Abdul Raheem Brohi vs Muhammad Sharif and Others
This criminal appeal arises from a judgment of the trial court convicting the appellant for murder and other related offences following a trial for a triple murder and assault. The core legal question concerns whether material procedural omissions, specifically failing to recall a medical officer for re-examination after an amendment of the charge and failing to properly record convictions and specify determinations on all counts under the Code of Criminal Procedure, vitiate the trial. The Sindh High Court held that such omissions occasioned a failure of justice and were contrary to mandatory statutory provisions. The court set aside the impugned judgment and remanded the matter back to the trial court for fresh decision after re-examining the medical officer. The key principle laid down is that failure to follow mandatory procedural safeguards such as recalling witnesses upon charge amendment and failing to render judgments compliant with statutory requirements regarding all charged counts results in a mistrial necessitating remand.
- Does failure to recall a medical officer for re-examination after the amendment of a charge cause a failure of justice?
- Is it mandatory for a trial court judgment to contain points for determination and decisions thereon for every offence charged?
- Can procedural omissions in a criminal trial be cured by remanding the case to the trial court?
- Section 265-H(ii), Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 231, Code of Criminal Procedure 1898
- Section 367(1), Code of Criminal Procedure 1898
1. IRSHAD ALI SHAH, J.- It is the case of prosecution that the appellant together with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, committed murders of Mst. Zarina, Mst.
2. Sanam and Mst. Samreen, by causing them fire shot injuries and then went away by causing fire shot injuries to PW Mst. Shanul with intention to commit her murder too and making fires in air to create harassment, for that the present case was registered.
3. On due trial, the appellant was found guilty for the above offence and was convicte d and sentenced by learned trial Court in following terms; "I convict him under section 265-H(ii) Cr.PC for offence punishable under section 302,324,337-H(ii), 148,149 PPC and sentence him to suffer imprisonment for life and fine of Rs.200,000/- (Two Lacs) to payable to legal heirs of deceased ladies and in case of failure to deposit the fine amount, the accused shall suffer two years more. The accused Ghulam Hyder alias Hyderi further sentenced under section 324 PPC and sentence him to suffer R.I for two years and pay Rs.100,000/- (One Lac) to injured Mst. Shanul and in case of default in fine amount he shall suffer S.I for one year ."
4. The perusal of record reveals that Dr.Quratul Ain, who conducted the postmortem reports on dead bodies of the deceased on amendment of the charge, was not recalled for re-examination, which was mandatory in terms of Section 231 Cr.PC; such omission has occasioned in failure of justice. It was a triple murder case; there is nothing in impugned judgment, which may suggest that the accused have been convicted and sentenced for triple murder; the conviction on proof of murder , if any, ought to have been on three counts; the appellant was also found guilty for offence punishable under section 337-H(ii) PPC and 148 PPC but no conviction for the said penal sections has been awarded to him, which is contrary to mandate contained by Section 367(1) Cr.PC, which prescribes that every judgment shall contain points for determination, decision thereon and reasons for such decision.
5. Learned counsel for the parties before the Court when were confronted with above omissions, were fair enough to say that those omissions could only be cured on remand of the case.
6. In view of above, the impugned judgment to the extent of the appellant is set-asi de with direction to learned trial Court to recall and re-examine medical officer Dr. Quratul Ain and then to proceed and decide the case afresh in accordance with law independently , without being influenced by the findings which have been recorded in earlier judgment.
7. The instant Criminal Jail Appeal is disposed of accordingly .