2018 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

Both the appellants were tried for the same offence in a single trial, but they have preferred appeals separately. This common judgment will dispose of both the appeals filed by the appellants namely Ali Gul (Criminal Application No.140/2010) and Ghulam Mehdi Abro (Criminal Application No.141/2010). The appellants have challenged the impugned judgment of conviction pronounced by the learned Additional Sessions Judge-VI, Larkana in Sessions Case No. 1217 of 2004 on 14.12.2010. The appellants were tried by the lower forum under sections 302, 504, 34, P.P.C. and after conviction, the sentence for life imprisonment was awarded to them.

2. The factual matrix of this case is that on 21.08.2004 at about 11:20 hours, complainant Oshaque Ali Abro (now deceased) lodged FIR at Police Station Rehmatpur against the appellants. He reported that Ghulam Mandi and other used to drink bhang near Shah Nawaz Bukhari-ji-Imam Bargah. He restrained them to use intoxication at the said place as it would cast a bad impression on the minds of youth, it annoyed Ghulam Mehdi and others. On the day of the incident, the complainant with Zahid Hussain Abro and Aandal Khan Bhutto were standing at the said Imam Bargah, when at about 10:45 hours, accused Ghulam Mehdi Abro with DBBL and Ali Gul Abro with SBBL guns came there. The accused Ali Gul abused the complainant and said that he would not be spared and they would kill him. Instantaneously, accused Ghulam Mehdi Abro fired from his gun upon the complainant, which hit him on his right leg knee and he fell to the ground with a cry. PWs Zahid Hussain and Aandal raised cries, due to which both the accused with their respective weapons decamped from the scene of offence towards the northern side.

3. The police sent the complainant to CMCH Larkana from where he was referred to Karachi for treatment. The epilogue of the incident culminated on the death of complainant on 02.9.2004 during treatment in a hospital in Karachi. As such, section 302, P.P.C. was also added in the already registered criminal case against the appellants/convicts. After the investigation, police submitted Final Report before the concerned Judicial Magistrate, and subsequently, the case was committed to Sessions Court being sessions trial. The case was entrusted to the trial court from where the sentence was awarded to the appellants.

4. The proceedings before the trial Court took place in the following manner: 1) Complainant lodged FIR on 21-08-2004 (Ex-15/A) and accused persons were arrested on 26-11-2004 (Ex-6/A) 2) Case papers supplied to accused on 28-12-2004 (Ex-01) 3) First charge framed on 15-12-2005 under sections 324, 504, 34 (Ex-05) to which both appellants pleaded not guilty (Ex-06 and 07) 4) Deposition of PW Ghulam Din recorded on 18-02-2006 (Ex-08) 5) Deposition of PW Aandal recorded on 07-06-2006 (Ex-09) 6) Amended charge framed on 17-01-2007 after insertion of section 302 due to death of Complainant Oshaque Ali (Ex-11) 7) Statement of process server regarding death of PW Gada Hussain recorded on 12-04-2007 (Ex-14) who produced Death Certificate of PW Gada Hussain (Ex-14/A) 8) Deposition of PW SIP Aijaz Khan recorded on 25-06-2007 (Ex-15) who produced FIR (Ex-15/A) 9) Deposition of PW HC Mukhtiar Shah recorded on 25-06-2007 (Ex-16) 10) The learned counsel for both the appellants before trial court filed a joint statement on 20-08-2007 for adopting the evidence recorded before the amended charge to which learned DDA recorded his 'no objection' (Ex-17) 11) Statement of process server dated 22-10-2007 regarding non-serving of process on PW Oshaque Ali (complainant) due to his death (Ex-18) 12) Deposition of PW Zahid Hussain recorded on 09-07-2009 (Ex-19) 13) Deposition of PW Darban Ali recorded on 09-07-2009 (Ex-20) who is marginal witness of different memos and produced Memo of Injuries of Injured (now deceased) complainant Oshaque All dated 21-08-2004 (Ex-20/A), Memo of Site Inspection and Recovery of Empties and Live Cartridges dated 21-08-2004 (Ex-20/B), Memo of House Search of accused Ghulam Mehdi dated 21-08-2004 (Ex-20/C), Memo of House Search of accused Ali Gul dated 21-08-2004 (Ex-20/D), Inquest Report dated 02-09-2004 @ 22:00 hours (Ex-20/E), Memo of Exhibit of Dead-body 02-09-2004 @ 22:00 hours (Ex-20/F), Memo of Receiving Clothes of Deceased dated 02-09-2004 (Ex-20/G) 14) Deposition of PW SI Habib-ur-Rehman (I.O.) recorded on 24-02- 2010 (Ex-21). He conducted investigation and submitted final report in the Court. 15) Deposition of PW ASI Abdul Ali recorded on 15-03-2010 (Ex-22). He prepared different memos and verified the same. 16) Deposition of PW Dr. Mushtaq Ahmed dated 02-04-2010 (Ex-23), He is well acquainted with Dr. Ghulam Muhammad Memon who conducted postmortem and produced Postmortem Report of deceased 17) Statement of DDPP for closing prosecution side (Ex-24) 18) Statement of appellant (accused) Ghulam Mehdi (Ex-25), he produced FIR lodged against him earlier to the incident by Baber Hussain brother of one prosecution witness PW Zahid Hussain and other relevant documents (Ex-25/A, 25/B, 25/C) 19) Statement of appellant (accused) Ali Gul (Ex-26)

