2023 PLP 492 (MLD)

NAIMATULLAH PHULPOTO, J.

Appellants Zahid Ali and Zulfiqar Ali both sons of Gul Hassan Khaskheli were tried by learned 1st Additional Sessions Judge (MCTC), Sanghar in Sessions Case No.382 of 2013 for offences under sections 302, 324, 449, 337-A(i), 337-F(i), 337-F(ii), 114, 34, P.P.C. vide Crime No.94 of 2013 registered at P.S Sinjhoro. On conclusion of the trial vide its judgment dated 27.05.2019, the appellant Zahid Ali was convicted under section 302(b), P.P.C. for committing Qatl-i-amd of Ghulam Muhammad alias Yateem and Sikandar Ali and sentenced to death. He was directed to pay Rs.300,000/- (Three lac) as compensation in terms of section 544-A, Cr.P.C. for each murder to be paid to the legal heirs of deceased. He was also convicted under the other sections for which he was charged as mentioned in the impugned judgment. Accused Zulfiqar Ali was acquitted by the trial court for want of evidence and case of absconding accused Riaz was kept on dormant file. By this single judgment we intend to decide the aforesaid appeal filed by appellant Zahid Ali and confirmation reference made by the trial court.

2. Brief facts of the prosecution case as mentioned by the trial court in paras Nos.1 and 2 of the impugned judgment are as follows:- "

1. At the outset, it may be mentioned that this is a case where unfortunately one elderly man and a teenage boy have lost their lives. Not only these, but two females of the family of deceased have also received injuries and now the life of two accused present before the Court can be taken away in case of their conviction. The case is vital in terms of doing justice to the parties an endeavour has been made under the expeditious justice initiative program to decide the instant case expeditiously and to do prompt justice.

2. Messer Zahid Ali and Zulfiqar Ali, the accused, have been charge sheeted by Police Station Sinjhoro for the offences under sections 302, 324, 449, 337-A(i), 337-F(i), 337-F(ii), 114, 34, P.P.C., of the Pakistan Penal Code (hereinafter referred to as the P.P.C.) wherein the allegations that; on 25.07.2013, at 1630 hours, Complainant Iqbal Ahmed Khaskheli lodged FIR, at P.S Sinjhoro, stating therein that he is a married person having two sons and two daughters, his elder son Sikander was aged about 12/13 years. He used to reside with his father Ghulam Muhammad alias Yateem. About two years ago, Mst. Aisha sister of the Complainant got married to Zahid Ali son of Gul Hassan Khaskheli, resident of Shahdadpur from the said wedlock she had a two months old daughter. Due to a dispute between them, Mst. Aisha obtained Khulla which annoyed Zahid Ali. On 23.07.2013, in the night, Complainant, his father, son, sister and mother had slept after taking the meal. On 24.07.2013, in Sehri time after having Sehri they were sitting in the house and the outer door was ajar. At about 0630 hours, accused Zahid Ali having dagger (Kaati) entered into the house, his brother Zulfiqar Ali was having a pistol and Riaz son of Muhammad Haroon Khaskheli having hatchet, both of them were standing inside the door, they instigated him (Zahid Ali) to commit murder of Ghulam Muhammad and his family. On their instigation, Zahid Ali caused dagger (Kaati) blows to elderly Ghulam Muhammad on right side of his waist (kukh) and on other parts of his body, due to which he fell down, the boy Sikandar running in, came in front of accused and accused Zahid Ali also caused dagger (Kaati) blows to him and he fell down. Females of the family Mst. Hawa and Mst. Aisha came for rescuing, accused also caused them dagger (Kaati) blows. He caused dagger (Kaati) blows to Mst. Hawa on her left abdomen while Mst. Aisha received serious injuries. On cries, Ghulam Shabbir and Muhammad Ramzan Khaskheli maternal uncles, who happened to be the neighbours of the Complainant came running and tried to apprehend accused. On seeing them, accused Zahid Ali, Zulfiqar Ali and Riaz escaped outside. After that, they saw that elderly Ghulam Muhammad and teenage boy Sikander Ali had succumbed to their wounds at the spot. Mst. Hawa and Mst. Aisha were brought and admitted into Civil Hospital, Sanghar, Police also reached the hospital with dead bodies and police after conducting the postmortems of deceased and completing formalities handed over the dead bodies for funeral ceremonies. Mst. Aisha was referred and admitted to Nawabshah hospital owing to her injuries. Thereafter, the Complainant went to Police Station Sinjhoro and lodged FIR of the incident against accused of the offence punishable under sections 302, 324, 114, 34, P.P.C." It was recorded vide Crime No.94/2013 for offences under sections 302, 324, 449, 337-A(i), 337-F(i), 337-F(ii), 114, 34, P.P.C. against accused at P.S Sinjhoro.

