HIGH COURT OF SINDH AT KARACHI
Spl. Cr. A.T.A No. 36 to 39 of 2012
Mr. Justice Naimatullah Phulpoto
Mr. Justice Aftab Ahmed Gorar
J U D G M E N T
Appellants: Ali Akbar, Yar Muhammad and Badal through Mr. Abdul Razzak, Advocate
Respondent: The State through Mr. Abrar Ali Khichi, A.P.G.
Date of hearing: 16.05.2016
Date of Announcement: 16.05.2016
NAIMATULLAH PHULPOTO, J.-- Appellants Ali Akber, Yar Muhammad and Badal were tried by learned Judge, Anti-Terrorism Court No.II, Karachi for offences under sections 302, 365-A, 201/ 34, PPC, section 7(a) and (e) of the Anti-Terrorism Act, 1997, and section 13(d) Arms Ordinance, 1965. By judgment dated 29.11.2012, Appellants Ali Akber, Yar Muhammad and Badal were convicted under Section 7(a)(e) of Anti-Terrorism Act, 1997 r/w Sections 365-A/302/201/34 PPC and sentenced to death. Appellants Ali Akber, Yar Muhammad and Badal were also convicted u/s 13(d) of the Arms Ordinance, 1965 and sentenced to 5 years R.I. Trial Court made reference for confirmation of death sentence awarded to the appellants. Aforesaid appeals have been preferred against the impugned judgment. By this single judgment, we intend to dispose of appeals as well as death reference made by the trial Court.
2. Brief facts of the prosecution case as disclosed in the FIR are that complainant Haji Muhammad Ilyas lodged his report on the night of 27th/28th February, 2011, at PS Khokhrapar alleging therein that on 26.2.2011, it was 4:00 pm, his nephew Muhammad Hussain alias Baboo aged about 16 years student of class 9th (now deceased) left home to attend the marriage ceremony of his relative Muhammad Akber at Agra Taj Colony. It is alleged that Muhammad Hussain did not reach at marriage ceremony and his mobile was found by mother switched off. Complainant gave such information to police station Khokhrapar on 27.02.2011 at 12:30 AM regarding missing of his nephew. At 3:00 am mother of Muhammad Hussain was informed by PWs Hameed and Imran that on 26.02.2011 at 4:15 pm, they had seen Muhammad Hussain on the motorcycle with Ali Akber, Yar Muhsmmad and Badal were sitting on another motorcycle, they were going towards Memon Goth. After this information, complainant along with P.W Hameed went to the house of accused Ali Akber and enquired from him about Muhammad Hussain, to which he replied that Muhammad Hussain met him on 26.02.2011 and told that he would go to attend the marriage in the evening. It is further alleged that on 27.02.2011 at 10:15 am, a call was received by complainant at his cell No. 0333-2234115 from Cell No.0324-2487673 and caller informed the complainant that Muhammad Hussain has been kidnapped for ransom of Rs.5 lacs. It was made clear by caller that in case, ransom was not paid, harm would be caused to Muhammad Hussain. On 28.02.2011, DSP Malir city came to the house of complainant and told him that police has information that Ali Akber is involved in the offence. Thereafter, complainant accompanied with DSP and pointed out the house of Ali Akber. Police knocked door of Ali Akbar. At that time, accused Ali Akbar, Yar Muhammad and Badal came out of house. Police arrested them in presence of complainant and conducted their personal search. From the possession of accused Ali Akbar, a 30 bore pistol, without licence loaded with magazine, containing 2 live rounds were recovered. From accused Yar Muhammad 30 bore pistol without licence with magazine containing three rounds were recovered and from accused Badal one 30 bore pistol without licence containing 5 live rounds was recovered. Mashirnama of arrest and recovery was prepared and case property was sealed at spot. Thereafter, police brought accused Ali Akber, Yar Muhammad and Badal to the police station. Cases bearing Crime Nos.52, 53 and 54 of 2011 were registered at police station Khokhrapar under section 13(d) Arms Ordinance, 1965 against accused Ali Akbar, Yar Muhammad and Badal on behalf of the State. It is alleged that during interrogation, all the accused admitted that they had kidnapped Muhammad Hussain and demanded ransom. Accused further admitted that they had committed his murder and had thrown dead body in the water tank at Mazaar Goth, behind Memon Goth of Gaddap. It is stated that all the three accused persons in police custody led police and private mashirs to the place where they had killed Muhammad Hussain and thrown his dead body in water tank. It is alleged that relative of the complainant took out dead body from the water tank in presence of accused. Dead body was identified by complainant and PW Muhammad Essa. After completing the formalities at spot, dead body was brought to the hospital for postmortem examination and report. FIR of the incident was lodged by complainant on 28.02.2011 at 09:30 a.m. It was recorded vide Crime No. 55/2011 u/s 365-A/302/201/34 PPC read with section 7(e)(a) ATA 1997.
