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Petitioner: GHULAM AKBAR and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Muhammad Afzal Soomro Title: GHULAM AKBAR and others vs THE STATE Case No.:Criminal Appeal No.193 of 1994 Spl. Anti-Terrorism Appeal No.57 of 2001
JUDGMENT
Reported As: 2007 YLR 1506 Result: Leave refused Judgment JUDGMENT (e) Qanun-e-Shahadat (10 of 1984)--- RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special ----Art. 129, Illus. (a)---Presumption of Anti-Terrorism Appeal No.57 of 2001 and existence of certain facts---Scope- - confirmation case No.8 of 2001 as they Illustration (a) of Art.129 of Qanun-e- arise out of a common judgment. Shahadat, 1984, under which it had been explained that in such and such 2. Brief facts giving rise to the circumstances, such type of presumption present appeal and confirmation case are could be raised, could not be confined to that the deceased Safdar Ali was Manager the cases of theft only but its implication in United Bank Limited, Workshop Branch, could be extended to other offences and Sanghar. He was residing in Ward No.8 charges, including even murder, robbery or Sanghar along with his family members. On dacoity---General presumption of 9-1-1999 at about 7-30 a.m. The deceased Illustration (a) of Art.129 of Qanun-e- on his new motorcycle which he had Shahadat, 1984, in circumstances, was that purchased few days back with his daughter the person found to be in recent possession P.W.6 Manza and niece P.W.7 Quratulain of the fruits of the crime was a criminal both aged about 11 years left the house for unless he could account for his possession. Leaving the girls in the school. Within one [p. 1527] M or two minutes the motorcycle reached near Wasim Khan v. Sate of UP AIR the house of Jaipuri on Mithi Khuai Road were a white Jeep was parked in which a arms and ammunition were secured. The person was sitting on driver's seat, two Jeep was also seized. After the arrest, the persons were standing near
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the said Jeep. Appellants were produced before a The said two persons were armed with Magistrate for holding identification test pistols and on the pistols' points the through the eye- witnesses P.Ws. 5 to 7 motorcycle of the deceased was got where they identified the appellants to be stopped. Both the persons had muffled their the culprits of the crime. On the same date faces. They asked the deceased to leave the at 5-00 p.m., .The two appellants namely motorcycle, therefore, scuffle took place Ghulam Akbar and Qasim led the police between one of the culprits and the party and produced pistols and revolvers, deceased with the result that muffle on his which the police secured and sealed. Face was ranoved and the deceased told Thereafter both the appellants led the police him that he was identified. Suddenly that to a sugar cane crop, which was near the person fired from his pistol at the deceased house of the appellant Ghulam Akbar and who received the injury on his left eye. The produced the robbed motorcycle, which the other culprit pushed the deceased. During police secured, and such mashirnama was that period, the muffle of the second culprit prepared. The Jeep and the motorcycle was also removed. The deceased fell down secured from the possession of the on the ground and then the culprits took appellants were produced before the away the motorcycle. The white Jeep Magistrate for holding identification tests parked there followed the culprits. The through the witnesses. The identification P.W. 6 immediately rushed to her house to tests were held and the witnesses 5 to 7 inform the incident to his uncle Azhar identified the Jeep to be a same, which was Abbas, the complainant who after hearing seen by them at the place of incident and the incident rushed to the place of incident the motorcycle to be the motorcycle of the where he found the deceased lying in deceased. After completing the usual injured condition. A police mobile van also investigation, the appellants were challaned reached there. The deceased was shifted to in the Court. the hospital but he was declared dead 4. The learned Special Judge Anti- therefore, the complainant went to police station and lodged the report at 9-30 a.m. Terrorism Court for Hyderabad and Mirpur Khas Divisions at Hyderabad framed the 3. After registration of the case, the charge for offences punishable under police went to the hospital where they sections 302 and 392 read with section 34, completed the formalities of the dead body. P.P.C. The appellants pleaded not guilty to Thereafter the Investigating Officer P.W. The charge. The prosecution examined 20 20 S.H.O. Abdul Haq went to the place of witnesses. The appellants in their incident where he found blood lying there. Statements recorded under section 342, There were one empty bullet shell and one Cr.P.C. Denied all the allegations of the live bullet lying at the place of incident. Prosecution. They