SALAHUDDIN PANHW AR, J. Appellant has assailed judgment dated 5th March, 2018 passed in S.C.
No.267/2012 arising out of FIR No.24/201 1, under sections 302, 353, 324, 427, 34, P.P.C., Police Station CID, Karachi.
2. At the outset learned counsel for appe llant contends that this is a case of erroneous observations; charge was framed in murder case on 06.05.201 1 wherein accused pleaded not guilty , such plea was recorded and signed, thereafter official witnesses were examined. During trial appellant moved application that he is confined in jail since seven years, he is from KPK, therefore sentence undergone may be considered and he may be released. On such application, ADPP filed statement for closing of side on the plea that since accused has pleaded guilty therefore there is no need to examine the witnesses hence statement under section 342, Cr.P.C. was recorded wherein accused admitted the question with regard to commission of offence and he was convicted and sentenced for five years with fine of Rs.50,000/-. According to counsel though appellant was charged under section 302, P.P.C. on account of murder , conviction is awarded under sections 353, 324, 427, P.P.C.. It is further contended that conviction is illegal, eye-witnesses were not traceable hence trial court was competent to defer the trial as sine die.
On a query that why appellant has preferred to file this appeal when admittedly in a murder case he has succeeded to get conviction as already undergone, learned counsel replied that since accused is convicted for life in another case of narcotic he has preferred appeal but due to conviction of this case he is not able to get benefit in that appeal.
3. Learned DPG contends that since this is a murder case and required to be adjudicated properly . In case witnesses are not appearing, proper course was to take all coercive measure and then adjourn the matter for sine die.
4. What has been argued and acknowledged has surprised me seriously and has left me with a question that how can one, (Judge) holding the power to decide fate of a dead victim as well accused (living person), can be so negligent that to bring such a picture of a Criminal Administration of Justice?. The question, so surfaced, has forced me to first say that: the Courts are not the mechanical-places so as to reduce the numbers but are always meant to do justice (balance of scale) on things, brought before them. The Islam as well all the civilized cultures on earth are unanimous that no society can survive without justice. It is the concept of justice (balancing of scales in saying a wrong a wrong and right a right ). In the case of Shabbir Hussain v. Registrar , Lahore High Court (PLD 2004 SC 191) while affirming importance of a 'judge' with reference to Holy Quran it was observed as:- "5. The contentions raised by the learned counsel for the parties have received our anxious consideration.
However , before proceeding to determine the question involved in these appeals we deem it necessary to observe that although the civil servants are bound to be honest having unblemished integrity , the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal position which justice occupies in Islam according to the following verse of the Holy Qur'an:- " 'O' You who believe, the maintainers of justice, bearers of witness for Allah's sake though it may be against your own selves or your parents or near relati ons, be he rich or poor, Allah is most competent to deal with them both, therefore, do not follow your low desires least you deviate, and if you swerve or turn aside then Allah is aware of what you do."
(Surah 4, V erse 135).
Islam also enjoins that those who perform the functions of Judges must not only possess profound knowledge and deep insight but also be men of integrity and capable of holding the scales of justice even under all circumstances. .."
Capability of holding' the scale of justice is not meant to possess a degree/certificate but awareness of law and procedure without which the scale of justice cannot be believed to be held. In the case of Government of Sindh v.
Saiful Haq Hashmi (1993 SCMR 956 ) the duty of a 'judge' has further been emphasis as:- "11-A. It is well settled that as long as the jurisdiction is exercised in good faith free from ulterior motives, contamination or taint of dishonesty or corruption a judicial officer cannot render himself liable to disciplinary action for mistakes committed in the course of decisions made by him honestly and bona fide. ............ A Judge has delicate position of vulnerable nature on whom eyes from both sides are set. According to well settled principle, justice is not only to be done but it should be seen to be done. It should be seen to be done by the conduct of the Judge, the manner he entertains, proceeds and hands over the written decision. Each and every step in a judicial proceeding should demonstrate the integrity , honesty , bona fides and impartiality of the Judge. As observed in Muhammad Hussain Kazi v. Government of the Punjab PLD 1983 SC 187, 'the propriety or impropriety of conduct had to be determined by reference to the officer, his work and duties and the service discipline governing him. In case of a judicial officer the hierarchical arrangement of Courts, the handing down of written judgments and the collection of precedents in law, all control and guide his functioning.' The Courts presided over by Judges are institutions which command respect, faith and confidence for implementation of rule of law, justice and equity . If at any stage justice is tainted, tarnished or contaminated with dishonesty and corruption or abhors the judicial conscience, the blame squarely lies upon the Judge for behaving in a manner unbecoming of a Judge or a gentleman. Purity of the fountain of justice has to be maintained and protected zealously from corruption, contamination and pollution which distorts its angelic and divine face."