3. After usual investigation, challan was submitted against accused Zahid while accused Zulfiqar and Riaz were shown as absconders. Both the remaining accused were declared as proclaimed offenders. Charge was framed against the accusd Zahid Ali at Ex.6 to which he pleaded not guilty and claimed to be tried. After framing of charge against accused Zahid, prosecution examined complainant Iqbal Ahmed (PW-1) at Ex. 09, Mst. Aisha injured (PW-02) at Ex.10, Mst. Hawa injured (PW-03) at Ex.11. Thereafter, accused Zulfiqar Ali was arrested and amended charge was framed at Ex.13. Prosecution examined the complainant Iqbal Ahmed (PW-1) at Ex.19, Mst. Aisha (PW-02) Ex.20, Mst. Hawa (PW-03) Ex.21, Ghulam Shabir (PW-04) Ex.22 and P.C. Ghulam Rasool (PW-05) Ex.23. On 07.03.2019, the defence counsel moved an application under section 227, Cr.P.C. at Ex.27, which was allowed by the trial court. Charge was again amended at Ex.28. On 26.04.2019 defence counsel moved an application under section 231, Cr.P.C for re-examining the prosecution witnesses at Ex.29. which was partially allowed by the trial court.

4. In order to prove its case, prosecution then examined Tapedar Liaquat Ali (PW-6) at Ex.30, Dr. Najma Hyder (PW-07) Ex.31, Dr. Arshad Ali Rajput (PW-08) Ex.32, complainant Iqbal Ahmed (PW-09) Ex.33, Mst. Aisha (PW-10) Ex.34, Mst. Hawa (PW-11) Ex.35, Ghulam Shabir Khaskheli (PW-12) Ex.36, Muhammad Ramzan mashir (PW-13) Ex.38, Ali Nawaz Khaskheli second mashir (PW-14) Ex.39, ASI Shafi Muhammad I.O. (PW-15) Ex.40, ASI Mehmood Ahmed Jat (P.W-16) Ex.41 and ASI Ashique Hussain mashir (PW-17) Ex.42. Thereafter, prosecution side was closed.

5. Statements of accused Zahid Ali and Zulfiqar Ali were recorded under section 342, Cr.P.C at Ex.44 and 45 respectively. Accused claimed false implication in this case and denied the prosecution allegations. Accused Zahid Ali produced four news clips. Accused did not lead any evidence in their defence and did not examine themselves on Oath in disproof of the prosecution allegations.

6. Trial Court after hearing the learned counsel for the parties and assessment of the evidence available on record vide its judgment dated 27.05.2019, convicted and sentenced the appellant Zahid Ali to death as stated above and made Reference to this court for confirmation of death sentence of appellant Zahid Ali. However, the trial court acquitted accused Zulfiqar Ali son of Gul Hassan Khaskheli, for want of evidence while case of accused Riaz son of Haroon Khaskheli was kept on dormant file as stated above.

