2019 PLP 654 (MLD)

NAIMATULLAH PHULPOTO, J.

Abdul Rasheed alias Zahid, Nadeem and Zeeshan alias Mani, appellants, were tried by learned Judge, Anti-Terrorism Court-VI, Karachi in Special Cases Nos.B-87 and B-88 of 2015. On conclusion of trial, vide judgment dated 23.12.2017, appellants were convicted and sentenced as under:

(1) Accused Abdul Rasheed alias Zahid son of Abdul Waheed, Nadeem son of Abdul Rasheed and Zeeshan alias Maani son of Muhammad Shareef are convicted under section 7(1)(a) of the Anti-Terrorism Act, 1997, read with section 302(b), P.P.C. and they are awarded death sentence, to be hanged till their death, with compensation of Rs.5,00,000/- (Five lacs) each to be paid to the legal heirs of the victim. (2) Accused Abdul Rasheed alias Zahid son of Abdul Waheed, Nadeem son of Abdul Rasheed and Zeeshan alias Maani son of Muhammad Shareef are also guilty of an offence under section 367, P.P.C. and they are convicted and awarded to suffer Rigorous Imprisonment for five years and fine of Rs.50,000/- each, in default, they shall serve six months more. (3) Accused Abdul Rasheed alias Zahid son of Abdul Waheed is also convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and he is sentenced to undergo R.I. for 7 years, with fine of Rs.10,000/- in case of default in payment of fine, he shall suffer a simple imprisonment of another six months. All the sentences were ordered to run concurrently. Appellants were extended benefit of section 382-B, Cr.P.C. Confirmation Reference was made to this Court by the trial Court in terms of section 374, Cr.P.C. Appellants preferred appeals against conviction and sentences.

2. This Court vide order dated 13.09.2018, passed the following orders. "Learned counsel for the parties jointly pointed out that in this case Muhammad Usman was the deceased, whose post-mortem examination was not conducted during investigation Mr. Munir Bukhsh Bhutto, Judge, Anti-Terrorism Court-VI, Karachi in his judgment dated 23.12.2017 has discussed post-mortem report of deceased Jahangir Hasan instead of Muhammad Usman. Surprisingly, internal and external injuries of deceased Jahangir Hasan have been mentioned by learned Judge, Anti-Terrorism Court-VI in his judgment. Learned D.P.G. submits that Jahangir Hasan was not deceased in this case. Learned D.P.G. further pointed out that learned Judge has mentioned in the judgment hat blood-stained helmet of deceased was secured from the place of incident but according to learned D.P.G. It was not the case of the prosecution. In the above circumstances, clarification of learned trial Judge is required before hearing of the appeals. Call for comments of Mr. Munir Bakhsh Bhutto, learned Judge, Anti-Terrorism Court-VI, Karachi through learned Registrar of this Court, well before the next date. Adjourned to 1.10.2018."

3. Mr. Munir Bux Bhutto, Judge, Anti-Terrorism Court-VI, Karachi has filed the comments, in which it is mentioned that in the findings of point No.1 on page 8 of the impugned judgment, the word 'helmet' has erroneously been entered; in fact helmet has no connection with the instant case. Secondly, it is mentioned that in the same para name of deceased has been mentioned as 'Jahangir Hasan' instead of Muhammad Usman. Learned Judge in the end has mentioned that error may be ignored.

4. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 23.12.2017 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellants contended that perhaps trial Court has mentioned the facts of some other case in this case and judgment has been passed in slipshod manner. It is further submitted that in such circumstances death sentence was not warranted in the law. Mr. Muhammad Iqbal Awan learned D.P.G. conceded to the contention of the learned counsel for the appellants to the extent that this is a fit case to be remanded to the trial Court for deciding the same on merits afresh after hearing the learned counsel for the parties.

6. After hearing the learned counsel for the parties, we have carefully perused the evidence and impugned judgment dated 23.12.2017.