I would further add that a 'Judge ' is entrusted to perform divine duty but with earthly wisdom hence 'Adl' may not be expected from him but he is not supposed to be guilty of miscarriage of justice (improper balancing of scale by putting things in each arm of scale, per dictate of law and procedure) nor any negligence from him is expected.
One may err in placing things in proper arm of the scale thereby erring in wrong conclusion/decision but should never be guilty of 'negligence' in following the dictates of settled law and procedure because negligence of a judge shall be a precursor of doom and disaster for the society , so was held in the case of Imran Ahmed Khan Niazi v . Mian Muhammad Nawaz Sharif (PLD 2017 SC 265 ) as: "19. ... Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice. Any departure from such course, however well- intentioned it may be, would be a precursor of doom and disaster for the society .
The Criminal Administration of Justice, always demands from a Judge (trying a criminal charge) that no 'conviction' can be recorded on a criminal charge unless the decision (balancing) is done, as insisted in the case of Azeem Khan and another v . Mujahid Khan and others (2016 SCMR 274 ), that:- "32. It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable chara cter and legally admissible one.
Similarly , mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused pers on being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In the event the justice would be casualty ."
I shall further add that there had never been any doubt to the legal position that every accused, regardless of charge against him, was/is entitled for an expeditious trial which (expeditious), however , never allows the 'judge' to make departure from mandatory proce dure and to ignore settled principles of law rather invites capacity of the judge to ensure legal disposal of the case by using all available legal courses, provided by the law and procedure themselves. This is so, because a delayed justice is not a justice at all and even may compel the accused to accept what he never did.
5. Having said so, now I would revert to merits of the case. At this juncture it would be conducive to refer the charge which is that:- "That you on or about 26th day of January 2011 about 0130 at Karachi Tool Plaza, Super Highway , Gadap City, you accused along with absconded accused namely Gul Zaman, Sardar and Mst. Gulshan Bibi, being duly armed with TT pistols, have attacked upon the complainant with intention to commit Qatl-i-amd of police party , as a result, HC Syed Yousuf and Muhammad Sabir have received bullets injuries respectively subsequently Muhammad Sabir has been expired and thereby you have committed an offence under sections 324, 302 and 34, P.P.C. within the cognizance of this court.
I further charge you, on the same day, time and place, you accused along with absconded accused being duly armed with TT pistols, by criminal force to deter public servant from discharge of their duties and thereby you have committed an of fence under sections 353 and 34, P .P.C. within the cognizance of this court.
I further charge you, on the same day, time and place, you accused along with absconded accused being duly armed with TT pistols, have damaged the property and thereby you have committed an offence punishable under sections 427 and 34, P.P.C. within the cognizance of this court.
And I hereby direct that you be tried by this court on the above mentioned charge."
From above referral, it is quite clear that the learned trial Court had framed the charge against the accused (appellants) for offences, punishable under sections 324, 302, 34, P.P.C.; 353 and 34, P.P.C.; 427 and 34, P.P.C. hence at all material times the trial Court was required to decide fate of every single charge (offence ) which could, legally , either be in acquittal or conviction from such charge (offence ). Such legal position was/is always clear from plain language of section 367(2) and (4) of Code which are:-
(2) It shall specify , the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced.
(4) If it be a judgment of acquittal it shall state the offence of which the accused is acquitted , and direct that he be set at liberty .