3. Inspector Khadim Hussain arrested accused Ali Akber, Yar Muhammad and Badal on 28.02.2011 at door of accused Ali Akbar and conducted their personal search. From right fold of shalwar of accused Ali Akber one 30 bore pistol without licence loaded with magazine containing 2 live rounds were recovered. From accused Yar Muhammad 30 bore pistol without licence with magazine containing three rounds were recovered and from accused Badal one 30 bore pistol without licence containing 5 live rounds were recovered. Mashirnama of arrest and recovery was prepared in presence of mashirs. Separate FIRs against accused u/s 13(d) of the Arms Ordinance, 1965 on behalf of state were lodged. Inspector Bashir Ahmed, Investigation Officer recorded 161 Cr.P.C statements of PWs, sent case property to the Chemical Examiner as well as Ballistic Expert for examination and report, collected call data, wrote letter to Mukhtiarkar Gadap for preparation of the sketch of wardat. During interrogation accused led I.O to the place from where they had kidnapped Muhammad Hussain and to the place where he was detained. Such mashirnama was prepared in presence of mashirs. Accused Ali Akber led police party and produced motorcycle KEC-5835 parked near door of his house. Such mashirnama was prepared. During interrogation accused Ali Akber prepared to make his confession and IO produced Ali Akber before Magistrate. On 14.03.2011, after recording his confession, he was remanded to judicial custody.
4. After usual investigation challan was submitted against accused Ali Akber, Yar Muhammad and Badal in the main case bearing Crime No.55/2011 at P.S Khokherapar u/s 365-A/302/201/34 PPC r/w Section 7 (e)(a) ATA 1997 so also in 13(d) Arms Ordinance, 1965, cases bearing FIRs Karachi 52 to 54 of 2011 of PS Khokherapar.
5. Cases under section 13(d) of the Arms Ordinance, 1965 were amalgamated by the trial Court with main case for joint trial in terms of Section 21M of A.T.A. 1997.
6. Learned Judge, Anti-Terrorism Court KarachiII, Karachi framed charge against accused Ali Akber, Yar Muhammad and Badal at Ex.3/A under the above referred sections. Accused pleaded not guilty and claimed to be tried.
7. At the trial, prosecution examined complainant Muhammad Ilyas (PW-1), Sikandar(PW-2), Muhammad Imran (PW-3), ASI Niaz Ahmed (PW-4) Muhammad Essa (PW-5), Inspector Khadim Hussain (PW-6), Syed Farhad Akber M.O Jinnah Hospital (PW-7), Mst. Hafeeza (PW-9), Inspector Ali Muhammad (PW-10), Mr. Malik Muhammad Akhtar Judicial Magistrate South Karachi (PW-11), Niaz Ahmed (PW-12), Muhammad Rafiq (PW-13), Inspector Bashir Ahmed (PW-14),
8. Statements of accused Yar Muhammad, Badal and Ali Akber were recorded u/s 342 Cr.P.C at Ex. 37 to 39. Accused Ali Akbar in his statement denied prosecution allegations and stated that he was picked up by police from his house and after beating, his judicial confession was recorded, it was not voluntarily. Accused Badal has also denied all the incriminating pieces of evidence against him and claimed innocence and stated that he had never seen the house of Ali Akber but was picked by police from village Haji Sheedi Khan. He denied the recovery of unlicensed weapon. Accused Ali Akber, Badal and Yar Muhammad also gave evidence on oath in disproof of prosecution allegations. DWs Ahmed Khan, Hamzo and Ahmed Soomro were examined by accused in defence. Thereafter, Mr. Ghansham Das, Advocate for all the accused closed side on behalf of accused. In the case diary dated 18.07.2012, Trial Court has mentioned that SSP had drawn attention of trial Court that weapons were recovered by IO in presence of mashirs Abdul Hameed and Haji Ilyas and Inspector Khadim Hussain had prepared such mashirnama. On this ground alone, it appears that amended charge was framed by the trial Court at Ex.3 on 01.08.2012. DDP filed statement before trial Court on 25.08.2012 in which it was mentioned that as per Section 231 Cr.P.C there was no need to recall or re-summon the witnesses after amendment of the charge. On the same date, Mr. Ghansham Das, advocate for all the accused, filed statement that it was not necessary for recalling witnesses for cross examination after amendment of charge. It appears that trial Court recorded statements of the accused u/s 342 Cr.P.C afresh on 25.09.2012 at Ex.29/A. All the incriminating pieces of evidence were put to all the accused for their explanation and they denied the allegations and claimed false implication in this case. Regarding chance to lead evidence in defence, accused had stated that they have already examined DWs in the defence. On the same date, i.e. 25.09.2012, Mr. Ghansham Das, advocate for all the accused closed the side on behalf of accused.
