MUHAMMAD SHAHID Versus State

SYED MAZAHAR ALI AKBAR NAQVI, J .--- Muhammad Shahid son of Ghulam Nabi (appellant) along with Sagheer Ahmed, Shahzad Ahmad, Amir Bashir, Bashir Ahmad and Ahmed Din was tried by the learned Additional Sessions Judge, Pasrur District Sialkot in case F.I.R. No.129 of 2003 dated 17-5-2003 at the instance of one Muhammad Anwar son of Qaim Din under sections 302/324/148/149 P.P.C. Police Station Sabaz Pir, Tehsil Pasrur, District Sialkot. The learned trial Court recorded the statement of prosecution witnesses, the accused named in the F.I.R. were examined under section 342 Cr.P.C. and after the conclusion of trial, the learned trial Court vide judgment dated 27-5-2004 convicted Muhammad Shahid appellant, in the following terms : ---

(i) Under section 302(b) P.P.C . death sentence

Fine Rs.50,000 to be paid to the legal heirs of deceased in terms of section 544, Cr.PC or in default whereof to undergo six month' SI.

(ii) Under section 324, P.P.C . 10 years' R.I.

Fine Rs.5000

(iv) Under section 337-F(iii) P.P.C . 3 years' R.I. for causing hurt to Said Ahmad.

Fine Rs.1000 as Daman, in case of default in payment of fine and Daman the convict was to further undergo for six months' S.I.

(v) The fore-stated sentences were to run concurrently. Benefit of section 382, Cr.PC was given to the appellant.

(vi) Accused Qamar ul Islam never surrendered during the trial and he was declared as proclaimed offender.

(vii) All the other accused namely Sagheer Ahmad, Bashir Ahmed, Ahmad Din, Shahzad and Amir were acquitted of the charge by extending them benefit of doubt by the learned trial Court.

2. Feeling aggrieved by the judgment of the learned trial Court, the appellant preferred Criminal Appeal No.163-J of 2004 whereas the trial Court has sent Murder Reference (632/04) seeking confirmation of death sentence awarded to the appellant in terms of section 374, Cr.P.C. Both these matters arising out of the judgment impugned are being disposed of jointly through single judgment.

3. According to the contents of F.I.R. it is mentioned that complainant belongs to village Ghumnal and is cultivator by profession. On 17-5-2003 at about 2-30 p.m. he was present in his garden, which is located towards Northern side of the village and was tying his cattle heads. Zafar Ahmad brother of complainant and one Said Ahmed son of Ahmad Din were sitting on cots in front of the garden in the shop of one Sarfraz son of Muhammad Saddique Caste Arain. The said Sarfraz, shopkeeper was not present at that time. In the meantime from the village side Shahid Ahmad son of Ghulam Nabi appellant, Qamar-ul-Islam son of Bashir Ahmed, Sagheer Ahmed son of Ahmad Din while armed with rifles, Shahzad and Amir sons of Bashir Ahmed equipped with pistol .30 bore. Bashir Ahmed and Ahmad Din son of Allah Din empty handed, all Rajput by caste approached there. Bashir Ahmed and Ahmad Din raised Lalkara to catch hold of Zafar Ahmed and should not be spared and killed him. On the instigation of aforesaid Bashir Ahmad and Ahmad Din, Muhammad Shahid appellant fired straight at Said Ahmed, which hit on his KULAHA (Zygomatic orch) and he became injured. Thereafter Muhammad Shahid appellant, Qamar ul Islam (since P.O) and Sagheer Ahmed made firing with their respective rifles hitting Zafar Ahmed deceased which hit on the left side of mouth of Zafar Iqbal, left side of his abdomen and right back side of his abdomen. Zafar Ahmad after sustaining injuries fell down and died at the spot. Shahzad and Aamir (since acquitted) continued firing with their respective pistols and also raising Lalkaras that if any person came near to them he would be murdered. The complainant did not go near the place of occurrence because of fear and continued raising noise. Muhammad Tufail son of Qaim Din and Munawar Hussain son of Ghulam Hussain residents of the village approached to the place of occurrence due to hue and cry and had also seen the occurrence. They also raised hue and cry, resultantly a lot of person from the village including women folk also approached the place of occurrence. On seeing so many people, all the accused left towards the village where a white coloured car was parked in the Haveli of Bashir Ahmed. Shahid, Qamar ul Islam, Shahzad and Aamer boarded therein and fled away towards Kangra.

