2025 PLP 740 (MLD)

Adnan-ul-Karim Memon, J.

Appellant Hemoon has filed the instant Criminal Jail Appeal against the judgment dated 14.11.2019, passed by the learned Additional Sessions Judge-I/ MCTC Umerkot in Sessions Case No. 89 of 2019 (Re-The State v. Hemoon) arising out of FIR No.27 of 2019 under section 302 P.P.C. of Police Station Shadi Palli, whereby the appellant was convicted and sentenced in following terms:- "In view of the above-discussed points which are answered as affirmative, I am of the opinion that prosecution has successfully established the charge against appellant Hemoon for murder of deceased Thaku. In order to determine the quantum of sentence it is to be seen that appellant had caused only single hatchet blow and that too blunt side which is not gruesome and brutal murder. Such situation gave rise to the mitigating circumstances, due to which capital punishment of death would be harsh. Therefore, taking a lenient view I convict, the appellant Hemoon son of Heero alias Habro Kolhi under section 265-H(2) Cr.P.C. for offence punishable under section 302(b) P.P.C. and sentence him to life imprisonment as Tazir and to pay Rs.100,000/- as compensation under section 544(A) Cr.P.C with direction to pay the same to legal heirs of deceased. In case of default, he shall suffer six months more simple imprisonment. The benefit of section 382-B Cr.P.C is extended to the appellant. The appellant is produced in custody and remanded back to Central Prison Hyderabad to serve out the sentence as per law. Copy of the judgment be supplied to convicted appellant free of cost under receipt.

2. The facts of the case are that On September 4, 2019, Hemoon, armed with a hatchet, attacked Thaku, a cousin of the complainant, in a village. The attack was motivated by a previous disagreement over grass-cutting. Thaku sustained fatal injuries and died later in a hospital. It is alleged that Nanji (Thaku's brother), Kewal, and Shevo witnessed the attack and attempted to intervene but were unsuccessful. The incident was reported to the police on the same day, and a post-mortem examination was conducted at the Taluka Hospital in Pithoro, the Investigating Officer (IO) examined the dead body of the deceased, prepared necessary documents, and collected evidence. He then transferred the case to Inspector Azizullah Seenharo, who continued the investigation by securing evidence, recording statements, arresting the suspect, and recovering the murder weapon (hatchet). The hatchet was sent for chemical analysis, and the IO submitted a charge sheet against the appellant to the concerned Magistrate, who referred the case to the Sessions Judge for trial.

3. The appellant was formally charged with a crime. He pleaded not guilty and requested for fair trial. During the trial, the prosecution examined PW-1 Dr. Mahadev as Ex.03. He produced a police letter and post-mortem report at Ex.03-A and 03-B respectively. PW-2 Tapedar Hamzo was examined at Ex.04, he produced the letter of police and site plan as Ex.04-A and 04-B. PW-03 complainant Nanji was examined at Ex.05. He produced FIR at Ex.05-A. PW-04 Kewal Ram was examined at Ex.06, he produced a receipt of the dead body, memo of site inspection, memo of arrest, and memo of recovery as Ex.06-A to 06-D respectively. PW-5 Kirshan was examined as Ex.07, he has produced lash chakas form, Danishtnama, memo of the dead body, and memo of cloths of deceased as Ex.07-A to 07-D. PW-07 IO/ ASI Muhammad Sharff was examined as Ex.09. He produced D.D entries Nos. 09 and 10 over one leaf Dated: 04-09-2019 as Ex.09-A and D.D entry No. 13 dated: 04-09-2019 as Ex.09-B. The learned ADPP had given up evidence of PW Shevo through statement as Ex.10. PW-08 I.O/Inspector Azizullah Seenharo was examined as Ex.11. He produced a letter addressed to the chemical examiner, report of the chemical examiner and his movement D.D entries as Ex.11-A to 11-F.

