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Petitioner: Taj Muhammad VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Taj Muhammad vs The State Case No.: (1) Criminal Appeal No.113 of 2016 (2) Confirmation Case No.02 of 2016 Date of Judgment:2019-11-20 Reported As: 2020 P Cr.L J 1693, PLJ 2020 Cr.C. (Karachi) 463, 2019 SHC 450 Result: Appeal Disposed off
Judgment ZULFIQAR ALI SANGI, J., Appellants filed the instant Criminal Appeal on being aggrieved and dissatisfied with the impugned judgment dated 19.03.2016 passed by learned Sessions Judge, Karachi West in Sessions Case No.105/2012 under FIR No.22/2002 for the offence under sections 302/34 PPC registered at PS Peeerabad, Karachi; whereby appellants were convicted under section 302(b) PPC and awarded death sentences for the offence of murder of deceased Hafiz Nisar Ali and Rahimullah subject to confirmation by this Court and also to pay Rs.100,000/- each as compensation under section 544-A Cr.P.C. to the legal heirs of deceased named above and in case of default in payment of compensation, they shall further suffer S.I. for six months. However, benefit of section 382-B was extended in favour of the appellants. 2. Brief facts of the prosecution case are that on 17.01.2002 at about 1900 hours, complainant Deendar Ali (Advocate) son of Moosa Khan, R/o House No.D-1/52, near Raja Jewelers, Frontier Colony No.1, Karachi came at police station and reported that he is a resident of above given address and lawyer by profession. Two days prior, his younger brother Zainul Abideen quarreled with a boy of his locality namely Abdul Baseer but same was patched up. Today on 17.01.2002 at about 1030 hours, while his younger brother Zainul Abideen was going towards the house of his maternal uncle, the said Abdul Baseer alongwith his brother Vakeel as well as two companions, whose name was not known but could be recognized from their faces, stopped in front of shop of Babak, abused him and also beaten him with kicks, fists and dandaas, as the result whereof, his brother sustained injuries on his nose and other parts of his body . He brought him at police station and after lodging the report, he took him to Jinnah Hospital for his treatment. Subsequently , at about 02:00 PM he returned back from hospital and then his elder brother namely Hafiz Nisar Ali came to the house after receipt of information about the incident and also inquired about the incident. After some time, his maternal brother namely Waris Khan came to the house and informed that Abdul Baseer , Shafiq and Taj Muhammad were coming to his uncle' s house, throwing the stones and causing dandaas blows at the door and also abusing them. Upon which, his elder brother Hafiz Nisar Ali in order to pacify the matter
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with them, at about 04:00 PM reached near Babak Shop, however Abdul Baseer on seeing him, loudly told his accomplices not to leave him alive. All of sudden, Shafiq with firearm weapon started firing, due to which one intervener Rahimullah sustained injury and fell down then Abdul Baseer duly armed with churri attacked upon Hafiz Nisar Ali and inflicted Churri on left side of abdomen just lower to ribs whereas Taj Muhammad also caused Churri blows on right side, due to which his brother after sustaining injuries also fell down . The incident was witnessed by Naseeruddin, Waris Khan, Anwar Ali and other locality people. Thereafter both the injured succumbed to the injuries. He claimed that accused Abdul Baseer , Shafiq and Taj Muhammad have caused murder of his brother Hafiz Nisar Ali and Rahimullah and requested for taking legal action in the matter . Accordingly , the duty officer SIP Haleem Shah lodged the instant FIR. 3. After registration of the FIR, the investigation was entrusted to SIP Muhammad Ashraf Awan, who as per entry No.37 reported at 1635 hours was already busy inspecting the dead bodies and completing the formalities under section 174 Cr.P.C. at Abbasi Shaheed Hospital. The I.O. on receipt of investigation inspected the place of incident and recorded the statements of witnesses under section 161 Cr.P.C. and on 25.01.2002, he succeeded to arrest one of the accused persons namely Taj Muhammad on the pointation of the complainant. During the investigation and on transfer of SIP Muhammad Ashraf Awan, further investigation was entrusted to SIP Abdul Rauf, who after completion of usual investigation, submitted the challan against accused Taj Muhammad and co- accused Abdul Baseer and his brother Shafiq by showing them as absconder. 4. After receipt of the challan, formalities under section 87/88 Cr.P.C. were completed against both the absconding accused by the trial court and compliance of section 265-C Cr.P.C. was made vide receipt Ex.2, firstly the charge against accused Taj Muhammad was framed on 28.07.2003 vide Ex.3, to which he pleaded not guilty and claimed his trial. Subsequently , one of the absconding accused namely Abdul Baseer was also arrested by the police on 30.01.2005 and was produced before the Court, as such, after compliance of section 265-C Cr.P.C. vide receipt at Ex.6, the amended charge was framed on 30.08.2006 videEx.7, to which he pleaded not guilty and claimed his trial. 