4. The motive behind the occurrence is that some time ago, an incident took place in which Zafar Ahmad deceased opposed the accused party due to their highhandedness, which caused annoyance to them and today after sharing the common intention they committed the murder of Zafar Ahmad.

5. Investigating Officer claimed during course of trial that he had not given any definite opinion about the occurrence. All the accused named in the F.I.R. were sent to Court for their trial in accordance with law and accused Qamar ul Islam son of Bashir Ahmed did not appear, therefore, he was declared absconder.

6. Charge was framed on 2-4-2004 by the learned Additional Sessions Judge Pasrur in which all the accused pleaded not guilty and claimed trial of the aforesaid case. They also claimed to produce defence evidence, therefore, the learned Trial Court summoned prosecution evidence for 6-4-2004. On 6-4-2004, the Court could not proceed due to non-availability of complainant although four prosecution witnesses were present in the Court and it was adjourned for 7-4-2004. On the said date again four prosecution witnesses were present in Court but due to non-engagement of counsel on behalf of Muhammad Shahid appellant, trial could not be progressed, brother of Shahid appellant, appeared in the Court and stated that he will engage a counsel in a couple of days. So, the case was adjourned for prosecution evidence till 9-4-2004. On 9-4-2004 appellant Muhammad Shahid appeared in Court and showed his intent to make confessional statement. The opening sentence of interim order of the learned Trial Court dated 9-4-2004 reveals that the reason for making confessional statement was that "he was poor enough to engage his counsel". At the same time, the interim order reveals that he also showed his inclination that he should be provided services of counsel on State expenses. Learned Trial Court in the interest of justice, appointed Mr. Shakeel Ahmed Bhatti Advocate as counsel for the appellant on State expenses. Muhammad Shahid appellant also reposed his confidence for the service of aforesaid Advocate. The provision of service of advocate is established from the interim order still. The appellant insisted upon to make confessional statement for which he was forbidden and it was made him clear that he is not bound to make any confessional statement and if it would come on the record it would be read against him. He was allowed time to reconsider his offer and for that free atmosphere in the Court was granted to him and he was also made free from the clutches of handcuffs. It is astonishing that despite of the whole practice, Muhammad Shahid appellant with the consultation of the counsel kept on insisting that he is prepared to make confessional statement. Mr. Shakeel Ahmed Bhatti, counsel appointed at State expenses withdrew his power of attorney, which was allowed by the Court and the case was adjourned for 12-4-2004. The interim order clearly depicts that the appellant was in emotional state of affairs at that time. On 12-4-2004 Muhammad Shahid appellant appeared before the court with rest of the accused with their learned counsel and again showed his inclination to make confessional statement. He was released from the handcuffs and was given ample time to re-ponder and after considerable time given by the Court he again showed his inclination to make confessional statement. The learned trial Court informed him the consequences of his making confessional statement. In this regard three questions were also put by the Court to him which are reproduced as under: --

Q.No.1. "Do you know that you are present in a Court of competent jurisdiction to try the offence of murder of Zafar Ahmad son of Qaim Din and for injury of Said Ahmad son of Ahmad Din falling under sections 302/324 P.P.C.?

Ans.2. Yes. I know.

Q.No.2. Is there any pressure on you to make the statement or you have been persuaded for the same?

Ans. No, I am making statement voluntarily.

Q.No.3. Do you know that the statement whatsoever shall be made by you, may be read against you in evidence and you may be convicted upon the basis of your statement?

Ans. Yes. I know."

7. The learned trial Court thereafter recorded the statement of Muhammad Shahid, appellant (without oath) wherein he confessed as under: ---

"On 17-5-2003 at 2-30 p.m. I being armed with rifle .244 bore fired at Zafar Ahmed son of Qaim Din, resident of Ghumnaal (deceased) which hit him on his mouth, abdomen and he died at the spot. Moreover, upon my firing Said Ahmed son of Ahmad Din was also injured at his hip. No other person made firing on deceased or the injured. Only I am responsible for causing murder of Zafar Ahmad and inflicting injury to Said Ahmed (injured), however, I committed this offence at the asking of Arshad son of Anwar, Zuifiqar son of Abdul Ghani, Liaqat son of Khuda Bakhsh, Munawar Hussain alias Labha son of Ghulam Hussain resident of village Ghumnaal, Police Station, Sabaz Pir. The accused Qamar Islam, Saghir Ahmed, Shahzad Ahmed, Bashir Ahmed son of Allah Din, Amar Bashir son of Bashir and Ahmad Din son of Allah Din neither instigated me nor were present at the spot nor took part in the occurrence. They have been falsely implicated in this case."

