By this judgment I propose to dispose of the above said three criminal appeals as the same arise out of the single judgment dated 28th July, 2000, passed by (Mrs. Naseem Mansoor) VIth Additional Sessions Judge, Karachi East in Sessions Case No. 946 of 1993 (State v. Ellahi Bux and others), whereby the appellants were convicted. The appellant Chanasar was sentenced to imprisonment for life, appellant Ellahi Bux was sentenced to imprisonment for five years whereas appellant Jumman was awarded sentence of three years imprisonment. However,. they were granted benefit admissible under Section 382-B, Cr.P.C.
Briefly, the prosecution case, as per the contents of F.I.R. lodged by complainant Shaban, are that on 24-9-1993 at about 1830 hours on hearing commotion, he came out of his house and saw appellants Chanesar, Jumman and Ellahi Bux as well as co-accused Wazir throwing the house- hold articles of Hazaroo Khan out of his house, while Manjho and Hazaroo Khan were standing nearby Wazir and Chanesar were armed with guns while Jumman and Ellahi Bux were carrying hatches. Hazaroo and Majhoo were restraining the accused persons not to throw the articles as they had settled the dispute in the morning.. Suddenly, Wazir fired which hit at the left side of complainant's shoulder, Chanesar fired three shots which hit at the right thigh of Misri Khan, while Ellahi Bux caused hatchet blow on the left hand palm of the complainant. The injured were taken to hospital and on the way Misri. Khan died.
The contents of the said report were incorporated in 154, Cr.P.C. Book at Police Station Malir Extension vide Crime No. 140 of 1993. After completing the investigation, accused persons were sent up to face trial.
3. A formal charge was framed by the trial Court against the appellants Ellahi Bux and Juman to which they pleaded not guilty and claimed to be tried. On the arrest of absconding accused Chanesar, an amended charge was framed against all the accused persons to which also they pleaded not guilty and claimed to be tried. However, co-accused Wazir could not be arrested and proceedings under Sections 87/88, Cr.P.C. were initiated against him.
4. The prosecution examined P.W.1 Nabi Shah alias Shaman Shah (Exh.6), who produced memo. of inspection of dead body and inquest report, P.W.2 Walari (Exh.7) who produced memo. of recovery of crime weapons, P.W.3 Muhammad Hassan (Exh.8), P.W.4 Shaban (Exh.9) who produced the F.I.R., P.W.5 Gul Muhammad (Exh.10) who produced memo. of inspection of place of Wardat, P.W.6 Raja Muhammad Ilyas (Exh.19) who produced post-mortem report, Chemical Examiner's report etc., P.W.7 Dr. Ghulam Hussain (Exh.28) who produced medical certificate. Vide statements (Exhs.17 and 18) P.Ws. Sawal Khan, Hazaroo and Haji Pathan were given up. Statement of process-server Muhammad Taj was recorded as Exh.30 who deposed that remaining witnesses were not traceable. Thereafter, prosecution closed its side vide statement, dated 26-1-2000 (Exh.34).
5. Statements of accused persons under Section 342, Cr.P.C. were recorded vide Exhs.35, 36 and 37 wherein they claimed to be innocent and stated that complainant had falsely involved them in the case. However, neither they examined themselves on oath nor produced any witness in their defence.
6. On the basis of evidence brought on record, the appellants were found guilty for the alleged offences and were convicted, and sentenced, as mentioned above, hence these appeals.
7. Messrs Ali Gohar Soomro and Mahmood A. Qureshi, Advocates appeared for the appellants, while Mr. Muneer Ahmed Khawaja, Advocate represented the State.
8. It is contended on behalf of the appellants that the trial was vitiated due to infirmities and irregularities. The findings recorded by trial Court are contrary to the evidence available on record, as such the impugned judgment is not sustainable in law, there are glaring contradictions in the statements of the prosecution witnesses and that the ocular evidence and the medical evidence are not in conformity with each other
9. Learned State counsel at the very outset submitted that he was unable to support the impugned judgment as the evidence available on the record was full of contradictions and the judgment itself was suffering from inherent detects and was, therefore, unsustainable.
10.The arguments advanced at the bar have been considered and the evidence adduced on the record has been scrutinized.
11. It appears that trial Court proceeded with the case in a most cursory, irresponsible rather negligent manner. The proceedings were marred by inherent defects and illegalities. When initially the trial commenced, appellant Chanesar was not before the Court, as he was absconding. Before the appellant Chanesar could be arrested and sent up, prosecution evidence was recorded. The scrutiny of record reveals that the examination-in-chief of P.Ws. Nabi Shah, Walari and Muhammad Hassan was recorded on 25-5-1995 while the examinationin-chief of P.Ws. Shaban and Gul Muhammad was recorded on 5-9-1995. After arrest of the absconding accused, namely, appellant Chanesar although an amended charge was framed on 28-11-1998 but the evidence was not recorded afresh as required under Section 353, Cr.P.C. which provides that the recording of evidence is to take place in presence of the accused. It is also violative of Article 133 of Qanun-e- Shahadat Order, 1984. Such gross irregularity is absolutely not curable under Section 537, Cr.P.C.