5. In order to prove the case, prosecution examined PW-1 Complainant Deendar Ali at Ex.11, who produced the carbon copy of the FIR, memo of inspection of place of incident and memo of arrest of accused Taj Muhammad as Ex.11-A to 11-C. PW-2 Anwar Ali at Ex.12. PW-3 Khalil-ur-Rehman at Ex.13, who produced receipt of receiving the dead body of deceased Rahimullah, memo of inspection of dead body of deceased Rahimullah and inquest report as Ex.13-A to 13-C respectively. PW-4 SIP Muhammad Pervaiz Khan at Ex.14. PW-5 SIP Muhammad Safdar at Ex.15, who produced the memo of arrest of accused Abdul Baseer and entry of daily station diary as Ex.15-A and 15-B respectively. PW-6 Inspector Muhammad Ashraf at Ex.16, who produced 174 Cr.P.C. proceedings of deceased Hafiz Nisar Ali as Ex.16-A. PW-7 SIP Ghulam Mustafa at Ex.17. PW-8 ASI Dost Muhammad at Ex.18, who produced entry No.28 of 11.02.2002 at 1545 hours at Ex.19. PW-9 Adil Zada at Ex.20. PW-10 Naseeruddin at Ex.22. PW-11 Dr. Nisar Ali Shah at Ex.23, who produced two postmortem reports and cause of death endorsed on written request of I.O. in respect of both deceased as Ex.23-A to 23-E respectively. PW-12 Shahensha at Ex.27. PW-13 Dawood Shah at Ex.28, who produced application addressed to the SHO dated 07.02.2002 at Ex.29. PW-14 Fida Hussain at Ex.30, who produced application addressed to the SHO dated 07.02.2002 at Ex.31. PW-15 Waris Khan at Ex.32. PW-16 Khalid Hussain at Ex.36. PW-17 Abdul Samad at Ex.40. PW Khalil ur-Rehman was given up vide statement at Ex.33 as well as PWs Nasir Khan, Khursheed, Bacha Khan, Fazal Mannan, ASI Abdul Rauf and PC Fayaz could not be examined being untra ceable except Nasir Khan, who has been murdered. Learned DDPP for the state closed the side of prosecution vide statement at Ex.41. 6. Thereafter , statements of both the accused were recorded under section 342 Cr.P.C. vide Ex.42 and Ex.43 respectively , wherein they denied the allegations against them and stated that they are innocent and involved falsely in this case. However , neither they have examined themselves on oath nor led any evidence in their defense. 7. Learned counsel for appellant Taj Muhammad contended that appellant is innocent and has been involved by the complainant party due to enmity which is admitted in the evidence; that the motive as set out by the complainant has not been proved; that important witness Zainul Abideen was not examined by the prosecution before the trial
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court; that motive was not put before the appellant while recording his statement U/S 342 Cr.P.C; that the case is of two versions and therefore doubtful; that all the witnesses had given contradictory evidence on main points of the case; that nothing was recovered from the possession of appellant which conne cts him with the crime; that the appellant voluntarily appeared before the police; that most of the witnesses have not supported the case of prosecution to the extent of appellant Taj Muhammad and deposed before the trial court that appellant Taj Mohammad was not present at the spot; that prosecution has not proved the case against appellant beyond reasonable doubt; lastly he prayed for acquittal of appellant. 8. Learned counsel for appellant Abdul Baseer while adopting the arguments of counsel of Taj Mohammad further contended that although, the charge is not according to law he would prefer that this case not be remanded but decided by this Court on merits; on merits he contended that appellant is innocent and has been booked in this case due to enmity; that the PWs had not supported the case against the appellant Taj Muhammad before the trial court thus, they are not reliable and trustworthy and therefore, their evidence against Abdul Baseer cannot be relied upon; that it is the duty of prosecution to prove the case beyond reasonable doubt but present case is not free from doubts; that entire case of prosecution is doubtful therefore by extending benefit of doubt, appellant may be acquitted. 9. Mr. Muhammad Iqbal Awan, learned DPG contended that it has been established from the evidence that complainant party went towards the accused person for settlement of dispute but appellant party made attack upon them and committed murder of two innocent persons; that the appellants committed an offence which is heinous in nature; that prosecution has proved the case by producing confidence inspiring and trustworthy evidence; that appellants themselves admitted in their statement U/S 342 Cr.P.C that they acted in their self-defense; that the trial court after appreciation of entire evidence available on record passed the impugned judgment which is based on sound reasons and does not require any interference by this Court; lastly he prayed that appeal of both the appellants may be dismissed. 