was arrested on 13‑5‑1995 from Buffer Zone. (7) Appellant Salimuddin also examined D.W. Qamar Wahab, who deposed that stolen Car No.0232 Suzuki of bank was recovered by police and he had seen it at C.I.A. Garden on 3‑5‑1995. (8) Appellant Ahmed Zahoor had examined his mother in defence, who deposed that Ahmed Zahoor was produced at Police Station C.I.A. Garden.

22. The learned trial Court framed the following points for examination:‑‑ (1). Whether Muhammad Ayub, Hassan Ali, Fayyaz Hassan, Imran Ayub, Kamran, Ejaz Hassan and Syed Masood Shah died haeinocidal death by means of fire‑arm injuries? (2) Whether there was attempt over the life of Furqan by causing fire‑ (3) Whether the robbery duly armed with deadly weapons was committed from the houses of deceased Ayub and Hassan Ali including his car standing outside? (4) Whether .accused Fazil, Salim, Ahmed Zahoor and absconding accused Fahim in furtherance of their common intention committed the murders of the above named deceased? (5) Whether accused Fazil, Salim, Ahmed Zahoor and absconding accused in furtherance of their common intention attempted over the life of Furqan by means of fire‑arms injury? (6) Whether accused Fazil, Salim, Ahmed Zahoor, absconding accused committed the robbery of valuables from the houses of Muhammad Ayub and Hassan Ali and also took away car of Hassan Ali in furtherance of their common intention? (7) Whether accused Mansoor ‑ Ali Babar, Umer Hayat, Karimullah Sharif, Hafiz Ahmed Bux, Saghir and Ishtiaq abetted in commission of the murders of the above named deceased, attempt over life of Furqan and commissions of robbery duly armed with deadly weapons by co‑accused Fazil, Salim Zahoor and absconding accused Fahim? (8) What offences have been committed by the accused, if any?

23. On assessment of evidence as well as after hearing the learned counsel for the parties, the appellants were found guilty and were convicted and sentenced as under. Appellants Muhammad Fazil, Khawaja Saleemuddin, Ahmed Zahoor and Fahimul Haq were convicted under section 302/34, P.P.C. and sentenced to death. They were also convicted under section 307/34, P.P.C. with 10 years R.I. and fine separately. They were also convicted under section 394/36, P.P.C. with 5 years' R.I. and fine separately. Appellants Mansoor Ali Babar, Karimullah Sharif, Umer Hayat, Saghir Ahmed Sheikh and Hafiz Ahmed Bux were convicted under section 109, read with section 34, P.P.C. and sentenced to, death and fine separately.

24. We have heard Messrs Muhammad Ashraf Kazi and Azizullah K. Shaikh, the learned counsel for the appellants, Mr. K.M. Nadeem the learned counsel appearing on behalf of P.W. Altaf Bhojani and Mr. Muhammad Iqbal Road, the learned Advocate‑General, Sindh, on behalf of the State at length and have perused the record and proceedings of the case minutely.

25. At the very outset ‑the learned counsel for the appellants contended that trial in all these cases has not proceeded in accordance with newly amended provisions of Pakistan Penal Code, but the entire trial has been conducted under the old provisions of P.P.C., which vitiates the entire trial. They next argued that the case was not only registered under section 307, PAC., but the entire trial was conducted under the repealed provisions of law, so also the conviction was awarded to all the appellants in the above referred cases. Admittedly after amendment introduced in P.P.C. by Criminal Law (Second Amendment) Ordinance, 1990, the provisions of section 307, P.P.C. were deleted and are not available on the statute. By the above Ordinance provisions relating to Qisas and Diyat were introduced and in the chapter relating to offences against human body sections 299 to 338 were submitted in P.P.C. According to them the charge was framed in all the cases irrespective of other sections under sections 307 and 149, P.P.C., which admittedly are not available in the statute. So far trial under section 302, P.P.C. against the appellants is concerned, the same, too, proceeded ignoring the provisions of sections 300 and 302, P.P.C. by neither framing the charge of Qatl‑i‑Amd nor convicting any of the appellants under any of the 3 subsections of section 302, P.P.C. So much so the procedure of conducting trail under section 304, P.P.C. has not at all been complied with by the trial Court while examining the prosecution witnesses and awarding conviction to the appellants. They lastly contended that when the trial has not proceeded in accordance with law the conviction and sentence is liable to be set aside and it is a fit case for remand for fresh trial, to be conducted in accordance with law in force.

26. On the other side, learned Advocate‑General, Sindh has controverted the contentions of the learned counsel for the appellant and contended that, they have pointed out mere technical defects in the case and it would not be appropriate to remand the cases on such technicalities. He, however, could not satisfy on the above, legal objections and also did not produce any case law in support of his arguments.

