1994 P Cr (PLP)

2. The Judge, Special Court for Suppression of Terrorist Activities, Bahawalpur bivision, Bahawalpur vide judgment, dated 14-9-1991 had convicted the three appellants under sections 302/34, 392 and 412, P.P.C. imposing capital punishment upon Atta Muhammad alias Bagri with sentence of Rs.15,00,000 and in default of its payment to undergo R.I. for a further period of seven years. Ali Ganwar and Shah Baig alias Bagri were convicted under the afore?mentioned offences to suffer life imprisonment and also to pay fine of Rs.10,00,000 each, in default of payment of which they had to undergo R.I. for a further period of seven years' R.I. , The occurrence had taken place on 9-2-1989 at about 7-30 p.m. on Service Road of Giri Canal minor in the area of village Murtaza Abad at -a distance of about 10-1/2 K.M. from Mauza Abadpur, District Rahimyar Khan. According to Haji Mahmpod-ul-Hassan complainant (P.W.1) he alongwith his relative Abdul . Karim was coming back to home on motor-cycle from Rahimyar Khan. Shabbirul Hassan brother of the complainant and Bakhat Ali were also coming on their motor-cycle, No. RND-2042. While they reached near Burji No. 57/58 in the area of village Murtaza Abad at about 7.30 p.m. they saw that Ghulam Murtaza (P.W.2) present there on motor cycle had been detained by three persons out of whom two were taller in height and the third one with short stature equipped with rifle were trying to snatch away the motor-cycle. Ghulam Murtaza (P.W.2) was raising alarm for help. Shabbirul Hassan and Bakhat Ali by keeping their motor-cycle in starting position with light on parked it aside, went forward to intervene but Shabbirul Hassan received fire-shot from the assailant holding rifle which hit his head. Bakhat Ali received second fire-shot which hit on his neck. Both fell down and died on the spot. The complainant and Ghulam Murtaza, however, saved their lives by taking shelter behind the trees. The culprits before making good their escape had taken alongwith them leather purse carrying driving licence, identity card and Rs.150, Cash of Shabbir-ul-Hassan deceased.

3. After \the incident the complainant immediately left the place of occurrence to report the matter to the police. Muhammad Zafar Ullah (P.W.19) then S.H.O. Abadpur, however; was present at the bridge of Grey Minor in connection with patrolling duty, he recorded the above statement (Exh.PA.) and sent it to the police station for formal registration of the case. He then commenced the investigation. Besides collecting blood-stained earth from the places of deaths of Shabbirul Hassan and Bakht Ali he took into possession 5 rounds (Exh.P.4/1-5) vide recovery memo Exh.P.D. For the purpose of disposal of this case, all that is pertinent to mention is that Ali Ganwar and Shah Baig were arrested by the said Investigating Officer on 14-4-1989. From personal search of kh Ganwar registration book of Motor?cycle (Exh.P/11) was recovered which was secured vide memo Exh.P.K., attested by Faiz Ahmad (P.W.13) and Jan Muhammad (given up). The said witnesses had also witnessed the recovery of motor-cycle Exh.P,l from the house of Shah Baig which was taken into possession vide memo.Exh.P.L. The leather Bag (P.12) and Identity Card (P.13) of Shabbirul Hassan were taken into possession by other Investigating Officer vide memo Exh.P.M. Atta Muhammad alias Bagri, however, could be arrested after police encounter on 28-7-1989 as the police was after him to arrest him in another case registered against him under section 307, P.P.C. The incriminating articles recovered from him were Klashnikov (P.7), rifle (P.8) as well as 28 empties (P.9/1-28) and two live rounds (P.10/1-2). The ammunition was taken into possession by the said Investigating Officer vide memo.Exh.PJ., attested by Rahim Bakhsh (P.W.12) and Abdul Majid (P.W.7). The Klashnikov alongwith the empties was subsequently sent to Forensic Science Laboratory where positive opinion was returned vide report Exh.P.W.

4. Another important step taken during the investigation related to identification of the accused persons. All the three appellants had been correctly picked up by the witnesses during the identification parade. .

5. Dr. Muhammad Azhar Iqbal (P.W.14) had conducted the autopsy on the dead bodies of Shabbirul Hassan and Bakhat Ali respectively on 10-2-1989 and they were opined to have died of fire-arm injuries.

6. All the accused persons denied the allegations of causing murders during the robbery in their statements recorded under section 342, Cr.P.C. They had also produced in defence to their plea of innocence.

7. The case was initially tried by the learned Additional Sessions Judge. He had recorded statements of 11 witnesses and thereafter by the orders of the High Court the case was withdrawn and transferred to the Special Court for trial.