4. The statement of appellant was recorded under section 342 Cr.P.C. as Exh.13, appellant denied the allegations levelled by the prosecution and claimed to be innocent. According to him, the deceased had sustained injury due to a road accident and died, but the complainant due to a dispute with him over an outstanding amount, falsely implicated him in this case to settle the dispute as per his wish. However neither he examined himself on oath as required under section 340(2), Cr.P.C. nor lead defense evidence. After hearing the parties, the learned trial Court passed impugned judgment and convicted the appellant as discussed supra.

5. At the outset the learned counsel for the appellant argued that the absence of defense counsel during the examination-in-chief of witnesses in a capital murder case violated the accused's fundamental right to a fair trial. He emphasized that the defense counsel's presence is crucial for ensuring the integrity of the evidence and preparing a strong case. Additionally, the absence of bloodstains on the alleged crime weapon, despite a chemical report suggesting the presence of blood, creates a reasonable doubt in the prosecution's story, potentially benefiting the appellant. He argued that the prosecution failed to prove the appellant's guilt beyond a reasonable doubt. He criticized the prosecution witnesses as biased and questioned the credibility of their testimonies. He also pointed out inconsistencies in the timeline of events and the evidence presented. He emphasized the lack of independent witnesses, bloodstains, and the possibility of a prior dispute between the deceased and the appellant. He further argued that the sketch of the scene did not indicate the appellant's presence, and the medical officer admitted that the deceased's injuries could have been caused by a fall or other means. However, he highlighted the chemical report, which confirmed human blood on the crime weapon. However, the Lash chakas form, Danishtnama, memo of dead body examination, and memo of recovery of hatchet do not transpire that these items were stained with any blood at the time of recovery, which shows false involvement of the appellant in the present case. He relied upon the cases of Muhammad Arshad v. Qasim Ali and others [1992 SCMR 814], Muhammad Ashraf Javeed and another v. Muhammad Umar and others [2017 SCMR 1999], Irfan Ali v. The State [2015 SCMR 840], Khalid Mehmood v. The State and others [2021 SCMR 810], Muhammad Asif v. The State [2017 SCMR 486], Mst. Rukhsana Begum and others v. The State [2017 SCMR 596], Riasat Ali and others v. The State and another [2024 SCFMR 1224] and Nadir Khoso and others v. The State and others [2024 YLR 1565], Therefore, he prayed for the acquittal of the appellant on the grounds of reasonable doubt.

6. At the initial stage, the learned Additional Prosecutor General assisted by the learned counsel for the complainant argued that the appellant' was named in the FIR as the killer, supported by medical and eye-witness evidence. The crime weapon, a hatchet, was recovered at the accused's pointing, stained with blood. The witnesses were naturally at the scene as it was near their homes. They requested the accused's conviction be maintained.

7. I have heard the learned counsel for the parties and perused the record with their assistance and case law cited at the bar.

8. PW-1 Dr. Mahadev deposed in cross-examination that except for the fatal injury, no other mark of violence was seen on the dead body. He admitted that the dead body was 06-08 hours old and that possibly such injury could have been caused by falling from a wall or otherwise; he admitted that he prepared a post-mortem report after consulting with a senior medical officer. He admitted that he did not preserve the viscera. He admitted that blood was oozing from the wound and left ear of the deceased.

9. PW-03 Complainant Nanji deposed in the cross-examination that he did not make a complaint to the police on 03.09.2019 when hot words were exchanged between the accused and deceased. He admitted that he did not make a complaint regarding the hot word exchanged between the accused and the deceased to the family members of the accused. He admitted that he along with PWs Thakoo, Kewal and Shivo went to their land. He admitted that Deceased Thakoo was his brother PW Kewal was/ is his brother and PW Shivo was/ is his son. He admitted that the accused Hemoon was/is his cousin. He admitted that he did not inform the police of the Police Station concerned when they shifted the dead body to Hyderabad. He admitted that the Police did not obtain his signature on paper while visiting place of incident. At the time of the site inspection, his brother Kewal and his son Shivo were present there.