7. We have carefully heard the learned counsel for the parties and perused the record minutely. First formal charge was framed against accused Zahid Ali by the learned trial court on 01.04.2014, for offences under sections 302, 324, 114, 34, P.P.C. at Ex.6. Accused Zahid pleaded not guilty and claimed to be tried. Prosecution examined complainant Iqbal Ahmed (PW-1) at Ex.9, Mst. Aisha (PW-2) at Ex.10 and Mst. Hawa (PW-10) at Ex.11). Thereafter accused Zulfiqar Ali was arrested and the amended charge was framed against accused Zahid Ali and Zulfiqar Ali at Ex.13. Both the accused pleaded not guilty and claimed to be tried. Prosecution examined after amendment of the charge, Iqbal Ahmed (PW-1), complainant of the case at Ex.19, Mst. Aisha (PW-2) at Ex.20, Mst. Hawa (PW-3) at Ex.21, Ghulam Shabir (PW-4) at Ex.22 and Ghulam Rasool (PW-5) at Ex.23. Learned trial court vide order dated 10.04.2019 allowed the application for amendment of the charge as some sections regarding injuries to the ladies were not mentioned in the charge. Amended charge was framed against accused Zahid Ali and Zulfiqar Ali for offences under sections 302, 324, 337-A(i), 337-F(i), 337-F(ii), 114, 34, P.P.C. Charge was amended according to Headwise on 26.04.20219. Trial court vide order dated 06.05.2019 allowed the application under section 231, Cr.P.C for recalling and re-examining the witnesses for limited purpose to the extent of Sections which were subsequently added vide amended charge dated 26.04.2019. Thereafter, evidence of Liaquat Ali (PW-6) was recorded at Ex.30, Dr. Najma Hyder (PW-7) at Ex.31, Dr. Arshad Ali (PW-8) at Ex.32, complainant Iqbal Ahmed was re-called and re-examined in terms of the order dated 05.06.2019. His examination-in-chief is reproduced as under:- "I have come before this Court for my re-examination in compliance of the order dated 6.5.2019 and I say that on 24.7.2013 I along with my mother, my father, my son Sikandar, my sister Mst. Ayesha and my mother Hawa were present inside the house. At about 6:30 a.m. accused Zahid, Zulfiqar and Riaz tress passed into our house to commit an offence and caused injuries to my father Ghulam Muhammad and my son Sikandar Ali and to my mother and sister. Additional, I say that my evidence has earlier been recorded before the trial court on 30.3.2016 and 27.6.2018 which is correct." Mst. Aisha (PW-10) has deposed that on 24.07.2013 at 6-00 a.m accused Zahid Ali, Zulfiqar Ali and Riaz tress passed into their house. Accused Zulfiqar and Riaz instigated accused Zahid to commit the murder of all family members. Accused Zahid Ali firstly inflicted dagger blows to her father, then to Sikandar, both died at spot and accused also caused dagger blows to Mst. Aisha and to her mother. She has also stated that her evidence has already been recorded before this court and she is adopting the same evidence. Mst. Hawa (PW-4) has deposed that accused tress passed into their house. Accused Zulfiqar and Riaz instigated accused Zahid to kill her husband Ghulam Muhammad and Zahid Ali caused dagger blows to her husband Ghulam Muhammad and he gave blows to Sikandar both died at the spot. Thereafter, she sustained injuries. She also adopted her earlier evidence. Ghulam Shabir (PW-12) was re-called and his evidence was recorded in terms of the order dated 06.05.2019. Further stated that his evidence is same which has already been recorded.

8. Learned trial court has committed several illegalities while conducting the trial which are not curable under the law. For example:- (a) Trial court framed charge defective. (b) After amendment of the charge evidence of material witnesses was recorded to some extent who adopted the evidence which was recorded in absence of one accused. (c) The piece of motive was not put to the accused Zahid Ali during his examination under section 342, Cr.P.C which could not be used against him for conviction and sentence.

9. A bare perusal of section 222(1), Cr.P.C. reveals that the charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. In this regard the august Supreme Court of Pakistan has provided ample guidance in the case titled "S.A.K. Rehmani v. The State" (2005 SCMR 364) which runs as under: "The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offences with which the accused is convicted is not brought out in the charge, then the charge is defective". The apex court in the above mentioned judgment further clarifies, "In other words it can be said that the main object of framing of charge is to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue so that evidence could be confined to such points". We would like to reproduce another Para of the above quoted judgment which resolves the controversy we are facing with, in the following words, "Where a person is convicted of an offence and the Appellate Court is of the view that he has been misled in his defence by the absence of a charge or by an error in the charge, appropriate action can be taken including remand of the case with direction for making suitable amendment in the charge."