The judgment and the conviction recorded thereunder is vitiated on this score alone.
12.Another glaring irregularity which amounts to grave injustice committed by the trial Court is that accused Ellahi Bux was not afforded. proper opportunity to cross-examine the witnesses which is legal right of every accused, as such he was not allowed to defend himself in a proper way.
Perusal of the record shows that on 3-9-1995 Mr. Amanullah, Advocate for accused Ellahi Bux moved an application for adjournment on the ground that his wife had given birth to a child, hence he was unable to proceed with the case as he was to go to hospital. Such application was dismissed, Vakalatnama of the counsel was cancelled and in his place another Advocate was appointed to conduct the case of accused Ellahi Bux without his consent to which he objected and stated that he had no trust in the said Advocate. In such circumstances, the trial Court, in all fairness, ought to have granted time to the accused to make alternate arrangement, and to have the assistance of a counsel of his choice, as he was facing a charge involving capital punishment.
In any case, the appointment of an Advocate in an arbitrary manner, that too, in whom the accused had no trust and then hastefully proceeding to close his side without affording least opportunity to defend was absolutely illegal, most perverse, leaving no room for condoning the same. Yet another shocking act of gross illegality made by the trial Judge was that when the accused Ellahi Bux moved an application that his Advocate Mr. Amanullah be allowed to conduct his case, he was put in the witness-box and his statement was recorded on oath and his application was dismissed. It is not understandable under what provisions of law, such exercise was undertaken. This manifestly and abundantly demonstrates lack of legal knowledge on the part of trial Judge, (Mr. Sirajuddin Qureshi), the then VI Additional Sessions Judge, Karachi East rendering the Judge incapable of conducting trial, at least in murder cases, as it amounts to murder of a trial.
13. On merits also there are material infirmities/contradictions in the depositions of the prosecution witnesses and even in the impugned judgment the facts have not been stated truly and properly. In the judgment it is stated that P.W. Muhammad Hassan deposed that he saw accused Jumman inflicting hatchet injury to injured and the deceased, whereas from the perusal of the deposition of the said witness it reveals that he'as stated in categorical terms that he had not seen the accused Jumman inflicting hatchet injury. It is alleged that accused Ellahi Bux caused, hatchet injuries to P.W. Shaban but no medical certificate regarding, such injuries has been brought on record. P.W.1 Nabi Shah does not claim to have seen the incident but he stated that he reached the spot after the incident. In his cross-examination he has admitted that the contents of memo. of inspection of dead body and that of the inquest report to which he has acted as Mashir were not read over to him. He has further admitted that the police obtained his signature on a plain paper and besides him one other person including P.W. Walari also signed on blank papers. P.W.
Muhammad Hassan has improved fire prosecution case, inasmuch as he deposed that an infant aged six months was also thrown away by the accused who, died at the spot and that his mother also received injuries. Such facts, at all, do not find mention in the entire prosecution case.
Statement of this witness was recorded in the absence of accused Chanesar. During cross- examination he also did not identify accused Chanesar who was present in Court. Likewise, P.Ws.
Shaban and Gul Muhammad also did not identify accused Chanesar who was available in Court.
14. So far recovery is concerned, it is alleged that a single barrel gun was recovered from the house of accused Chanesar. Such recovery was made in his absence and neither the gun nor the empty cartridges were sealed. P.W. Walari who acted as Mashir of recovery has deposed that the hatchets were already secured before his arrival and that the cartridges were not sealed and police obtained his signature on blank paper. He further admitted that there was no blood-stain on hatchets at the time of recovery.
15.The Investigating Officer, Raja Muhammad Ilyas in his statement has admitted that before recording the statement of the complainant who is also injured, he had recorded the statements of other witnesses and had completed other formalities. It transpires that the case was registered after holding the investigation which is not permissible in law. Furthermore, the ocular testimony is also in conflict with the medical evidence, inasmuch as P.W; Muhammad Hassan has deposed that accused Ellahi Bux also caused hatchet injuries to Misri while according to medical evidence there is no hatchet injury on the person of deceased Misri.
16.The cumulative effect of all the above said defects/infirmities is that they have put serious dents in the prosecution case, rendering the conviction and sentence awarded to the appellants illegal, and unsustainable. Accordingly the impugned judgment is set aside and the appellants are acquitted. Appellant Chanesar is in custody. He shall be released forthwith, if not required in any other case. Appellants Jumman and Ellahi Bux are on bail. Their bail bonds stand discharged.
The appeals were allowed vide short orders passed on 22-2-2006. Above are the reasons in support thereof.
Let a copy of this judgment be sent to M.I.T. with reference to the observations made in Paras Nos. 11 and 12 of this judgment.