10. PW-04 Kewal Ram admitted in the cross-examination that there was/ is no blood mark on the hatchet.

11. PW-5 Kirshan deposed in the cross-examination that the clothes of the deceased were sealed in Taluka Hospital Pithoro.

12. PW-06 Pirago deposed in the cross-examination that Dr. Mahadev sealed the clothes of the deceased.

13. PW-07 I.O/ASI Muhammad Sharif deposed in the cross-examination that the complainant had not come to the police station to obtain a police letter and he saw the dead body of deceased Thakoo in the mortuary.

14. PW-08 I.O/Inspector Azizullah Seenharo deposed in the cross-examination that village Idrees Nohri was near to place of incident. He did not enquire about the incident from the nearby villagers. He admitted that there was no dry blood mark on the hatchet. He admitted that the hatchet can be purchased from the market along with its handle. He admitted that he received the chemical report with a delay of about 20 days.

15. The legal issue in this case is whether the examination-in-chief of witnesses recorded in the absence of the accused's legal counsel was/violates his right to a fair trial.

16. The learned counsel for the appellant pointed out that the proceedings initiated against the appellant by the trial court were/are not under the law, as the associate of the defense counsel did not have the legal authority to record the examination in chief of the witnesses in the absence of the defense counsel. This violated the accused's right to a fair trial under Article 10-A of the Constitution.

17. From the perusal of the evidence it appears that the evidence of Pws Nanji, Kewal Ram and Kirshan had been recorded in the absence of the defense counsel. It is against the principle of fair trial and fair opportunity, therefore it is suggested that the trial has been vitiated as the case involves capital punishment, in view of the dictum as laid down in the case of Ghulam Rasool Shah v. The State (2011 SCMR 735) the Supreme Court has held as under:- "

14. Undeniably, to ascertain eh truth or falsity to a charge the statements of the witnesses are judged by conducting cross-examination. It is always said to be the most powerful engine to test the credibility. Statements recorded without going through mill of cross-examination is bound to result in injustice and substantial injustice may occur to an accused. Safer principle is to allow cross-examination by granting reasonable opportunity. Similarly, provision of a defence counsel at State expenses should be out of lawyers having acumen, interest and some experience of trial of murder case. Though the accused have no choice claiming engagement of a particular counsel at State expenses yet he should be given the choice to select one of the counsel out of list of defence counsel maintained by the Court.

15. Having considered the case of the appellants, we are of the view that the appellants should be given time to engage a counsel privately of their own choice, failing which the learned trial Court shall provide them the defence counsel at state expenses of their choice, out of the list maintained by the Court. If the appellants fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expenses, the Court will be at liberty to proceed with the trial, and the defence counsel so appointed shall be called upon to conduct cross-examination on prosecution witnesses and call for evidence in defence.

16. For what has been discussed above, we allow the appeals, set aside the judgment of the learned Courts below, and remit the case back to the trial Court for a de novo trial. Learned trial Court shall consider the question of its jurisdiction in terms of section 38 of the Anti-Terrorism Act, 1997, before framing of charge. The appellants shall be treated as, under trial prisoners".

18. At this stage, the learned counsel for the complainant and learned APG were confronted with the legal position of the case that the examination in chief of witnesses Nanji (Ex.05), Kewal Ram (Ex.06) and Kirshan (Ex.07) were recorded in the absence of defense counsel, and their cross-examination was reserved on the request of his associate which was later on conducted.