10. Learned counsel for the complainant argued that all the witnesses fully supported the case of the prosecution; that the motive has also been proved by the prosecution; that ocular evidence is supported by medical evidence; that FIR was promptly registered; that no mistake was made in identification of appellants as it was a daytime incident; that no ill-will was suggested against the witnesses who are natural and not chance witnesses; he further contended that charge was framed acco rding to law, though at the time of charge, trial court committed some irregularities which are not illegalities and irregularities and same are curable U/S 537 Cr.P.C and on such bases, the case cannot be remanded; lastly he prayed that conviction and sentence awarded by the trial court may be maintained and appeal may be dismissed. 11. We have heard the arguments of learned counsel for the parties and have gone through the material available on record with their able assistance. 12. At the first instance, we have decide d to clear up the issue regarding the legality of the charge despite the appellants not objecting to it by considering the following issues: i) whether the charge framed by the trial court was in accordance with law or was an illegal? ii) what will be the effect of such charge on the trial if it is found illegal? iii) whether any rights of the accused was prejudiced due to such charge? 13. We have examined the charge framed against the appellant Taj Muhammad available at page 193 of the paper book which reads as under:- CHARGE I, Mrs. Naseem Mansoor , IVth Additional Session Judge, Karachi do charge you:- Taj Muhammad S/o Bukht Zameen As That on or about 17.01.2002 at 1600 hours at Bahreen Road, Near Babak Dukandar, Frontier Colony No.2 Karachi you along with absconder co-accused namely (1) Abdul Baseer son of Saeed-ur-Rehman (2) Muhammad Shafiq son of Abdul Rehman in furtherance of your common intention while you were duly armed with churri, while absconding co-accused Muhammad Shafiq was also armed with carbine (pistol). You accused
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Taj Muhammad along with absconding accused Abdul Baseer knowingly and intentionally caused churi injuries on the abdomen of Nisar Ali son of Moosa Khan due to which he expired. While absconding co-accused Shafiq caused fire arm injuries to Rahimullah son of Nosharwan on his neck due to which he also expired. Thus you all have committed Qatl-e-Amd of both deceased, thus committed offence punishable u/s 302/34 Q and D which is within the cognizance of this Court. AND I hereby direct you that you be tried by this Court on the aforesaid charge. Given under my hand and seal of the Court this July 28, 2003. Sd/- (Mrs. Naseem Mansoor) IVTH ADDITIONAL DISTRICT & SESSION JUDGE KARACHI (WEST) 14. After framing the charge against appellant Taj Mohammad, co-appellant Abdul Baseer was arrested and amended charge was framed which is available at page 213 of the paper book which reads as under:- AMENDED CHARGE I, Mrs. Akhtar A. Chaudhry, IV-Additional District & Sessions Judge, karachi (West), do hereby charge you:- Abdul Baseer S/o Syed Rehman As follows:- That on or about 17.01.2002 at 1600 hours at Bahreen Road, Near Babak Dukandar , Frontier Colony No.2 Karachi, you alongwith absconder accused namely Muhammad Shafiq in furtherance of your common intention duly armed with churri, while absconding accused Muhammad Shafiq was also armed with carbine (pistol), accused Taj Muhammad along with accused Abdul Baseer knowingly and intentionally caused churri injuries on the abdomen of Nisar Ali S/o Moosa Khan due to which he expired, while absconding accused Shafiq caused fire arm injuries to Rahimullah S/o Nosharwan on his neck due to which he also expired, thus you have committed Qatl-e-Amd of both deceased, whereby you have committed an offence punishable u/s 302/34 PPC and is within the cognizance of this Court. AND I hereby further direct you that you be tried by this Court on the aforesaid charge. Given under my hand and seal of this Court, this 30 th day of August, 2006. Sd/- (Mrs. Akhtar A. Chaudhry) IV-ADDITIONAL DISTRICT & SESSION JUDGE KARACHI (WEST) 15. Thereafter , evidence of the prosecution witnesses as well as statement of the appellants U/S 342 Cr.P.C was recorded. Thereafter , on application some other witnesses were examined before the trial court by the prosecution and again statement U/S 342 Cr.P.C was recorded, Thereafter , application U/S 227 Cr.P.C R/W section 537 Cr.P.C was filed on behalf of complainant and the same was allowed on no objection of counsel for appellants vide order dated:10-12-2013, and again the charge was framed which is available at page 521 which reads as under:- AMENDED CHARGE I, Ghulam Mustafa Memon, Sessions