Ghulam Nabi Versus State
Amjad Ali Bohio, J .--- Appellants have challenged the judgment dated 03-10-2023, passed in Sessions Case No. 87/2021 by the learned Additional Sessions Judge-I/MCTC, Umerkot, convicting them as follows: i. Accused Ghulam Nabi son of Muhamad Hassan Bhatti and Abdul Latif son of Ibrahim Bhatti are convicted under Section 265-H(ii) CrP.C., and sentenced to life imprisonment for the offence of Qatl-i-Amd under section 302(b), P.P.C as Ta azir and to pay fine of Rs: 100,000/- each and in case of default they shall suffer six months more simple imprisonment. ii. They are further convicted under Section 265-H(ii) Cr.P.C., for the offence under sections 337-A(i), 34, P.P.C and sentenced to pay Rs: 20,000/- to injured PW Muhamad Bachal as Daman and to suffer six months imprisonment. In case of default in payment of Daman, they shall suffer one week more simple imprisonment.
(iii) They are further convicted under section 265-H(ii), Cr.P.C., for the offence under section 337-F(i), 34, P.P.C and sentenced to pay Rs: 20,000/- to injured PW Muhamad Bachal as Daman and to suffer six months imprisonment. In case of default in payment of Daman, they shall suffer one week more simple imprisonment.
The benefit of section 382-B, Cr.P.C., was also extended to the accused persons.
2. As per the narration in the First Information Report (FIR), the appellants, along with the absconding accused Nazar Muhammad alias Nazroo, who was duly armed, in furtherance of their common intention, committed qatl-i-amd of the deceased Qambar and inflicted hatchet injuries on PW Muhammad Bachal. Consequently, the complainant, Bashir Ahmed, lodged the FIR on 08-08-2020 at 1500 hours.
3. After usual investigation, challan was submitted against the accused before court for the aforementioned offenses. The trial court, after completing all formalities, framed the following charge against the appellants, to which they pleaded not guilty and claimed trial.
"I charge you accused Ghulam Nabi that on 08.08.2020 at 0200 hours, at Bustan Shakh to village Muhammad Waris Dhandal Link road, near village Mangho Kolhi Colony, Taluka Kunri, being armed with pistol you along with co-accused Abdul Latif armed with hatchet and absconding accused Nazar Muhammad alias Nazroo armed with pistol in furtherance of your common intention intercepted the rickshaw of complainant party and made pistol shots upon Qambar Rind (brother of complainant) thereby committed an offence of qatl-i-amd punishable under section 302, P.P.C which is within the cognizance of this Court.
I further charge you accused Abdul Latif that on same date, time and place you inflicted blunt side hatchet blow injuries to PW Muhammad Bachal which were declared Shajjah-i-Khaiffifah and Ghyr-i-Jaifah Damiyah thereby you have committed offences punishable under sections 337-A(i), 337-F(i), P.P.C which is within the cognizance of this Court.
I further charge you both accused that the aforesaid criminal acts were done by you in furtherance of your common intention, therefore, each of you is liable for that all aforesaid acts in the same manner as if these were done by you alone, as prescribed under section 34, P.P.C.
To prove its case, the prosecution examined the PW-01 Dr. Gomoon Mal (Ex.06), PW-02 Tapedar Kalyan (Ex.07), PW-03 complainant Bashir Ahmed (Ex.08), PW-04 Mithu (Ex.09), PW-05 Mashir Ali Muhammad (Ex.10), PW-06 injured Muhammad Bachal (Ex.11), PW-07 HC Zahid Hussain (Ex.12), PW-08 Mashir PC Muhammad Shahid (Ex.13), PW-09 1.0/Inspector Lalu Mal (Ex.14), PW-10 I.O/SIP Iftikhar Bajwa (Ex.15). These witnesses produced various documents and recovered substances during their evidence before trial Court.
5. On closure of prosecution side of case, appellants in statements recorded under section 342, Cr.P.C., pleaded their innocence. However, they neither testified on oath as provided by Section 340(2) of the Cr.P.C., nor produced evidence in their defence.
6. After hearing the parties and evaluating, the evidence adduced by the prosecution, the Trial Court found appellants guilty as charged, leading to their conviction and sentences as reproduced above. Subsequent to such findings, the appellants have filed the instant appeal challenging their conviction and sentences.
7. I have heard to arguments urged by the learned counsel for the appellants and Additional Prosecutor General in presence of complainant. I have meticulously re-examined prosecution evidence, as elucidate by the appellant's counsel, the contents of impugned Judgment in line with case law cited by learned counsel for the appellants.