8. We need not dispose of the case on merits as drawbacks and infirmities pointed out by the learned defence counsel are too lawful for us to ignore and difficult for the prosecution to explain.

9. Learned counsel has pointed out that even the charge framed against the appellants was defective inasmuch as they were charged with the offence under section 412, Cr.P.C. although it was a non-scheduled offence. It need not be said that the Special Court constituted under the Suppression of Terrorist' Activities (Special Courts) Act (XV of 1975) can try only the offences mentioned in the schedule annexed with the said Act and an offence falling outside the schedule is not triable by the Special Court. If any reference is required on the subject that is available in Full Court decision in Ghulam Shabbir v. Punjab Special Court (Suppression of Terrorist Activities) No.5 and another 1992 P Cr. L J 1932 (Lahore).

10. Then we find that the statements of the appellants under section 342, Cr.P.C. were also not properly recorded in accordance with law.

11. It need not be overemphasised that the section is based on the principle involved in the maxim ?audi alteram partem?, namely, that no one should be condemned unheard and the accused should be heard, not merely on what is prima facie proved against him, but on every circumstance appearing in evidence against him.

12. Learned defence counsel has canvassed that non-compliance of section 342, Cr.P.C. has vitiated the trial and in support of the contention relied upon Abdus Salam Molla v. The Crown P L D 1955 FC 129 which reads: "Compliance with section 342 of the Criminal Procedure Code is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply." In the cited case the appellant was not given opportunity' to explain the figures etc., noted on a slip of paper recovered from his pocket, although the entries in the slip were allegedly in his writing. The Federal Court in the circumstances set aside the conviction and ordered retrial of the case from the stage where the statement of the accused was to be taken.

13. Mention, however, must be made of the fact that it is not necessary for the prosecution to put every circumstance of the case, gathered during the trial, to put to the accused under section 342, Cr.P.C. There may be circumstances or pieces of evidence with which even if the accused is not confronted, would not cause miscarriage of justice. But it is noteworthy the questions about the circumstances or items of evidence appearing in the evidence against the accused have to be put to him if they or any of them could singly or read, in juxtaposition with other evidence could form basis of conviction and thus cause miscarriage of justice. In such a situation the omission to ask a question would constitute inherent infirmity necessitating trial to be vitiated or retried depending on the circumstances of each case.

14. In the instant case the appellants have not been nominated in the F.I.R. and the ocular evidence against them was in direct need of support for proper identification by the witnesses during the identification proceedings and recovery of incriminating articles. The prosecution has brought the evidence on' LJ the subject but no question about them was put to, any of the appellants. But here is not the end of the miseries for the appellants and also the prosecution. Even the impugned judgment recording conviction and sentence was not given in accord with the statutory provisions.

15. The learned Special Judge had passed on the general sentences of death and life imprisonment to the appellants under section 302/392/412, P.P.C. although separate charges had been framed against them for each E offence. The law laid down in section 367(2) and (3) of Cr.P.C. and reiterated by this Court in Ali Muhammad v. The State 1991 P Cr. L J 2272 is that when the accused persons were charged and convicted under various sections of Pakistan Penal Code, then separate sentence under each section has to be passed by the trial Court and its non-compliance violates the said provisions F which are mandatory in nature. The impugned judgment, conviction and sentences, therefore, could not be sustained on this count alone.

16. It is highly regrettable that the learned Special Judge dealt with the case in a highly perfunctory and too casual manner.

17. Learned counsel, however, was wrong to raise objections of jurisdiction of the trial Court to deal with the case as the weapon allegedly used by Atta Muhammad appellant was not automatic, semi-automatic or of prohibited bore. He also objected to the trial on the ground that the Special Court had not started functioning at Bahawalpur during the days of commission of offence and, therefore, only the ordinary Court of law where the case lay initially (the Sessions Court) was competent to try the matter.

18. The objection of the learned counsel was repelled by the exhaustive judgment dated 13-4-1991 of our learned brother Mian Allah Nawaz, J. who had withdrawn this case alongwith other cases from the Court of the Additional Sessions Judge and made over for disposal to the Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur. (The order is on Criminal Reference No.92 of 1990/BWP). Even otherwise as per the expert opinion (Exh.P.W.) the recovered crime empties were of 7.62 mm bore and were wedded to the recovered Klashnikov/rifle of 7.62 mm bore. No exception, therefore, could be taken to the trial of the case by the Special Court.

19. In view of what has been stated above we feel no hesitation in holding that the impugned judgment, conviction and sentence have to be set aside in view of inherent infirmities pointed out supra calling for fresh trial of the case right from the stage of framing the charge. Order accordingly. N.H.Q./A-484/L????????????????????????????????????????????????????????????????????????????????? Case remanded.