Judge, Karachi-W est, do hereby charge you: 1. Taj Muhammad son of Bakht Zameen 2. Abdul Baseer son of Saeed ur Rehman as under:- That on 17th January , 2002 at about 1600 hours, you the above named accused duly armed with churri, with association to absconding co-accused Muhammad Shafiq, who was armed with carbine at Bahreen Road, Near Babak Shop, situated in Frontier Colony , Karachi in furtherance of of your common intention caused churri blows injuries to Nisar Ali son of Moosa Khan, brother of the complainant Dindar Ali, whereas absconding co-accused Shafiq caused firearm injuries to Rahimullah son of Nosharwan, as the result whereof Rahimullah and Nisar Ali received grievous hurts and succumbed to injuries at the spot, thereby you have committed the offence of Qatl-i- Amd, punishable under section 302/34 PPC within the cognizance of this Court. And I hereby direct that you be tried by this Court on the aforesaid charge. Sd/- (Ghulam Mustafa Memon) Sessions Judge Karachi-W est
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Dated:17.12.2013 16. We have carefully examined the charge and gone through the relevant provisions of law. In the second charge, only due to some bonafide mistake or an error, name of appellant Taj Mohamma d was not mentioned though he was present before the trial court to face the trial and against him, charge was alrea dy framed and it was the part of proceedings. Whereas, an application was moved only for amendment of charge/correction in the charge and to rectify the mistake which is also evident from the wording used in application. Learned trial court passed an order dated:10-12-2013 which clears the position and the same is reproduced as under:- Heard the learned DDPP for the State, advocate for the complainant, so also taken into consideration no objection endorsed by the learned advocate for the accused. On perusal of the R & Ps manifest that on 28.07.2003 charge was framed against accused Taj Muhammad alone and at that time the culprits Abdul Baseer and Shafiq were at large. Subsequently Abdul Baseer was arrested and on 30.08.2006 the amend ed charge was framed against accused Abdul Baseer only. Inadvertently in the said amended charge the name of first accused Taj Muhammad has not been mentioned, although he was in attendance and facing trial. The subject amended charge ought to have been framed against both the accused and not against the culprit arrested subsequently . Looking to the subject circumstances, the learned DDPP for the State who has also been assisted by the advocate for the complainant, jointly moved instant application for amendment in charge thereby bringing on the record the name of accused Taj Muhammad alongwith accused Abdul Baseer, same has been consented by the advocate for the accused Taj Muhammad as well as by Mr. Zia Hussain, advocate associate of Mr. Ghulam Mustafa Memon, advocate for the accused Abdul Baseer. By the subject amendment in the charge neither fresh evidence is essential nor the same will change the basic ingredient of the crime, as such just to rectify the bonafide mistake did by the then trial Court, I hereby allow the application in hand and will frame the amended charge. Case is adjourned to 16.12.2013 for amended charge. Announced in open Court this 10 th day of December , 2013. Sd/- (Ghulam Mustafa Memon) District & Sessions Judge Karachi W est 17. We have found that the charge, which was corrected to rectify the error by way of a fresh charge, was framed in accordance with the provision of Sections 221, 222, 223 and 224 Cr.P.C and no illegality has been found by us in that charge which misled the accused or caused them any prejudice and due to such correction, rights of the parties were not affected and no failure of justice has arisen vis.a.vis the appellants. We have also noticed that both the appellants through their counsel raise d no objection on application for correction in the charge and they had also not filed any application for re-calling the witnesses already examined. Even we have found no need of re- calling them after such correction and the appellants were not prejudiced from any of their right to a fair trial as they know the charge against them and prepared their defence and cross examined the prosecution witnesses pursuant to such defense. We have also found that after making such correction in the charge in shape of fresh charge, a joint statement was filed by the counsel of complainant and APP for the state wherein they adopted the same evidence earlier recorded and such was taken on record at Ex: 47, whereas both the appellants had also filed their separate statements through their counsel and adopted their earlier statement U/S 342 Cr P C and such were also taken on record at Ex: 48 and 49 respectively . In our view therefore based on the above discussion the remand of the case is not justified and we will proceed to decide the appeal on merits as desired by the learned counsel for the appellant. Reliance is placed on the case of Nazir Ahmed and others V. The State and others.{ PLD 2005 Karachi 18 }, relevant paragraphs are re-produced as under:- "...19. As regards the objection of the learned Advocate for the appellants that the particulars of the role assigned to each appellant are not mentioned in the charge or no separate charge for offence under section 302, P.P.C. against the appellants Nazeer Ahmed and Dilaw ar was framed or the charge of 149, P.P.C. does not mention its parts, therefore, the charge is defective. No doubt these are errors in the charge but the said errors can be cured under section 225, Cr .P.C., which reads as under:-
