Molvi GHULAM MURTAZA Versus State

NAIMATULLAH PHULPOTO, J .---Appellants Molvi Ghulam Murtaza and Waseem were tried by learned IInd Additional Sessions Judge, Badin for offences punishable under sections 302, 376 and 511, P.P.C. [Sessions Case No.39 of 2015 arising out of Crime No.09 of 2014 registered at Police Station Kadhan]. After regular trial, vide its judgment dated 06.02.2018 appellant Molvi Ghulam Murtaza was convicted under section 302(b) read with section 34, P.P.C. and sentenced to death. While appellant Waseem was convicted under section 302(b) read with section 34, P.P.C. and sentenced to imprisonment for life. Both appellants were also convicted under section 376 read with section 34, P.P.C. and sentenced to 14 years R.I with directions to pay Rs.2,00,000/- each as compensation to the legal heirs of deceased as provided under section 544-A, Cr.P.C and in case of default thereof, it was ordered that they shall further suffer R.I for one year each. Sentences awarded to accused Waseem were ordered to run concurrently. However, he was extended benefit of section 382-B, Cr.P.C. Trial Court had made reference to this Court for confirmation of death sentence awarded to appellant/accused Molvi Ghulam Murtaza as required under section 374, Cr.P.C. Trial Court held separate trial of juvenile offenders Bilawal alias Bilal and Aadil in aforesaid crime being Sessions Case No.39-A of 2015. After conducting trial according to Juvenile Justice System Ordinance, 2000, vide its judgment of even date both juvenile offenders were convicted under section 302(b) read with section 34, P.P.C. and sentenced to life imprisonment each. They were also convicted under section 376 read with section 34, P.P.C. and sentenced to suffer R.I for 14 years each with directions to pay Rs.2,00,000/- each as compensation to the legal heirs of deceased as provided under section 544-A, Cr.P.C and in case of failure in payment of compensation, to further suffer R.I for one year each. The sentences awarded to both juvenile offenders were ordered to run concurrently, with benefit of section 382-B, Cr.P.C.

2. Being aggrieved and dissatisfied with aforesaid judgments appellants Molvi Ghulam Murtaza and Waseem filed separate appeals bearing Nos.D-22 and 24 of 2018 respectively while juvenile offenders appellants Bilawal alias Bilal and Aadil filed Appeal bearing No.D-25 of 2018, which all are being decided by us through this single judgment along with reference made by the Trial Court for confirmation of death sentence.

3. The prosecution case against the appellants as divulged from the contents of FIR as mentioned in para-2 of the impugned judgments passed by the Trial Court are reproduced below:

"2. The accused are said to have committed forcible rape with deceased Muqadas in a mosque where she used to go to have an education of Quran Sharif and accused Molvi Ghulam Murtaza was teacher and Waseem, Adil and other boys of the village used to go for Quran'nic education. On the fateful day i.e. 10.04.2014 in the morning complainant left her in the mosque but at close hours of Madersa she was stopped and confined in a room of the mosque as informed by the children to complainant on which complainant, Muhammad Faryad, Ali Asghar and Muhammad Tufail went in the mosque, the girl was lying in unconscious condition and four persons namely accused Molvi Ghuam Murtaza, Waseem, Bilal and Adil were present who on seeing the complainant party ran away. It is stated that the victim girl was then brought for treatment to compounder Hyder Ali Khaskheli on 10.04.2014 and then they went to their houses but her condition deteriorated, hence she was taken to Dr. Muhammad Ali Khatti who gave prescriptions and administered the injection and advised the complainant to take her to Badin as her condition was bad. But she died on the way at 10/11 p.m and she was then got checked up at Jaffery Medical center Badin where doctor disclosed that girl had died on the way and that complainant then disclosed facts to his cousin Abdul Khalique and they got such entry recorded at Police Station and obtained letter for postmortem and after receiving dead body and her burial the present FIR was lodged by the complainant on 12.04.2014 at Police Station Kadhan to the effect that Ghulam Murtaza, Waseem Arain, Adil and Bilal Arain with a view to commit Zina have committed violence again the girl aged about 12 years and went unconscious and could not bear pain, therefore, died."

4. After usual investigation, challan was submitted against all the aforesaid accused/appellants, where-after, as mentioned above, case of juvenile accused/appellants was tried under the provisions of Juvenile Justice System Ordinance, 2002 separately from the case of adult accused/appellants. At trial, Trial Court examined 17 witnesses, who produced certain documents. Thereafter, prosecution side was closed and then statements of accused/appellants were recorded under section 342, Cr.P.C, in which they denied the prosecution's allegations and claimed false implication in the case. After hearing the learned counsel for parties and assessment of evidence, vide separate judgments dated 06.02.2018 learned Trial Court convicted and sentenced all the accused/appellants, as stated above.