19. In a fair and transparent criminal justice system, the right to confrontation is the hallmark of fair trial protection. The right to confrontation is considered an integral element of the right to a fair trial. It was held in the case of Muhammad Bashir v. Rukhsar (PLD 2020 SC 334) by the Supreme Court of Pakistan that the right to confront one's accuser is a vital part of the right to a fair trial. It is well-settled law that a right provided under the statute cannot be abridged or taken away without an explicit provision of law, which in the present case is not available in statute books. A right provided under the law, in the absence of a provision to the contrary, cannot be impliedly taken away. Even otherwise, after declaring that the right to confront one's accuser is part of the right to fair trial ensured under Article 10-A of the Constitution, had there been any provision to abridge such right, it would have been ultra vires conflicting with the constitution. Besides in a murder case, under Paragraph 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars, could only be proceeded on the appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused at State expenses. In the instant case, no doubt a counsel was engaged by the appellant to defend him, but he on the date when the case proceeded could not appear before the learned trial Court, and in his absence, the examination in chief of the aforesaid witnesses were recorded in capital sentence cease. In that situation, the examination-in-chief of the witnesses, so recorded by the learned trial Court, in the absence of legal counsel of the appellant could hardly be said to be under the requirement of law. It is settled by now that things are to be done in a manner prescribed by law if done otherwise, would be illegal. In these circumstances, the appellant has the right to contend through his learned counsel that he has been denied the right to a fair trial.

20. Additionally, Section 340 of the Cr.P.C. grants every accused person the right to be "defended" by a lawyer. This is different from simply being "represented" by a lawyer. This right includes access to the lawyer for private consultations and sufficient time for the lawyer to prepare the case. The law provides guidelines on how the right to be defended should be implemented. The importance of ensuring that accused persons have adequate access to legal representation and sufficient time for their lawyers prepare their cases. This is crucial for upholding the principles of justice and ensuring that the accused person's rights are protected. Besides, there are inconsistencies between various documents related to a case involving a crime weapon.

21. The second issue is whether the crime weapon, a hatchet, was contaminated with human blood. The inconsistencies identified include discrepancies between the Chemical Examination Report, the lash chakas form, the danishtnama, the memo of dead body examination, and the memo of securing the crime weapon. These discrepancies cast doubt on the conclusion that the hatchet contained human blood.

22. To resolve these inconsistencies, the judicial propriety demands that, the matter should be remitted to the trial court for further proceedings. The trial court should record the examination in chief of PWs Nanji (Ex.05), Kewal Ram (Ex.06) and Kirshan (Ex.07) and provide opportunity to defence counsel to cross-examine them. This would provide a clear understanding of the circumstances surrounding the recovery and examination of the hatchet. The Chemical Examiner should be examined by the court to clarify the findings of their report and address any inconsistencies with the other documents. The Chemical Examiner should explain the methodology used, the results obtained, and the basis for their conclusion regarding the presence or absence of human blood on the hatchet. The defense counsel should be allowed to cross-examine the chemical examiner to challenge their findings and explore any potential weaknesses in their methodology or conclusions. This would provide an opportunity for the defense to present their arguments and raise doubts about the reliability of the evidence. By following these steps, the trial court can ensure that the inconsistencies are thoroughly investigated, the evidence is properly evaluated, and justice is served.

23. At this stage, both the parties present in court agreed to remit the case to the trial court for recording of evidence in the presence of counsel for the appellant and examination of chemical examiner on the subject issue.

24. For what has been stated above, I have no hesitation in holding that conviction and sentence recorded by the trial Court are not sustainable in law and the same is set aside, therefore by consent of the parties, the instant appeal is allowed to the extent that the case is remanded back to the trial Court with direction to record the evidence of prosecution witnesses Nanji, Kewal Ram and Kirshan and Chemical Examiner, in manner, discussed above. Thereafter, the learned trial Court after hearing the parties shall decide the case strictly under the law. The trial court is directed to conclude the trial within two months after receipt of this judgment without further delay on a day-to-day basis, if required, without any fail. Report qua the compliance of this judgment shall be submitted to the Additional Registrar of this Court.

25. This Criminal Jail Appeal is disposed of in the above terms. JK/H-2/Sindh Order accordingly.