7. Record reflects that in the findings on point No.1 at page 8 of the impugned judgment, trial Court has mentioned as under:-- "On this point, the prosecution has produced the medical and circumstantial evidence. The witness ASI Rab Nawaz had inspected the dead body of Muhammad Usman and found fire-arm injury on the dead body of the deceased. He conducted the proceedings under section 174, Cr.P.C. and prepared the memo. of inspection of dead body and inquest report. He also inspected the place of incident and secured blood-stains, helmet of the deceased. Senior MLO/Doctor Shahid Nizam had conducted post-mortem of the deceased, has corroborated the version of the witness and has deposed that he found the following injuries on deceased Jahangir Hassan: Fire-arm wound of entry 0.5 cm with inverted margin on forehead. Blackening present. Exited from mid occipital region. Brain matter oozing out. The nature of injury was ante mortem in nature. Internal examination Head: Fracture of frontal bone and occipital bone seen. Correspondent meninges and brain found damaged. Neck: No mark of injury seen. Thorax: Rib cage intact. No mark of injury seen. Abdomen: No mark of injury seen. The time between injuries and death was instant. Time between death and post-mortem was one to three hours. According to him, the cause of death of deceased was cardiorespiratory failure due to head injury resulted by a fire-arm projectile. He has produced post-mortem report No.8196/2014 at Ex.20/A and death certificate at Ex.20/B, verified their contents and recognized his signature. He has also produced a letter of ASI Rab Nawaz at Ex.15/B which bears the cause of death so endorsed in his own hand writing and with signature. The evidence of above named witness has gone undisputed by the accused on the point of unnatural death of the deceased, by means of fire-arm injury and as a result he had died and no material has been brought in rebuttal to dislodge and disprove the prosecution evidence. Hence, the circumstantial and medical evidence stands proven that the death of deceased Muhammad Usman occurred on account of fir-arm injury as claimed by the prosecution. Hence, this point needs no further discussion, therefore, point No.1 is answered in affirmative."

8. Trial Court has convicted the appellants under section 7(1)(h) of the Anti-Terrorism Act, 1997 read with section 302(b), P.P.C. and sentenced them to death and directed to pay compensation of Rs.500,000/- each to be paid to the legal heirs of the deceased.

9. Scrutiny of the evidence reflects that on 8.11.2014, appellants along with absconding accused kidnapped Muhammad Usman outside of his house with intention to commit has Qatl-i-Amd; later on his dead body was found outside of his house. In the whole episode, there is no mention of helmet of the deceased. Moreover, deceased was Muhammad Usman not Jhangir Hassan. Learned trial Judge in his comments has admitted that it was error on his part. Section 367, Cr.P.C. provides that a judgment should contain the point or points for determination, the decision thereon and the reasons for the decision but the impugned judgment has been passed in a perfunctory and slipshod manner. Learned trial Court did not apply judicial mind while passing the judgment. Errors/omissions committed by the trial Court are not curable under the law. Reliance is placed upon the case of Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others (2004 SCMR 1). As such, the impugned judgment dated 23.12.2017 is not sustainable under the law, the same is set aside, the case is remanded to the trial Court for re-writing the judgment after hearing the learned counsel for the parties strictly in accordance with law.

10. Mr. Munir Bukhsh Bhutto, learned Judge Anti-Terrorism Court-VI, has already formed his opinion, therefore, case is transferred to learned Judge Anti-Terrorism Court-VII, Karachi for re-writing the judgment afresh, after hearing, the learned counsel for the parties, strictly in accordance with law. Counsel for the parties shall appear before learned Judge, Anti-Terrorism Court-VII, Karachi on 18.10.2018.

11. Confirmation Reference No.01 of 2018 made by the trial Court is answered in negative.

12. In the view of above, appeals are disposed of in the above terms.

13. The manner in which impugned judgment is penned down by the trial Court is not approved. Let copy of this judgment be sent to Mr. Munir Bukhsh Bhutto, Judge, Anti-Terrorism Court-VI, Karachi through learned Registrar of this Court, with direction to be careful in future, while penning down judgments. JK/A-113/Sindh Case remanded.