27. Mr. K.M. Nadeem, the learned counsel appearing on behalf of P.W.10 Altaf Bhojani in Criminal Appeal ‑‑No.200 of 1995, mainly contended that the provisions of amended, P.P.C. relating to Qisas and Diyat laws introduced by Criminal Law (Second Amendment) (Ordinance No.VII) of 1990 have not been specifically made applicable in the cases triable under Suppression for Terrorist Activities Act, 1975, as such the contentions of the appellants' counsel have no force. He next contended that the competency of witnesses has neither been challenged before the trial Court nor they were cross‑examined with regard to their testimony or previous character and non observance of procedure for conducting the test of Tazak‑ul‑Shuhood. Thus, their evidence cannot be discarded. He placed reliance on the case of Noorul Islam v. The State, reported in 1986 PCr.LJ 1818 and also on the case Noorul Islam v. The State, reported in 1986 SCMR 1836.

28. The incident in these cases had taken place on 25‑2‑1995 in the night in between, 1st and 2nd March, 1995, whereas the Criminal Law (Second Amendment) (Ordinance No. VII) of 1990 was promulgated on 5‑9‑1990 and was enforced from 12th Rabi‑ul Awwal, 1411 A.H., which fell on 2‑10‑1990, whereby the provisions relating to Qtsas and Diyat were introduced and in chapter relating to offences against human body sections 299 to 338 were substituted in Pakistan Penal Code. By the said amendment, an amendment was brought in section 53, P.P.C: and the punishment provided by the Shariah, as stated above, was introduced, which reads as under: Firstly, Qisas; Secondly, Diyat; Thirdly, Arsh; Fourthly, Daman; Fifthly, Ta'zir; Sixthly Death Seventhly, Imprisonment for life; Eighthly, Imprisonment which is of two descriptions, namely; (i) Rigorous, i.e. with the hard law ... Simple Ninthly, Forfeiture of property; Tenthly, Fine.

29. An amendment was also brought in sections 337 and 338 of Cr.P.C. relating to tender of pardon. An amendment was also brought in section 381, relating to execution of sentences provided in Chapter XXVIII of Cr.P.C. At the same time Schedule II of Cr.P.C. was also amended and the figures "301 to 338" occurring in column I and the entries relating there to in columns 2 to 8 were substituted. A further amendment was brought in P.P.C. and Cr.P.C. by Criminal Law (Third Amendment) 1990 as Ordinance No. VIII of 1990 on 2nd October, 1990 to bring certain provisions thereof in conformity .with Injunctions of Islam as laid down in Holy Qur'an and Sunnah. By this amendment sections 54, 55 and 338‑E of P.P.C. were amended. Correspondingly an amendment was brought in section 345, Cr.P.C. and in the table in the second column, for the figures "302, 303, 304‑A,. 305, 306, 307, 308, 324,325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337, 338 and 308 relating to in the first and third columns were substituted and above offences were made compoundable. An amendment was also brought in section 32 and section 402‑C, Cr.P:C. Similarly Ordinances were being repeated onwards on the expiry of its period with certain amendments till 11‑4‑1997, when an Act of 1997 called as Criminal Law (Amendment) Act, 1997, No. II. It was passed by the Parliament (Ordinance No. CVIII of 1996).

30. It would be pertinent to refer here in brief the background of enforcement of above referred Criminal Law (Second Amendment) (Ordinance No.VII) of 1990.

31. The Hon'ble Federal Shariat Court in several Shariat Petitions vide judgment, dated 5‑10‑1986 declared the provisions of sections 299 to 338, P.P.C. repugnant to Injunctions of Islam. The provisions of section 109, P.P.C. which make an abettor in case of murder and other offences against human body liable to the same punishment as prescribed for such offence was also declared to be repugnant to the Injunctions of Islam. An appeal was filed before the Honourable: Supreme Court whereby the decision of the Honourable‑ Federal Shariat Court was challenged. The Sharait Appellate Bench of the Honourable Supreme Court in the case of Federal Shariat Court of Pakistan through Secretary, 'Ministry of Law and another v. Gul Hassan Khan and others; reported in PLD 1989 SC 633, declared the above referred provisions of P.P.C. repugnant to the injunctions of Islam as enshrined in Holy Qur'an and Sunnah and fixed 23rd March, 1990 to be the date from which the same were made applicable. Thereafter, a review petition was filed before the Honourable Supreme Court and in the matter of Federation of Pakistan v. N.‑W.F.P. Government and another reported in PLD 1990 SC 1172, it was 'undertaken by the Government that Ordinance with regard to enforcement of Qisas and Diyat laws would be promulgated by 5th September, 1990 and be made effective. from 12th Rabirul‑Awwal, 1411 A.H.