did not examine The articles were secured. Sealed and such themselves on oath or lead any evidence in mashirnama was prepared. He then their defence. Recorded the statements of P.Ws. On 5 The learned trial Judge after 9-2-1999, the appellants were arrested while coming on a white jeep from whom considering the evidence and hearing the parties counsel convicted the appellants for pursuance of the above statements, the offence punishable under section 302 read Advocate for the appellants cross-examined with section 34, P.P.C. And sentenced each the listed witnesses as per his statement of them to death. They were further dated 2-6-2000. The prosecution examined convicted for offence punishable under four more witnesses on the point that section 392, P.P.C. And sentenced to suffer incident had created terror in the area. The R.I. For 10 years and fine of Rs.25,000 trial Court recorded the statements of the each or in default thereof, to suffer R.I. For appellants under section 342, Cr.P.C. In one year with benefit of section 382-B, which they denied all the allegations of the. Cr.P.C. Under the judgment dated prosecution but they examined two defence 6-5-1999. The appellants were dissatisfied witnesses,
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with the said judgment, therefore, they preferred an appeal. On 6-4-2000, the 7. The learned trial Judge after appeal was allowed and the case was considering the evidence available on the remanded to the trial Court for proceedings record and hearing the parties' counsel with the case afresh from the stage of convicted the appellants for offence charge, as the charge for offence punishable under section 302, P.P.C. And punishable under Anti-Terrorism Act was sentenced each of them to death. The not framed. Appellants were further convicted for offence punishable under section 392, 6. The trial Court after receipt of the P.P.C. And sentenced to suffer R.I. For 10 case re-framed the charge with the heading years and fine of Rs.50,000 each or in "amended charge" for offences punishable default thereof to suffer R.I. For two years under sections 302, 392 read with section with benefit of section 382-B, Cr.P.C. 34, P.P.C. And section 7 of Anti-Terrorism They were further convicted for offence Act, 1997 on 2-6- 2000. The appellants punishable under section 7 of Anti- again pleaded not guilty to the charge. On Terrorism Act, 1997 and awarded death the same date, the learned prosecutor made sentence under the impugned judgment a statement in writing by which he adopted dated 6-7-2000. The appellants were the evidence that was previously recorded dissatisfied with the said judgment and to examine some additional witnesses, therefore, they have filed the present on the point of amended charge. The appeal. The learned trial Judge has sent learned defence counsel under the reference under section 374, Cr.P.C. For instructions of the appellants made a confirmation of death sentence. Statement in writing by which he informed 8. We have heard the advocates for the Court that he would cross-examine eight witnesses, viz., Doctor, Investigating the appellants, complainant, A.A.-G. For Officer, complainant, the State, and perused the record of this Magistrate. P.Ws.4 to 6 and mashir Abdul Rasheed. On case very carefully. The learned Advocate 3-6-2000, the learned Advocate for the for the appellants has stated that after the remand of the case the trial Court was appellants made another statement in required to try the case afresh by framing a writing by which he informed the Court that he would not cross-examine the other fresh charge and re-recording the evidence of all the witnesses afresh but the trial witnesses as they were already cross- examined before the amended charge. In Court has committed illegality by just framing amended charge and adopted the evidence which was already recorded therefore, it has caused a miscarriage of justice as the evidence was not recorded in the presence of appellants as provided under section 353, Cr.P.C. And the remand order passed by this Court was not complied with properly, therefore, the case may be again remanded to the trial Court for compliance of the order passed by this Court on 6-4-2000. 9. As regards the merits of the case, the learned Advocate for the appellants has stated that the prosecution has relied upon five pieces of evidence (1) Ocular testimony; (2) Recovery of motorcycle; (3) Recovery of Jeep; (4) Recovery of pistol from appellant Akbar with matching report of the ballistic expert; and (5) Identification test, He has further stated that ocular testimony consists of three witnesses out of them P.W.5 was not the resident of Sanghar Town but he was residing in his village and that he is a set up witness. He has further stated that P.Ws.6 and 7 were minor girls at the time of incident therefore, they were tutored, not present at the scene of incident and their evidence is full of improvements, exaggerations and contradictions therefore, it is very unsafe to rely upon the evidence of child witnesses. As regards the identification test of the accused through P.Ws.5 to 7 he has stated that no features of the culprits were disclosed by the witnesses to the police; that they did not assign the role to each appellant; that the witnesses had seen the appellants before the identification test in the Court and that the dummies in all the identification tests were same therefore the the identification tests have become doubtful. As