8. After recording the confessional statement of Muhammad Shahid appellant, the learned trial Court proceeded with the trial qua rest of the accused persons. On 12-5-2004 Syed Munawar Ali Naqvi, Advocate put appearance before the Court and prayed to become counsel of Muhammad Shahid accused/appellant on State expenses. Muhammad Shahid appellant also reposed confidence in him. Accordingly the learned trial Court appointed Syed Munawar Ali Naqvi, as Advocate of Muhammad Shahid accused on State expenses. He was ordered to place Vakalatnama on behalf of Muhammad Shahid accused/appellant which was accordingly done. Learned counsel for Muhammad Shahid, accused opted not to cross-examine P.Ws. 8 to 11 (ocular account as Muhammad Shahid accused appellant was still strict to his confessional statement recorded on 12-4-2004). The learned trial Court proceeded with the trial and after recording of evidence of P.Ws. 13 and 14 closed the prosecution evidence.

9. The statements of accused under section 342 Cr.P.C. were recorded except the statement of Muhammad Shahid appellant by the learned trial Court and thereafter providing an opportunity of hearing to the defence, concluded the trial and convicted and sentenced the appellant Muhammad Shahid as noted above.

10. At the very outset, learned counsel for the appellant Muhammad Shahid has raised preliminary objection/point that the appellant was not properly defended before the trial Court and as such the charge and the evidence recorded by the trial Court in absence of counsel for the appellant for capital punishment is void ab initio and it vitiates the trial. Learned counsel further submitted that the learned trial Court would have not acted according to law and the conviction awarded by the learned trial Court cannot be sustained in the given circumstances being violative of law and the express provisions of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel vehemently argued that confessional statement recorded by the learned trial Court is nullity in the eyes of law and by any stretch of imagination it cannot be termed as a confessional statement.

11. Learned Additional Prosecutor General could not controvert the contentions raised by the learned counsel for the appellant and almost conceded that the trial conducted by the learned trial Court is a sheer of violation of the express provisions of law and is hit by the provisions of Constitution as well. It was jointly prayed that the case in hand cannot be decided without fulfilling the legal requirements, the same would be remanded back to the learned trial Court to proceed afresh for appointing learned counsel to conduct the trial but prayed that as considerable time has been lapsed, therefore a direction regarding a limit for conclusion of the trial would be in the interest of justice.

12. We have given due consideration to the arguments, gone through the record and evaluated the evidence.

13. Now coming to the legal proposition of law it is surprising that the learned trial Court skipped over the provisions of section 340(1), Cr.PC wherein it has been clearly mentioned as under:---

Section 340(1). Right of person against whom proceedings are instituted to be defended and his competency to be witness "that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader."

14. Similarly according to Article 161 of Qanun-e-Shahadat Order, 1984, if the Court has not appointed a counsel to cross-examine the witnesses in a case of capital punishment then the same duty is conferred upon the Court to cross-examine the witnesses to extract the truth to arrive at a just decision of the case. Admittedly in this case learned trial Court neither absolved duty of appointing counsel to defend the appellant as per requirement of section 340 nor performed duty conferred in Article 161 of Qanun-e-Shahadat Order, 1984. Article 161 is reproduced as under:---

Article 161. Judge's power to put question or order production . "The Judge may in order to discover or to obtain proper proof of relevant facts, ask any question he places, in any form, at any time of any witness, or to the parties about any fact relevant or irrelevant and may order the production of any document or things and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts, declared by this order to be relevant and duly proved:

Provided also that this Article shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witnesses would be entitled to refuse to answer or produce under Articles 4 to 14 both inclusive, if the question was asked or the document was called for by the adverse party nor shall the Judge ask any question which it would be improper for any other person to ask under Article 143 or 144 nor shall he dispense with primary evidence of any document except in the cases hereinbefore expected."

15. Similarly the High Court Rules and Orders, Volume III, Chapter 24, Rule 2 provides that:---

"If the accused is unrepresented and cannot afford to engage counsel, the Sessions Judge shall make arrangements to employee counsel at Government expenses and he may also appoint counsel, if he thinks fit, even when the committing Magistrate has considered that the accused has means enough to engage counsel himself. Counsel in such cases should be appointed in time to enable him to study necessary documents which should be supplied free of cost...."