32. Admittedly, trial in the cases in hand was conducted under the old/repealed provisions of sections 302, 307 and 109, P.P.C. though F.I.R. No.85 of 1995 of Police Station New Town, Karachi in Criminal Appeals Nos. 201, 203 and 206 of 1995 was registered under section 302 of Qisas and Diyat Ordinance. The above fact; on the, face of it, is apparent that neither charges of Qatil‑i‑Amd liable to Qisas, as envisaged under sections 300 and 302, P.P.C. have been framed nor the trials were conducted in accordance with section 304, P.P.C. The conviction under sections 307 and 109, P.P.C. further reveals that the learned Judge while convicting the appellants was appeared to be totally ignorant of law. Section 307, P.P.C. not being is existence on the statute at the relevant time and section 109, P.P.C. having already been declared to be against Injunctions of Islam, as envisaged in Holy Qur'an and Sunnah by the Honourable Supreme Court, vitiates the entire proceedings and such illegality is not curable under section 537, Cr.P.C. 33: In the first set of appeals, viz., Criminal Appeals Nos.200, 204 and 207 of 1995, appellants Mansoor Ali Babar, Umer Hayat, Syed Asif Ali Muhammad Gulzar, Khawaja Saleemuddin, Muhamamd Fazil, Fahimul Haq and Asif Gulshanwala were convicted under section 302 read with section 34, P.P.C. to death and fine. They were also convicted under section 304/34, P.P.C. with 10 years R.I. and fine separately. ‑ They were also convicted under section 396/34, P.P.C. and sentenced to 5 years R.I. and fine separately. Appellant Muhammad Ahmed was convicted under section 109, P.P.C. and sentenced to death with fine separately.

34. In the second set of appeals, viz. Criminal Appeals Nos.210, 203, 206 of 1995 and 61 of 1996, appellants Mansoor Ali Babar, Umer Hayat, Syed Asif Ali, Muhammad Gulzar, Khawaja Saleemuddin, Muhammad Fazil Fahimul Haq and Asif Gulshanwala were convicted under section 302/34, P.P.,C. to death and fine. Appellant Muhammad Ahmed was convicted under section 109, P.P.C. and sentenced to death with fine separately. Appellants Mansoor Ali Babar, Umer Hayat, Syed Asif Ali, Muhammad Gulzar Khawaja Saleemuddin, Muhammad Fazil, Fahimul Haq and Asif Gulshanwala were convicted under section 396/34, P.P.C. with 5 years R.I. and fine separately.

35. In the third set of appeals, viz Criminal Appeals Nos.202, 208 of 1995 and 62 of 1996 appellants Muhammad Fazil, Khawaja Saleemuddin, Ahmed Zahoor and Fahimul Haq were convicted under section 302/34, P.P.C. with 10 years' R.I. and fine separately. They were also convicted under section 394/34, P.P.C. and sentenced to death. They were also convicted under section 307/34, P.P.C. with 5 years' R.I. and fine separately. Appell is Mansoor Ali babar, Karimullah Sharif, Umer Hayat, Saghir Ahmed S* ikh and Hafiz Ahmed Bux were convicted under section 109 read with section 34, P.P.C. and sentenced to death and fine separately.

36. From what has been discussed above, we are of the considered view that the convictions under sections 307/34, P.P.C. and 109, P.P.C. are not warranted by the law. In the instant case even no reference is made in the judgment to any of the 3 subsections of section 302, P.P.C. In the case of Muddasir alias Jimmy v. The State, reported in 1996 SCMR 3, the Honourable Supreme Court has laid down guidelines with regard to trial as well as the convictions to be awarded in the cases registered under amended section 302, P.P.C. It would be appropriated to reproduce hereunder the relevant placates for ready reference:‑‑ "(a) Penal Code (XLV of 1860)‑‑ S. 302‑‑‑Courts have bounden duty to specify relevant subsection of S.302 whereunder they have convicted/sentenced accused‑‑Mention of subsection of S.302 under which accused is convicted/sentenced would be in accordance with requirement of S.367, Cr.P.C. (b) Ibid‑‑‑ S.

304. Trial Courts alarmingly ignore 5.304 and Art. 17, Qanun‑e- Shahadat (1984), while recording evidence of witnesses‑‑‑It not only results in miscarriage of justice but also deters superior Courts it! rectifying errors or passing appropriate orders. S.304 plays pivotal role in determining fate of persons found guilty for Qatl‑i‑Amd under S.302."

37. Thus, from the placitums, referred hereinabove, it is crystal clear that it is mandatory for the trial Court to specify relevant subsections of section 302, P.P.C., where under the convictions have been awarded with detailed reasons. By not doing so the very purpose of the above Islamic provisions of laws becomes frustrated. The law referred by Mr. K.M Nadeem has no relevance with the present case as it relates to the year 1986, whereas the above Criminal Law (Second Amendment) (Ordinance No. VII) of 1990 came into force in 1990.

38. We are also fortified by unreported decision in Criminal Appeals Nos. 126 and 135 of 1995 and Criminal Jail Appeal Nos.26 and 69 of 1995 of this Court wherein reasons were given in detail and under the similar circumstances convictions and sentences were set aside and the cases were remanded for re‑trial.

39. From the above discussion we are of the considered view that the l trials in the above‑referred cases have not been conducted in accordance with law in force, as such the convictions and sentences are set aside and the cases are remanded to the trial Court for re‑trial in accordance with law. The trial Court would commence with the trial immediately and conclude the same as early as possible. N.H.Q./M‑37/K Cases remanded.