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"225. Effect or errors .--No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." 20. From the above provision of law, it is clear that even if the particulars required to be stated are not mentioned in the charge then the errors are curable subject to conditions that the accused is not misled or it has not occasioned a failure of justice. Similar is the case with regards to the objection about the charge under section 114, P.P.C. The important point for consideration is whether these defects had misled the appellants or it has occasioned a failure of justice. In this connection illustration, `D' of section 225 is reproduced which explains the said point more clearly . It reads as under: "(D) A is charged with the murder of Khuda Baksh on the 21st January , 1882. In fact, the murdered person's name was Haider Baksh, and the date of the murder was the 20th January , 1882. A never was charged with any murder but one, and had heard the [trial], before the Magistrate, which referred exclusively to the case of Haider Baksh. The Court may inter from these facts that A was not misled and that the error in the charge was immaterial." 21. Furthermore a perusal of sections 225, 232, 535 and 537 of Cr.P.C. shows that every conceivable type of error and irregularity referable to a charge that can possibly arise can be cured. The error or irregularity may range from the cases in which there is a conviction with no charge at all. That may be from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Cr.P.C. is emphatic that whatever the irregularity may be it is not be regarded as a fatal unless there is prejudice. A reference invited to 1980 SCMR 402 (Nadir Shah v . State). 22. In the present case, it is pointed out that before the case proceeded the appellants were provided all the required documents under section 265-C, Cr.P.C. The said documents contained all the details of the allegations and the evidence purported to be produced against each of them. Thus, the appellants came to know the entire case of the prosecution and allegations levelled against each of them by the prosecution even before the framing of the charge. While framing the charge the trial Court committed the above errors, as the charge was not happily worded. It- is pointed out that a seasoned and senior counsel represented the appellants. After framing of the charge, he did not raise any objection in framing such a charge. He also did not apply for making any alteration or amendment in the charge at any stage of the trial by invoking the provisions of section 227, Cr.P.C. to make the charge inconformity with the prosecution allegations. However, the case proceeded: The evidence was led in which the witnesses deposed the prosecution allegations against each appellant. The appellants cross-examined each witness at length and put their defence to the witnesses in it. During that period also the Advocate for the appellants did not raise any objection or pointed out to the trial Court that the framing of the charge and evidence had misled them in their defence. Even at that stage, the appellants could have requested the Court for altering or amending the charge but the appellants kept quiet, which clearly shows that they were not prejudiced or mislead in their defence. It is pointed out that under Explanation- clause of section 537, Cr.P.C. it is provided that in determining whether any error, omission or irregularity in any proceedings under the Code of Criminal Procedure has occasioned a failure of justice, the. Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. In the 'present case, the appellants could have raised objection but they did not do so If they felt that an error or irregularity in the charge misled them or the same had occasioned a failure of justice, then they should have raised such objection at that stage but they did not do so the conduct on the part of the appellants clearly indicates that they were satisfied with the charge and they were not being misled by such charge. It has been held in a case of Nadir Shah v. State (1980 SCMR 402) at page 409, as under:-- "Before dealing with the questions relating to the merits. it is necessary…
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