5. Mr. Asif Abdul Razzak Soomro, learned counsel for the appellant Ali Gul Abro addressed the court at length. He contended that there are several contradictions, illegality and irregularity in the trial of appellants. According to him, there was ill-will between the parties and the Fed have also come on record through the statement of accused Ghulam Mehdi. He pointed out that in the instant case no site sketch was prepared due to which it is difficult to comprehend the entire episode properly. According to him, Complainant says in FIR that he was with Zahid Hussain and Aandal but Zahid in his deposition says that he was near the house of Saleem Raza. He submitted that it has come on the record that deceased Oshaque was going with vegetables in his hand, but no other document speaks about vegetables. He also submitted that the prosecution did not examine any of the medical officers who had attended the deceased in CMCH Larkana after receiving injuries. He pointed out that as per prosecution's story the person who was armed with DBBL gun shot at the deceased and not the one who was armed with SBBL gun. He pointed out certain contradictions in the statements of the prosecution witnesses especially PW Zahid Hussain and PW Darban Ali in approaching police station and shifting to the injured (now deceased). According to him, the appellant Ali Gul remained in custody for a considerable period during the investigation, but no recovery was affected from him. He pointed out that Tapedar being an important witness ought to be examined but neither the prosecution bothered to examine him nor produced the sketch of the place of the incident due to which the place of the incident is still in vague and misery.

6. Mr. Ali Nawaz Ghanghro learned counsel for the appellant Ghulam Mehdi Abro also addressed the Court and pointed out certain contradictions in the depositions recorded before the trial Court. He submitted that the place of the incident is a thickly populated area, but it is surprising that no other independent witness of the locality was examined and the Investigating Officer picked only 2/3 witnesses of his choice. According to him, it appears from the record that there was no one at the time of the incident as transpires from the last lines of deposition of PW Ejaz. He submitted that as per ocular account, injury was sustained on the right leg, but the 'Memo of Injuries' indicates that the injury suffered on the right thigh. He pointed out that the PW Andal did not support the prosecution version. In the end, he submitted that the prosecution could not establish the case beyond reasonable doubt.

7. Mr. Faiz Muhammad Larik representing the legal heirs of the deceased also argued at some length. According to him, the FIR is actually a dying declaration, and it is hard to believe that a person who was going to die would speak a lie. According to him the prosecution witnesses Zahid and Andal took the deceased to the hospital, and both of them in their deposition supported the prosecution case. He submitted that the FIR was promptly lodged by the deceased himself in which a specific role and motive were assigned. He admitted that there are certain contradictions, but according to him the same are not fatal for the case of the prosecution. He prayed for maintaining the judgment of trial Court.

8. Mr. Sardar Ali Rizvi, learned APG supported the impugned judgment by submitting that the prosecution has proved the case and succeeded to bring the guilt of the accused at home. However, he frankly admitted that some illegalities have been committed during trial. Regarding merits of the case, his contention is that none of the eyewitnesses deposed that the accused were not present at the scene of offence. According to him, non-recovery of crime weapon and non-preparation of site sketch is not the fault of complainant party. Regarding enmity, his contention is that the same is a double-edged weapon, which cuts both sides.