5. Learned defence counsel mainly argued that important piece of evidence regarding dying declaration, as mentioned by the PW-2, mother of deceased baby, was not put to the accused at the time of recording their statements under section 342, Cr.P.C for explanation. It is further argued that Trial Court has relied upon that piece of evidence for conviction and main appellant (Molvi Ghulam Murtaza) has been sentenced to death. Learned counsel for appellants while relying upon the recent judgment dated 04.03.2021 passed by Hon'ble Supreme Court in the case of Jan Muhammad v. The State [Criminal Appeal No.77 of 2020] submitted that conviction cannot be maintained, if all incriminating pieces of evidence were not put to the accused at the time of his/her statement under section 342, Cr.P.C for response.

6. Learned DPG conceded the above submissions and submitted that case may be remanded to learned Trial Court for recording statements of accused/appellants afresh by putting all incriminating pieces of evidence to them in their statements under section 342, Cr.P.C for their response.

7. Perusal of impugned judgments reveals that prosecution has mainly relied upon the evidence of complainant and his wife Mst. Khalida Parveen and medical evidence furnished by lady Doctor, who conducted postmortem of the deceased and took the vaginal swabs. In order to appreciate the contentions of learned defence counsel, we have carefully gone through the statements of appellants/accused recorded by Trial Court under section 342, Cr.P.C. The scanned copy of statement of main accused Molvi Ghulam Murtaza is reproduced below:

8. We have also perused the evidence of PW-2 Mst. Khalida Parveen, mother of deceased girl, who deposed that present incident took place on 10.04.2014, when her daughter has gone to the Mosque for recitation of 'Holy Quran', she did not return back, as she was detained by Molvi Ghulam Murtaza then the girl was brought to home in unconscious condition and when she regained her senses she informed her that Molvi Ghulam Murtaza, Waseem, Adil and Bilawal confined her in Mosque, caused fists blows and put-off her clothes and committed zina with her and she went unconscious . This material/incriminating piece of evidence has not been put to the accused persons at the time of recording their statements under section 342, Cr.P.C. The Trial Court in para-17 of the impugned judgment has relied upon this piece of evidence and mentioned that the important evidence in this case is of PW Mst. Khalida Parveen mother of deceased. For ease of reference para-17 of the impugned judgment is reproduced below:

"17. The important witness in this case is P.W Mst. Khalida Parveen the mother of deceased Muqadas. She besides the other details as informed to her by complainant has deposed regarding the dying declaration of her deceased daughter Muqadas. She has deposed in her evidence (Exh.10) that after regaining her senses the deceased Muqadas on inquiry disclosed before her that Molvi Ghulam Murtaza, Waseem, Adil and Bilawal had confined her in mosque, caused fists blows, turn off her clothes and then they all committed Zina with her and after that she became unconscious."

9. It has been observed by us that main piece of evidence, as deposed by PW-2 Mst. Khalida Parveen and relied upon by the learned Trial Court for conviction has not been put to appellants/accused while examining them under section 342, Cr.P.C. It is observed that Trial Court has recorded the statements of accused under section 342, Cr.P.C in a very casual manner and committed illegalities, which are not curable under the law. It has been held time and again by the Hon'ble Supreme Court that a piece of evidence produced by the prosecution against an accused, if not put to accused while examining him/her under section 342 Cr.P.C cannot be used against that accused. The rationale beyond is that the accused must know and respond to the evidence brought against him/her by the prosecution. The accused must have firsthand knowledge of all the aspects of the prosecution case being brought against him/her, as held by the Hon'ble Supreme Court in the case of Jan Muhammad v. The State (Criminal Appeal No.77 of 2020). The relevant para-5 is re-produced below:-

"5. It has been observed by us with concern that none of the afore mentioned pieces of evidence has been put to the appellant while examining him under section 342, Code of Criminal Procedure. It has been laid down many a time by this Court that a piece of evidence produced by the prosecution against an accused if not put to accused while examining him under section 342, Code of Criminal Procedure cannot be used against him. The rationale behind it is that the accused must know and then respond to the evidence brought against him by the prosecution. He (accused) must have firsthand knowledge of all the aspects of the prosecution case being brought against him. It appears that even the learned Judge in chambers, of High Court while reappraising evidence available on record did not consider this aspect of the matter. Keeping in view the peculiar circumstances of the case, learned Counsel for the appellant and learned Additional Prosecutor General, Sindh assisted by widow of deceased are in agreement that the matter needs to be remanded to the learned trial Court for re-recording statement of appellant under section 342, Code of Criminal Procedure while putting all pieces of prosecution evidence produced during trial to him, giving him an opportunity to know and respond to the same."

10. For the above stated reasons the captioned appeals are partly allowed. Resultantly, conviction and sentence awarded to the appellants/accused by Trial Court through impugned judgments are set aside. Consequently, appellants/accused shall be treated as under-trial prisoners. The case is remanded back to learned Trial Court with directions to record the statements of all appellants/ accused under section 342, Cr.P.C afresh by putting all incriminating pieces of prosecution evidence so brought against them, enabling them to know and respond to the same and then after hearing the learned counsel for the parties decide the case within a period of one month of the receipt of this judgment strictly in accordance with law. Confirmation reference made by the Trial Court is answered in NEGATIVE.

11. In view of the above, captioned appeals as well as confirmation reference are accordingly disposed of.

JK/G-17/Sindh Case remanded.