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regards the recovery of robbed motorcycle from the possession of appellants. Akbar and Qasim he has stated that it was a joint recovery which cannot be relied upon in view of Article 40 of Qanune-Shahadat Order therefore, it has no evidentiary value. As regards the recovery of Jeep, which was found by the witnesses at the place of incident, he has stated that the appellants were not arrested in the manner as claimed by the prosecution; that the Jeep was .In possession of its owner P.W. Muhammad Sharif who has not supported the prosecution case, therefore, the recovery from the possession of the appellants is highly doubtful. As regards the recovery of pistol which was used in the commission of this crime and secured from the possession of appellant Akbar he has stated that the pistol has been foisted upon the appellant to involve him in the case falsely. In support of his arguments, he has relied upon Amir Khan v. State (PLD 1985 Lah. 18), Qaimuddin v. State (1971 PCr.LJ 229), Bagh Ali v. Muhammad Anwar (1983 SCMR 1292), Mujahid Hussain v. State (1985 SCMR 1573), Muhammad Yagoob v. The State (PLD 2001 SC 378), Rasool Bux v. State (1980 SCMR 225), Munawar Niamat v. Federation of Pakistan (NLR 1991 SCJ 291) and Abdul Khaliq v. State (1996 SCMR 1553). 10. On the other hand the learned Advocate for the complainant has stated that the trial Court has not committed any illegality in adopting the evidence of the witnesses whose statements were recorded in the earlier trial as the said statements were adopted with the consent of the appellants; that the said statements were recorded in the presence of the appellants; that the appellants opted to cross-examine eight witnesses and they fully availed the opportunity; that the learned Advocate for the appellants cross-examined all those witnesses at length as a lengthy cross-examination was conducted by him; that no prejudice has been caused to the appellants; that the case was remanded only on the point of framing the charge for offence punishable under Anti-Terrorism Act, that the trial Court has framed the said charge and recorded additional evidence covering the said charge because the evidence was already recorded in respect of other offences on which the charge was already framed in the case, therefore, he has stated that the case is not required to be remanded to the trial Court but a decision may be given at this stage. 11. As regards the merits of the case the learned Advocate for the complainant has stated that all the three eye-witnesses have fully supported the prosecution case and implicated the appellants with the commission of this crime; that their presence at the scene of incident cannot be doubted because both the minor girls who were quite intelligent girls and competent to give evidence were being taken to the school by the deceased and on the way to the school this incident took place; that there are no material contradictions in their evidence; that the presence of P.W.5 was established from the statement of P.W.7. As regards the identification test he has stated that the learned Magistrate performed all the legal formalities and then conducted the identification test in which all the witnesses had correctly pointed out the appellants and that they assigned role to each appellant which they had performed at the place of incident therefore, there is no illegality in the identification test. As regards the recovery of the motorcycle from the joint possession of the two appellants, he has stated that the said recovery is not hit by Article 40 of Qanune-Shahadat Order and can be safely relied upon. As regards the recovery of Jeep from the possession of the appellants, he has stated that the Investigating Officer had arrested the appellants in presence of mashirs; that they have supported the prosecution case and through their evidence, the arrest and the recovery of Jeep have been established that was subsequently identified by the witnesses to be the same Jeep, which was used in the commission of the crime. As regards the recovery of crime weapon he has stated that the said weapon was produced by the appellant Akbar in presence of Investigating Officer and mashir who was a private and independent witness; that they both have supported the