9. On the conclusion of trial and assessment of evidence, Ms. Khalida Yaseen Judge, Anti Terrorism Court No.II, Karachi, convicted the appellants and sentenced as follows:-
97. I have gone through the Hon’ble authorities cited by the learned SSP and have come to the conclusion that even through there is only evidence of PW-01 Ilyas that he had received the ransom call and no sim or mobile was recovered from the 3 accused persons but there is a chain of circumstantial evidence and un-retracted confessional statement of the accused Ali Akbar that I have answered the points that the accused persons are guilty of the crime they are charged with. According to the Hon’ble authorities cited by the learned SPP they do not deserve leniency as there exist no extenuating circumstances that they should be awarded lesser sentence. All the three accused deserve capital punishment. They be hanged by Neck to death. They have disown the weapons therefore they be destroyed after the appeal period.
98. The prosecution has proved the charges framed against the three accused persons namely Ali Akbar son of Muhammad Yaqoob, Yar Muhammad s/o Ahmed alias Ahmoo and Badal s/o Soomar therefore they are convicted u/s 6(2)(a)&(e) of ATA, 1997 punishable u/s 7(a)&(e) of ATA, 1997 r/w Section 365-A/302/201/34 PPC and sentenced to death through Neck till death subject to the confirmation by the Hon’ble High Court. They have not been levied any penalty because of the poverty.”
10. We have carefully gone through the impugned judgment. Trail Court has passed the judgment in a hasty manner. Even it has not been specified as to under which offence accused have been convicted and sentenced to death whereas section 7(a) of Anti-Terrorism Act, 1997 is punishable with death or with imprisonment for life or with fine. Section 7(e) of Anti-Terrorism Act, 1997 is punishable with death or imprisonment for life. Section 365-A, PPC is punishable with death or imprisonment for life. Section 302, PPC is punishable with death or imprisonment for life. Section 201, PPC if a capital offence is punishable upto 7 years, and shall also be liable to fine.
11. Learned Judge, Anti-Terrorism Court-II, Karachi was required to render judgment after application of judicious mind, particularly, the trial Courts should remain conscious as the trial Courts may well assess the evidentiary value of the statements of the witnesses because the evidence of the witnesses is recorded before trial Courts. Impugned judgment reflects that points for determination have not been specified , absence of decision of points raised and total lack of reasoning and sentence is also not in accordance with law. However, as regards to conviction under section 201, PPC, it may be stated that it is a well-settled proposition of law that an accused charged with main offence i.e. murder cannot be convicted for disappearance of the evidence of offence to screen or save himself. Reference is made to the case of NASAR KHAN versus THE STATE (2000 SCMR 130). In the latest judgment reported in the case of AHMED versus The STATE (2015 SCMR 993) Honourable Supreme Court has held that conviction for an offence under section 201, PPC cannot simultaneously be recorded with a conviction for an offence under section 302, PPC. Relevant portion is reproduced as follows:-
“………………………This Court has already clarified that the conviction for an offence under section 201, PPC cannot simultaneously be recorded with a conviction for an offence under section 302, PPC and a reference in this respect may be made to the case of Nasar Khan v. The State (2000 SCMR 130). In this view of the matter the appellant’s conviction and sentence for the offence under section 201, PPC are set aside. The appeal is disposed of in these terms.”
12. The reading of paras 97 and 98 of the impugned judgment, reproduced earlier clearly shows that learned trial Court has not even applied its judicial mind while deciding this case of kidnapping for ransom. Section 367, Cr.PC is reproduced as follows:-
367. Language of judgment: Contents of judgment:
(2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced.