16. Above all the Constitution of Islamic Republic of Pakistan, 1973 (amended up to date) also confers a Constitutional right which is inalienable to every citizen of Pakistan to have the services of legal practitioner of his own choice. Article 10(1) of the Constitution of the Islamic Republic of Pakistan embodied the "Miranda Rule" which has been drafted from Miranda v. Orizona 384 U.S. (1966), the Miranda Rule was formulated as follows:

(i) If a person is to be subjected to interrogation, the officers must inform him in unequivocal terms that he has a right to remain silent.

(ii) There must be a warning that anything that the suspect says, can and will be used against him in a Court of law.

(iii) The suspect has a right of counsel even during the investigation.

(iv) If a person cannot afford a counsel, he must be provided one even during investigation, by the State.

Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973 is reproduction of the same "Miranda Warning" and the same is reproduced as under:---

"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice."

17. From the above discussion, it follows that the accused is required to be defended by a counsel of his choice as a matter of right especially in cases of capital punishment, the law protects the right of the accused as a duty which cast upon the State to bear the expenses of Advocate if the accused is unable to engage an Advocate due to financial restraints. The concept of "counsel of his own choice" has very vast meanings. It is incumbent upon the State to provide the counsel to whom the accused reposed confidence and feels safe in his hand during the course of trial. If the government exchequer can bear the expenditure of paying heavy fee to the Public Prosecutor/Special Public Prosecutors to establish the clutches of guilt then if the same analogy is applied in the case of the accused persons, the responsibility of the State equally renders to pay the expenses of defence counsel to the accused persons to meet the ends of justice. Therefore, the learned trial Court has denied the basic right to the appellant by not affording an opportunity to be defended by a counsel of his own choice. Guidance in this regard is rendered from the judgment of this Court reported in re: Muhammad Hashim Raza v. The State 1997 MLD 1130, re: Qalandro alias Nazro v. The State 1997 MLD 1632 and "Nazir Hussain v. Muhammad Yaqub PLD 1986 Lah.

115. It has been noticed by us from perusal of certain interim orders of the learned trial Court that the appellant was afforded an opportunity to cross-examine the witnesses produced by prosecution. The practice of provision of an opportunity to accused to cross-examine the witnesses has been deprecated by the superior Courts from time to time because the ability to cross-examine the accused cannot be substituted of cross-examination by a counsel. Reference in this case is given in re: Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550.

18. Now we take up the confessional statement made by the appellant. As far as the statement of the appellant is concerned, just two days prior to making of the confessional statement Muhammad Shahid appellant denied the charge which was read over to him and he not only denied the charge rather he opted to adduce the defence evidence. Admittedly he made confessional statement when he could not arrange the counsel to be defended by an accused of his own choice due to financial restraints especially when the learned trial Court had expressly observed that mental condition of the accused does not seem to be stable. If so the learned trial Court would have provided him services of legal practitioner of his own choice. The confessional statement made by the appellant is otherwise without oath therefore, it cannot be termed as a confessional statement by any stretch of imagination when it is not voluntarily with free application of mind.

19. In this case the appellant denied the charge at the first instance. Thereafter during the trial he made statement without any oath confessing the guilt. Learned trial Court did not make decision at the same time rather proceeded with the trial and examined all the witnesses while associating the appellant in the trial although he was not provided legal assistance as required under the law. At the end of the trial no question was asked from the appellant under section 342, Cr.P.C. and he was not asked if he wants to appear as his own witness under section 340(2), Cr.P.C. Similarly the said so-called confessional statement was without oath and keeping in view all the circumstances discussed above, the said confession is of no legal value and as such the conviction of the appellant cannot sustain in law.

20. Resultantly Criminal Appeal No.163-J of 2004 is allowed. The case to the extent of the appellant is remanded back to the learned trial Court for a fresh decision after recording of evidence and providing legal assistance to the appellant and in case he has not enough means the counsel at State expense be provided to him. It is made clear that the acquittal of the co-accused of the appellant shall remain intact. The file of the case be sent to the learned trial Court who is directed to conclude the trial of the case within three months after the receipt of the file. During this period, the appellant shall be treated as under trial prisoner.

21. Since we have allowed the appeal while remanding the case to the learned trial Court, therefore, Murder Reference No.632 of 2004 is answered in the negative. Sentence of death is NOT CONFIRMED.

N.H.Q./M-123/L Case remanded.