8. Perusal of the record reveals that the prosecution, in order to prove the charge, examined total of ten witnesses. However, the examination-in-chief of the following prosecution witnesses was recorded in the absence of the learned counsel for the appellants, and their cross-examination was conducted on subsequent hearings:
(1) Examination in chief of PW-01/Medical Officer Gomoon Mal was recorded on 18.09.2021 in absence of Advocate for the appellants and the matter was adjourned at request of Junior partner of Advocate for the appellants who conducted his cross examination on 18.12.2021.
(ii) Examination in chief of PW-02/Tapedar Kalyan was recorded on 18.09.2021 in absence of Advocate for the appellants and the matter was adjourned at request of Junior partner of Advocate for the appellants who conducted his cross examination on 16.10.2021, and
(iii) Examination in chief of PW-08/PC Muhammad Shahid was recorded on 03.11.2022 in absence of Advocate for the appellants and the matter was adjourned on adjournment application sent by the learned counsel for appellants through his Munshi/Clerk, whereas his examination in chief was conducted on 16.02.2023.
9. The examination-in-chief of the aforementioned material witnesses was admittedly recorded in the absence of the learned counsel for the appellants, who were facing trial for an offence punishable for capital punishment under Section 302, of the Pakistan Penal Code (P.P.C). Instructions contained in the Federal Capital and Sindh Court Criminal Circulars mandates that every criminal case entailing capital punishment should only proceed in the presence of a qualified legal practitioner, either engaged by the accused or appointed at the State's expenses. In these circumstances, the learned counsel for the appellants has rightly contended that the appellants were seriously prejudiced in their right to defence. Reliance in this regard is placed on Purna Chandra Mondal v. The State (1970 PCr.LJ 746), wherein the Court observed as follows:
"The provisions of Legal Remembrancer's Manual, 1960, were made in aid of Section 340 of the Code of Criminal Procedure which confers a right on every accused person brought before a criminal Court to be defended by a lawyer, which is not the same thing as being represented by a lawyer. That right evidently extends to access to the lawyer for private consultations and also affording the latter an adequate opportunity of preparing the case for the defence. A last moment appointment of an Advocate for defending a prisoner accused of capital offence, not only results in a breach of the provision of the 6th paragraph of Chapter XII of the Legal Remembrancer's Manual, 1960 and frustrates the object behind the elaborate provisions of that chapter, such an appointment results also in a denial to the prisoner of the right conferred on him by Section 340 of the Code of Criminal Procedure, 1898.
10. The learned Additional Prosecutor General has not denied that the examination-in-chief of the aforementioned three prosecution witnesses was recorded by the trial court in the absence of the learned counsel for the appellants, thereby prejudicing the appellants in their trial and defence. It was the duty of the trial court, while trying a case carrying capital punishment, to exercise utmost caution and diligence in examining the witnesses. Consequently, a miscarriage of justice has occurred, rendering the proceedings conducted by the learned trial court illegal and incurable under Section 537 of the Cr.P.C., as it vitiated the entire trial. Reliance is placed on Shafique Ahmed alias Shahjee v. The State (PLD 2006 Karachi 377).
11. Furthermore, when confronted with the above omissions and illegalities, the learned Additional Prosecutor General for the State and the complainant were fair enough to concede to a remand of the matter for the re-examination of the aforementioned three prosecution witnesses by the learned trial court, allowing the learned counsel for the appellants an opportunity for cross-examination.
12. In view of the above, the criminal appeal is allowed, and the conviction and sentences awarded to the appellants through the judgment dated 03-10-2023, passed by the learned Additional Sessions Judge-I/MCTC, Umerkot, in Sessions Case No. 87/2021 ( The State v. Ghulam Nabi and another ), arising out of Crime No. 157/2020 under Sections 302, 337-A(i), 337-F(i), and 34 of the Pakistan Penal Code (P.P.C), registered at Police Station Kunri, are set aside. The matter is remanded to the trial court with directions to recall PW-01/Medical Officer Gomoon Mal, PW-02/Tapedar, Kalyan, and PW-08/PC Muhammad Shahid to re-examine them in presence of the appellant's counsel with opportunity to cross examine them and to decide the case in accordance with the law within two months from the date of receiving a copy of this judgment. As indicated in the judgment, appellant Abdul Latif was on bail at the time of conviction. Therefore, subject to furnishing the required surety, as determined by the trial court in light of the changed circumstances, the benefit of his release on bail shall be extended to ensure his appearance for the conclusion of the trial.
JK/G-18/Sindh Appeal allowed.