2021 PLP 1577 (MLD)

MUHAMMAD NOOR MESKANZAI, CJ.

Through this Jail appeal, the appellant has called in question the legality, propriety and validity of the judgment dated 29th June, 2019, passed by learned 1st Additional Sessions/Model Criminal Trial Court Judge, (MCTC) Kandhkot, whereby the appellant was found guilty and sentenced as under: "Accused Sholo alias Rasool Bux son of Manglo Shar, is convicted under section 265-H (ii) Cr.P.C for the offence punishable under section 302(b), P.P.C. as Tazi'r and sentenced to imprisonment for life and to pay fine of Rs. 700,000/- which on recovery shall be payable to the legal heirs of deceased Hidayatullah and in default whereof to further undergo R.I for six months. The benefit of section 382-B, Cr.P.C is allowed to the convict and the period for which he has remained in custody shall be computed towards sentence ."

2. Brief facts of the case in hand are that FIR No. 18 of 2006 was lodged by the complainant Allah Dino under sections 17(3), 17(4) of Offences Against Property (EOH) Ordinance, 1979 read with Sections 147, 149, P.P.C., with the allegation that on 26.09.2006 at 05:30 p.m. he along with his sons Sanaullah and Ali Dost were in their house when they heard cries of "Robbery, Robbery", raised by his son Hidayatullah who was returning back after grazing his cattle. On the said hue and cries, he along with his sons Sanaullah and Ali Dost went towards the place of noise where they saw Sholo alias Rasool Bux armed with K.K, Bashir son of Saindad, Miandad with Rocket Launcher, Sultoo with Rocket Launcher, Soomro with K.K Yaseen, Dodo, Melao, Habeeb, Jalan, Saindad, Shahdad, Bashir son of Muhammad Hassan, Hassan, armed with K.Ks, all by caste Shar resident of village Katcha area Geehalpur, Taluka Kashmore and 10 unidentified persons armed with K.Ks had encircled Hidayatullah. Accused Sholo alias Rasool Bux challenged and told the complainant that he has unlawfully occupied their land as such they will not spare him (complainant party), saying so all the accused persons on the force of weapons drove cattle of complainant party. Hidayatullah tried to grapple with them, on that accused Sholo alias Rasool Bux fired at Hidayatullah with his K.K which hit him and he fell down by raising cries. The rest of the accused made aerial firing in order to create terror and harassment. On receipt of injury on his neck Hidayatullah succumbed to his injury. The complainant and his son were armless, therefore, could not do anything; however, on report of gun short fire the other villagers reached at that venue but accused went towards southern side along with cattle.

3. Mehrab son of Mughal and Bashir son of Muhammad Hassan were arrested on 02.10.2006 whereas the rest of the accused remained absconder and the record shows that Mehrab and Bashir absconded from the jail. Similarly, two other accused persons namely Jalan son of Balo and Bashir son of Saindad were arrested on 10.12.2012 who have also absconded. Present appellant Sholo alias Rasool Bux and acquitted accused Bashir son of Muhammad Hassan were arrested from jail on 10.12.2012 as they were already in jail in connection with some other case.

4. The case was initially tried by Anti Terrorism Court-II Sukkur and subsequently transferred to the file of Sessions Judge Kashmore at Kandhkot on 15.11.2018.

5. Charge was framed on 14.03.2019 to which the accused did not plead guilty and claimed trial.

6. In order to prove the charge, the prosecution produced as many as 07 witnesses. After examination of prosecution witnesses, the statements of accused were recorded under section 342, Cr.P.C, however, neither they opted to produce defence witnesses nor proposed to record statements under section 340(2), Cr.P.C. The trial so conducted culminated in conviction of accused Sholo alias Rasool Bux whereas co-accused Bashir son of Muhammad Hassan was acquitted of the charge. The convict/appellant filed the instant jail appeal.

7. Learned counsel for the appellant argued the case at some length. The Additional Prosecutor General pointed out that the accused has not been examined properly under section 342, Cr.P.C., as material evidence i.e. medical evidence has not been put to the accused, therefore, this irregularity is incurable and vitiates the judgment. He has further stated that legally if some material emerge from the cross-examination of a witness, in that situation too, the Court is required to put that material piece of evidence to accused and seek explanation. He further maintained that normal penalty in such sort of case is death as contemplated by Section 396, P.P.C. and the trial Court has opted for lesser punishment without discussing any plausible reason. In these circumstances the sole legal remedy lies in remand of the case enabling the trial Court to further examine the accused under section 342, Cr.P.C.

8. When the learned counsel for the appellant and complainant were confronted with the irregularities so pointed out by the Additional Prosecutor General, Sindh both the learned counsel frankly conceded to legal position and requested for remand of the case for further examination of accused under section 342, Cr.P.C.