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prosecution case, that there is no discrepancy in their evidence therefore, the said evidence can be safely relied upon. He has further stated that the empty secured from the place of incident matched with the said pistol as per ballistic expert report. He has supported the impugned judgment. 12. The learned A.A.-G. Has stated that the remand order shows that the charge of Anti-Terrorism Act was not framed therefore, the case was remanded, to the trial Court for retrial from the state of charge; that a portion of the judgment cannot be read in isolation but the entire judgment is to be read so as to draw the intention of the remand order; that from the perusal of entire judgment it reveals that the case was remanded for a limited question with regard to the framing of charge of Anti-Terrorism Act as the charge in respect of murder and robbery was already framed and the evidence was recorded on the said charge therefore, the trial Court was not required to record the evidence on the said charge; that the trial Court has rightly adopted the procedure by amending the charge and allowing the parties to lead evidence in support of their respective cases; that section 231, simply provides that the parties may ask to recall the witnesses if they are examined but the parties did not avail the said opportunity with regard to the evidence recorded to prove charge of offences punishable under sections 302 and 392, P.P.C.; that the Hon'ble Supreme Court of Pakistan in the recent decision reported in Abdul Ghaffar v. State (2006 SCMR 56) has decided this point and has observed that if the parties did not ask the Court to recall the witnesses then they cannot agitate subsequently against the procedure adopted by the Court therefore, he has argued that there is no illegality in the trial hence the case is not required to be remanded to the trial Court. 13. As regards the merits of the case, he has adopted the arguments of the learned Advocate for the complainant but further added that the cases of all the three appellants are distinguishable from each other. He has stated that from the evidence the appellant Akbar is responsible for offence punishable under sections 302(b) and 304; P.P.C. Read with section 7(ii) of Anti-Terrorism Act, 1997. As regards the case of appellant Qasim, he has stated that section 302, P.P.C. Is not applicable but he will be responsible for offence punishable under section 394 read this section 397, P.P.C. As regards the case of appellant Luqman he has stated that he was simply sitting in the Jeep at the time of incident; that no overt act has been assigned to him, that no P.W. Has stated that he came out 'from the Jeep therefore, his case is doubtful. 14. We have given due consideration to the arguments gone through the evidence with the help of learned Advocate for the appellants and found that the case of prosecution rests upon five pieces of evidence; (1) Ocular testimony; (2) Identification test of the appellant; (3) Recovery of motorcycle and its identification test; (4) Recovery of Jeep and its identification test; and (5) Recovery of crime weapon with its matching ballistic expert report with crime empty. (sic) advocate for the appellants. The details of earlier trial have been mentioned in the earlier part of the judgment. In the appeal while challenging the judgment of the trial Court, delivered on 6-5- 1999 the learned Advocate for the appellants argued that the charge in the matter was framed under sections 302 and 392 read with section 34, P.P.C. Only and that no charge under the Anti- Terrorism Act was framed in the case therefore the entire case had proceeded as an ordinary trial having no reference of the Anti-Terrorism Act in the impugned judgment and that even no question was put to the appellants for offence punishable under sections 6 and 7 of the Act, 1997 therefore, the trial Court had no jurisdiction in the matter and hence conviction was required to be set aside. The learned Assistant A.-G. Also conceded to the above position therefore, this Court while setting aside the conviction and sentence remanded the case to the trial court only to proceed with the case afresh from the stage of charge with permission to the appellants to raise the point of jurisdiction before the trial Court if they were advised to do so. It will be noticed that
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there was no allegation that the evidence recorded in the case was not proper. However, the learned Advocate for the appellants had argued that the Court had no jurisdiction in the matter. 