10. We have noted with deep concern that after amendment of the charge PWs Iqbal Ahmed, Mst. Aisha, Mst. Hawa and Ghulam Shabeer were re-called and re-examined in terms of the order dated 06.05.2019 but they did not give the complete evidence and gave only evidence in 2/3 lines then they adopted their evidence already recorded. It may be mentioned that firstly Zahid Ali was arrested and three PWs namely Iqbal Ahmed, Mst. Aisha and Mst. Hawa were examined, thereafter accused Zulfiqar Ali was arrested and then the charge was amended. Evidence of PWs Iqbal Ahmed, Mst. Aisha and Mst. Hawa was recorded and at that time accused Zulfiqar Ali was not present before the court. It is the requirement of the law that evidence should be recorded in presence of the accused inspite of that evidence of PWs Iqbal Ahmed, Mst. Aisha, Mst. Hawa and Ghulam Shabeer which was earlier recorded was adopted. Such procedure adopted by the trial court was illegal as held by this court in Criminal Jail Appeal No.D-81 of 2019 [Zubair Ahmed v. The State] vide judgment dated 17.11.2020. There is also third aspect of the case as appellant Zahid has been convicted under section 302(b), P.P.C. and sentenced to death. In the FIR motive was set up that appellant Zahid Ali committed offence as the marriage of his previous wife Mst. Aisha was dissolved by means of Khula which caused much annoyance to the appellant Zahid Ali. Trial court while recording the statement of accused under section 342, Cr.P.C failed to put up question of above mentioned motive to accused. Scanned copy of the statement of appellant Zahid Ali recorded under section 342, Cr.P.C is pasted hereunder:- It is well settled by now that piece of evidence not put to an accused during his examination under section 342, Cr.P.C could not be used against him for maintaining the conviction and sentence as held in the latest judgment of Honourable Supreme Court of Pakistan in Criminal Appeal No.77 of 2020 [Jan Muhammad v. The State] dated 04.03.2021. The relevant paras are re-produced as under:- "

5. It has been observed by us with concern that none of the afore mentioned pieces of evidence has been put to the appellant while examining him under section 342, Code of Criminal Procedure. It has been laid down many a time by this Court that a piece of evidence produced by the prosecution against an accused if not put to accused while examining him under section 342, Code of Criminal Procedure cannot be used against him. The rationale behind it is that the accused must know and then respond to the evidence brought against him by the prosecution. He (accused) must have firsthand knowledge of all the aspects of the prosecution case being brought against him. It appears that even the learned Judge in chambers, of High Court while reappraising evidence available on record did not consider this aspect of the matter. Keeping in view the peculiar circumstances of the case, learned Counsel for the appellant and learned Additional Prosecutor General, Sindh assisted by widow of deceased are in agreement that the matter needs to be remanded to the learned trial Court for re-recording statement of appellant under section 342, Code of Criminal Procedure while putting all pieces of prosecution evidence produced during trial to him, giving him an opportunity to know and respond to the same.

6. For the foregoing, the instant criminal appeal is allowed. The impugned judgments of the learned High Court and that of the learned trial Court are set aside. Resultantly, the conviction and sentence of the appellant is also set aside. He shall be treated as an under-trial prisoner. The learned trial Court shall record the statement of appellant under section 342, Code of Criminal Procedure afresh by putting him all pieces of prosecution evidence, enabling him to know and respond to the same and shall decide the case after hearing the parties, within one month of the receipt of this order. In case of conviction of appellant by the trial Court and in the event of filing a criminal appeal by him before the learned High Court, the same shall be decided within one month of its filing. A copy of this order shall be sent to the Registrar, High Court of Sindh, Karachi for its circulation among all the Judges of trial Courts in the Province of Sindh for perusal and strict compliance."

11. For the aforesaid reasons while respectfully relying upon the above stated judgment of Honourable Supreme Court, keeping in view peculiar circumstances of the case, learned Counsel for the appellant as well as learned Deputy Prosecutor General, Sindh are in agreement that the matter needs to be remanded to the trial Court for re-recording the evidence of prosecution witnesses afresh after amendment of the charge. On conclusion of the trial, learned trial court is directed to re-record the statement of appellant Zahid Ali under section 342, Cr.P.C while putting all incriminating pieces of prosecution evidence produced during trial to him, giving him an opportunity to know and respond to the same.

12. For the aforesaid reasons, the instant criminal appeal is partly allowed. Impugned judgment of the trial court to the extent of appellant Zahid Ali is set aside. Resultantly, the conviction and sentence of the appellant Zahid Ali are also set aside. Appellant Zahid Ali shall be treated as an under-trial prisoner. Learned trial Court shall record the evidence of the prosecution witnesses namely complainant Iqbal Ahmed, PWs Mst. Aisha, Mst. Hawa and Ghulam Shabeer afresh (whose evidence was earlier adopted illegally), then to record the statement of appellant Zahid Ali under section 342, Cr.P.C afresh by putting him all pieces of prosecution evidence, enabling him to know and explain the same and shall decide the case within three (03) months of the receipt of this judgment. Confirmation reference made by the trial court is answered in NEGATIVE.

13. In view of the above, appeal as well as confirmation reference are accordingly disposed of. JK/Z-12/Sindh Order accordingly.