13. The bare reading of section 367(2), Cr.PC makes it abundantly clear that it is the prime duty of the Court to specify the offence under which accused is being convicted and sentenced and trial Court is under legal obligation to mention the section of PPC or any other law under which the accused is convicted and punishment to which he is sentenced. In the present case, accused have been convicted and sentenced without specifying the offences and the section of the PPC and sections of Anti-Terrorism Act, 1997, under which the accused were convicted and have been sentenced. Trial Court while rendering the judgment in this case lost sight of the relevant provisions of laws. In the present case, learned Judge adopted very hasty step to conclude the trial Court which can never be appreciated. Moreover, failure to specify the points for determination as required under section 367, Cr.PC is an omission on the part of the trial Court which is not curable under section 537, Cr.PC and absence of decision on the points of determination and absence of the sentence separately for the offences with which accused have been sentenced in the judgment, amounts to an illegality, which prejudices the case of the appellants as held by the Honourable Supreme Court of Pakistan in the case of FARRUKH SAYYAR and 2 others versus CHAIRMAN NAB, ISLAMABAD and others (2004 SCMR 1). Relevant portion is reproduced as follows:-
2. We have heard the learned counsel for the parties at length and have also perused the impugned judgment. It is a mandatory requirement of section 367, Cr.P.C. that a Court while writing a judgment shall refer to the point or points for determination, record decision thereon and also give reasons for the decision. The Court shall also specify the offence of which, and the section of the Pakistan Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced. In the present case the learned trial Court overlooked the mandatory provisions of section 367, Cr.P.C. and rendered a judgment which falls short of the requisite standard. Failure to specify the points for determination as required under section 367, Cr.P.C. is an omission which is not curable under section 537, Cr.P.C. and absence of decision on the points for determination and" reasons in the judgment amounts to an illegality which prejudices the case of the accused.
3. It was contended by the learned counsel for the petitioners that the High Court having heard the case as an Appellate Court was not empowered to remand the case for writing a fresh judgment in view of clause (b) of section 423, Cr.P.C. which reads as under:--
"(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3)' with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to the provisions .of section 106, subsection (3), not so as to enhance the same."
The argument is not tenable for the short reason that the impugned judgment is fully covered by clause (d) of section 423, Cr.P.C. which is too relevant to be ignored or overlooked. It reads as under:--
"(d) make any amendment or any consequential or incidental order that may be just or proper."
4. Learned counsel for the petitioners further contended that the High Court itself ought to have written the judgment instead of remanding the case which in fact amounts to retrial of the petitioners. E The contention cannot prevail because; firstly, the case has been remanded for fresh hearing and judgment and not for retrial of the petitioners and, secondly, the remand order is in line with the law laid down by this Court in Sahab Khan v. The State 1997 SCMR 871. The judgment recorded by the High Court in that case did not meet the requirements of section 367, Cr.P.C. inasmuch as it neither dealt with the points for determination nor contained evaluation of the evidence and reasons for arriving at the conclusion. The judgment was set aside and the case was remanded to the High Court for fresh hearing and fresh judgment with the following observations:--
"Without going into the merits and demerits of the case of the parties, we hold the view that criminal appeals referred to above were not decided in the light of afore-noted statutory provisions. They shall, therefore, be deemed to be still pending adjudication. Needless to state that at the appellate stage, whole original case stands reopened for its hearing and decision in accordance with law. Such-like appeals cannot be decided summarily without analytically discussing the evidence on record. The appeals of the parties were required to have been decided in accordance with the evidence. This could not be done for no obvious legal reasons. The learned counsel has attempted to argue that both the appeals may be heard and decided on merits by this Court to do substantial justice between the parties. We cannot substitute our opinion/decision with the one which is still to be given by the High Court on the basis of evidence available on record."
Resultantly, the petitions are dismissed and leave refused.
14. Learned A.P.G. has also argued that trial Court has overlooked the mandatory provisions of section 367, Cr.PC and conceded to above legal position and argued that trial Court may be directed to re-write the judgment in accordance with law.
15. For the above stated reasons, while relying upon the above cited authority, we have come to the conclusion that judgment recorded by the trial Court did not meet the requirements of section 367, Cr.PC as discussed above. Resultantly, conviction and sentence recorded by the trial Court vide judgment dated 29.11.2012 are set aside. Appeal is partly allowed. Reference for confirmation of death sentence is answered in negative. Case is remanded to trial Court for passing of judgment afresh in the light of observations made herein above. Trial Court is directed to re-write the judgment after hearing the counsel for the parties afresh within one month, in accordance with law.
J U D G E
J U D G E