9. We have gone through the available record with valuable assistance of the learned counsels. We find sufficient force in the submissions of the learned Additional Prosecutor General. The trial Court formulated three points and the first point pertains to the unnatural death of the deceased by receiving fire-arm injuries. Point No. 1 was resolved at the strength of medical evidence produced as Ex-50. Whereas the perusal of questioner reveals that this piece of evidence was never put to the accused. Secondly, the motive for the offence mentioned in the FIR, was supported by PW-1 and PW-2 in their statements, so much so, during the course of cross-examination specific suggestions regarding dispute over the landed property was put to the PW-1 and PW-2 by the defence counsel, but motive was also not put to the accused while recording their statement under section 342, Cr.P.C. Thirdly, of-course, the appellant remained fugitive of law i.e. absconder for long six years and the trial Court in its judgment vide para 34 treated the abscontion as a circumstance towards the guilt of the accused, but no question regarding abscontion was put to the accused. Therefore, we don't have any doubt in our mind that the trial Court committed incurable irregularity by not putting material evidence to the accused while examining the accused under section 342, Cr.P.C. For holding the view we are fortified with the dictum laid down by the Hon'ble apex Court in the judgment titled as: 2010 SCMR 1009 Muhammad Shah v. The State. "It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C, in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984".

10. There is no cavil to the legal position that if a charge against an accused provides for death penalty and is proved by the prosecution, in that case, the trial Court as per the mandate of Section 367(5), Cr.P.C., has to impose death sentence. However, if the Court proposes any sentence other than the normal penalty, in that case, the trial Court is required to state reasons for the option of lesser punishment. But the trial Court merely stated "keeping in view the mitigating circumstances" without discussing a single reason or circumstance justifying the option of lesser punishment and thus committed another material irregularity. Reliance is placed on 1991 SCMR 1622 at pages 1627 and 1628 it has been observed as under:-- "We are, however, constrained to remark that despite this Court's repeated observations regarding imposition of the normal penalty of death to those convicted for murders and to discredit the impression of marked tendency of inhabitation or hesitation on the part of the trial Courts in awarding the said penalty, in this case both the trial Court and the learned Appellate Court failed to measure the actions of the accused/appellants in proper scales and failed to apply their minds reasonably in inflicting the normal penalty provided for such offences for obviously no reasons .. It is the Divine will that we must be firm and resolute to do justice whether it be detrimental to our own interests or the interest of those who are near and dear to us. Mercy is the attribute of God but we are warned not to allow that which is otherwise unlawful moreover we should not show mercy to those who themselves are proved to have acted mercilessly...."

11. Similarly, the observations of the trial Court regarding explanation of Term "Tazkiyah-al-Shuhood" reflect that the trial Court remained oblivious of the explanation to Section 7 which reads as under:- "Explanation. In this section, tazkiyah-al-shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness".

12. Furthermore, the trial Court failed to appreciate that in this case, if, for want of satisfaction of the requirement of Section 7 Hadd could not be enforced, Section 20 of the Offences Against Property (Enforcement of Hadood), Ordinance 1979 should have been adhered to which reads as under:- "

20. Punishment for `haraabah' liable to Tazir, Whoever commits haraabah which is not liable to the punishment provided for in Section 17, or for which proof is either of the forms mentioned in Section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, or extortion, as the case may be". In the given circumstances of this case, relevant and applicable Section is 396, P.P.C.

13. Last but not the least, while drawing conclusion the trial Court observed:- "I am of the considered view that prosecution has succeeded to prove beyond shadow of reasonable doubt that on relevant date, time and place, the accused Sholo alias Rasool Bux in prosecution of common object of the absconding accused named above armed with deadly weapons, being members of unlawful assembly and in prosecution of common object committed murder of deceased Hidayatullah in resistance of committing the robbery of the cattles, committed the murder of deceased Hidayatullah son of complainant by causing him fire arm injuries knowingly and intentionally". However, despite clear observation of formation of unlawful assembly by the appellant and other nominated accused and the commission of murder in prosecution of their common object, amazingly the accused Bashir son of Muhammad Hassan was acquitted of the charge. Since, there was no appeal against acquittal of accused Bashir and the judgment to the extent of Bashir has attained finality, therefore, judgment to such extent remains in field.

15. For what has been discussed above and with the consent of the parties, we are inclined to accept the appeal and set aside the conviction recorded vide judgment dated 29.06.2019 and remand the case to the Trial Court with direction to further examine the accused under section 342, Cr.P.C by putting all the relevant pieces of evidence sought to be used against the accused. The Jail authorities must ensure production of the accused before the Court for further examination of the accused under section 342, Cr.P.C. The trial Court shall conclude the proceedings within one month after the receipt of this judgment and record of case. These are the reasons for our short Order dated 28.10.2019. JK/49/FSC Case remanded.