9. After hearing the valuable submissions of the learned counsel of either side as well as the learned APG, I have gone through the entire available material in the records and proceedings of the trial Court. In the instant matter, the learned Additional Sessions Judge has given too much weight and stress to the FIR and declare the same as dying declaration. Before going further, I would think it proper to discuss the FIR and to find out whether the same can be termed as 'dying declaration'.

10. The FIR (Ex- 15/A) is considered by the prosecution and the trial Court as an important piece of evidence against the appellants in the present case and therefore, it should be observed as to whether the dying declaration given by the deceased by way of FIR is trustworthy or not. The dying declaration have various qualities. It should be clear, and it should allege against the culprits with some clarity in his mind that he was going to die. The FIR of the instant case was written by the police in a routine manner, and it is also mentioned that the deceased was in his senses and he has signed the FIR himself after verifying its content. I am of the view that such FIR does not fulfill the requirements of a 'dying declaration' as mentioned in Article 46(1) of the Qanun-e-Shahadat. "

46. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) When it relates to cause of death. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the causes of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) ..........."

11. It has come on the record that the deceased himself has gone to the police station and lodged FIR. The injury was received to him on a non-vital part, meaning thereby because of such injury he was not under an expectation of death at the time of lodging of FIR.

12. However, there is another aspect of the case that pertains to charge. In the instant case, the trial court has framed the charges twice because of the new development that is the death of complainant. I have sketched out the different stages of trial in a tabular form in paragraph

4. Amongst those stages, the following are important:

1. FIR lodged on : 21-08-2004

2. Inquest, post-mortem etc. : 02-09-2004

3. Accused arrested on : 26-11-2004

4. First charge under section 324, P.P.C. framed on : 15-12-2005

5. Deposition of PW Ghulam Din on : 18-02-2006

6. Deposition of PW Aandal on : 07-06-2006

7. Amended charge under section 302 on : 17-01-2007

8. Adoption of previous evidence on : 20-08-2007

13. From the above details, it is clear that the first as well as amended charges were framed long after the death of the deceased. It is also clear from the above position of affairs that the deposition of two witnesses was recorded on the basis of the previous charge when the disease was already expired. I am of the view that the statements of PWs Ghulam Din and Andal was recorded at a time when the deceased were already expired, as such at that point the previous charge would not cover the depositions so recorded. The amended charge was also framed afterwards, meaning thereby that at the time of recording of the deposition of these two important witnesses there was no charge at all. Although, the fact of the death of the deceased Oshaque Ali has come in the deposition of these two witnesses, but it will make no difference. I am of the view that in a trial without charge, it can be said that a person who has convicted for an offence where such a grave mistake has been committed must not have been able to defend himself properly. I am of the view that there exists much probability of misleading in the mind of accused, and an opportunity of a fair trial was not provided to him. At this juncture, I would like to reproduce section 232 of the Code of Criminal Procedure (here in after referred as 'the Code'):

232. Effect of material error: (1) If any Appellate Court, or the High Court [or the Court of Session] in the exercise of its powers of revision or of its powers under Chapter XXVII is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit. (2) If the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the, conviction.

14. Under article 10-A of the Constitution of Pakistan, a fair trial is the right of the accused and if there is a minor probability of misleading in his defence due to an error of prosecution or Court, it cannot be said that the opportunity of a fair trial was offered to accused. I am of the view that the defect of trial in the present case is not curable and the same does not cover under the provision of section 535 of the Code, which reads as: "

535. Effect of omission to prepare charge: (1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal prevision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge."

15. I am of the view that it amounts to force an accused not only to face a trial without charge but also face a conviction followed a sentence of life imprisonment, which is certainly a 'failure of justice' and the same is amounting to depriving a citizen of Pakistan from his valuable right of fair trial. In this respect, I would like to take reliance from a case reported as Saeedullah v. Asfandiyar and another (2017 PCr.LJ Note 5).

16. It is very much clear from the above referred provisions of law that in absence of a proper charge, there would be no other option but to remand the case for a new trial after framing a proper charge. I therefore set aside the conviction and sentence awarded to the appellants and remand back the case to the trial Court with the direction to frame the charge afresh and proceed de novo trial by putting the case on fast track and conclude it within a period of six months. Before pronouncement of judgment by the trial Court, the appellants were on bail and their bail will remain intact on the same terms and conditions, however they have to execute a fresh bond of surety up to the satisfaction of trial Court. JK/A-65/Sindh Case remanded.