16. It appears from the order of this Court that the conviction and sentence were set aside because of the fact that no charge for offence punishable under section 7 of the Act, 1997 was framed but it was not set aside for want of jurisdiction as the appellants were permitted to raise such point before the trial Court if they were (sic) section 23 of the Act, 1997 before the trial Court to transfer the case. The learned trial Judge after hearing the parties' counsel dismissed the application on 28-5-2000. The said order was not challenged by the appellants before this Court. Even otherwise when the offence was committed viz. On 9-1-1999 the offence of murder with robbery was a scheduled offence as such the Anti-Terrorism Court had jurisdiction to try the said offences during the first trial. Thus, the evidence recorded in the earlier trial was in accordance with law and by the Court having jurisdiction to try the offences. When the said evidence was recorded at that time the appellants were present and provided opportunity to cross-examine all the witnesses which they availed of, as such, there was no violation of section 353, Cr.P.C. In recording the evidence in the earlier trial. 17. When the case was remanded to the trial Court the evidence on the charge for offences punishable under sections 302, 392 and 34, P.P.C. Was already on the record, which was recorded as per law, by the Court of competent jurisdiction. Before the appellate Court objection was raised that offence punishable under the Act, 1997 was not included in the charge and the allegation of said offence was not put to the appellants in their statements recorded under section 342, Cr.P.C., therefore, the trial was bad. This Court accepted that plea and the case was remanded to the trial Court for retrial from the stage of charge. Thus the judgment of this Court was clear that the retrial was ordered in respect of offence punishable under the Anti-Terrorism Act, 1997, therefore, the trial Court framed the fresh charge mentioning the offences. The trial Court has given the heading to the charge: as "amended charge". 18. Under section 231, Cr.P.C. If the charge is altered then the Court is required to allow the prosecutor and accused to recall or re-summon or examine with reference to such alteration or addition of the charge, any witness who may have been examined or also to call any further witness whom the Court may think to be material. In pursuance of the above provision of law the prosecutor did not fmd it feasible to recall the witnesses whose statements were earlier recorded but requested that he would call further witnesses to prove the amended charge on the Act of Terrorism vide statement dated 2-6-2000. On the same date, the learned defence counsel simply requested the Court that he would cross-examine eight witnesses out of the witnesses whose statements were earlier recorded. The details are already mentioned in the earlier part of the judgment. The Court allowed the request of the defence counsel and recalled those witnesses. The defence counsel conducted lengthy cross-examination to those .Witnesses. It is further pointed out that the examination-in-chief of all these witnesses were recorded in presence of the appellants in the earlier trial and then the cross-examination was also conducted in their presence as such there is no violation of section 353, Cr.P.C. The . Prosecutor also examined four more witnesses in presence of the appellants to whom the defence counsel thoroughly cross-examined thereafter the statements under section 342, Cr.P.C. Were recorded in which all the material pieces of evidence brought on the record were put to the appellants and they explained the circumstances appearing in the evidence. As such, there is no illegality or irregularity in the trial. However, the provisions of section 231, Cr.P.C. Have re-summon the witnesses. In this been examined by the Hon'ble Supreme respect reference can be made to Court of Pakistan in the case of Abdul cases from Indian jurisdiction Ghaffar's case (2006 SCMR 56) in Konmal and another v. Emperor paragraphs 4 to 7 and has observed as AIR 1930 All. 215, wherein it was under:-- held:--
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"(4) Since the question of noncompliance of section 231, Cr.P.C. Has been raised, it would be appropriate to reproduce the said section for ready reference:-- "231. Recall of witnesses when charge altered.----"Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material." According to this section, whenever a charge is altered or added by the Court, after commencement of the trial, the prosecutor and the accused shall be allowed to recall or re- summon and examine with reference to such alterations or additions, any witness who may have been examined-, the section couched in the words indicative of the fact that first a request or an application be made to that effect as 'to allow' or grant of permission is generally preceded by a request or application. Since no such request or application has been made, therefore, it was not necessary for the Court to examine or recall or "There is no duty laid on the Court under or re-summon prosecution or defence witnesses and so there is no breach of any provisions in section 231 if the Court does not so enquire. It is essential that the accused should ask for permission." And another case of Musahru and others v. Emperor AIR 1930 Pat. 355, in which it was held:-- "Had the accused after the…
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