Thus, the above legal position makes it quite clear and obvious that learned trial Court judge, having framed the charge (starting trial for specific offences) for specific offences, was left with no option but to make legal determination of such offence i.e either by recording findings of acquittal or conviction for each offence.
However , available record speaks otherwise. Such reflection from record not only a material illegality but also speaks how learned trial Court deals with matter , involving question of life. It would be convenience to refer Point No.2 of the impugned judgment as under:- "Point No.2: As accused Akhtar Zareen son of Shah Zain voluntarily plead his guilt during recording his statement under section 342, Cr.P.C., however he request for mercy and lenient view, I, therefore, pass sentence under section 265-H(ii), Cr.P.C. for an offence punishable under sections 353/324/427/34, P.P.C. and convict the accused with five years'
R.I. and the accused shall also pay Rs.50,000/- fine and in default of payment of fine the accused shall suffer three months more S.I. The benefit of section 382-B, Cr.P.C. is also extended to accused. The accused is present in judicial custody , he is remanded to jail along with conviction warrant with directions to the jail superintendent to serve out the conviction according to law. The accused Akhtar Zareen son of Shah Zain also convicted in Session Case No.268/2012, FIR No.26/201 1, under section 13-E, Arms Ordinance of Police Station CID, Karachi, therefore both the sentences will run concurrently ."
Conviction and sentence, so awarded by trial court judge as: "..... for an offence punishable under section under sections 353/324/427/34, P.P.C. and convict the accused with five years R.I. and the accused shall also pay Rs.50,000/- fine."
Manner of recording conviction in such fashion, prima facie, is in utter disregard to what has been insisted by section 367(2) of the Code which requires specification of each offence and punishment thereof. However , without prejudice to legal consequences of such an illegality , it is quite obvious that the learned trial Court judge spoke nothing about offence, punishable under section 302, P.P.C., though the accused/appellant was specifically charged and tried for such offence too hence legal presumption shall be nothing but that there came no legal 'disposal' for charged offence of section 302, P.P.C. yet the learned trial Court judge terminated the case by recording the judgment, impugned. Such act or omission, as the case may be, is not worth appreciating nor can legally be approved because all the jointly charged and tried offences are legally required to be determined through one single judgment because the law permits only a 'single' trial of one for an 'offence'. All these are the basic procedural knowledge which, every trial judge, is believed to possess except the author of judgment impugned .
Even in points of determination issue regarding murder , natural or unnatural, was not framed. Without going into question that as to whether it was result of ignorance of such basic procedure or was a result of negligence the prima facie conclusion could be nothing but that writer of impugned judgment is either incompetent or devoid of any judicial knowledge/approach.
6. The above glaring illegality cannot be said to be result of some oversight because while writing a full judgment the author thereof is believed to have carefully gone through all available record else there can be no legal decision/judgment. The learned trial court judge through impugned judgment did attempt to give an impression of having gone through available record carefully but what he proved, stood discussed above. However , such attempt of learned trial Court judge, being relevant, is referred hereunder:- "Point No.1.
"From the perusal of record shows that during course of evidence six witnesses were examined by the prosecution, although the charge was framed in year 2011. Thereafter , this court repeatedly issued summons/ BWs against PWs but remaining PWs were not produced by the prosecution.
However , today case was fixed for further evidence, the accused Akhtar Zareen son of Shah Zaman moved an application, in which he voluntarily pleads his guilt and request to the court for mercy and lenient view .
From the perusal of record shows that accused was arrested on 26.01.201 1, thereafter the documents were supplied to the accused and in year 2011 a formal charge was framed therefore, this court repeatedly issued summons/BWs against PWs and only six witnesses were examined by the prosecution.
As today accused Akhtar Zareen son of Shah Zain voluntarily pleaded his guilt during recording statement of accused required under section 342, Cr.P.C. and even such application was also moved by the accused before court, therefore, looking into the circumstances and in the light of application/admission of accused I hold this point No.1 to be answered in affirmative."
From above, it is quite obvious that learned trial court judge did claim to have sailed through the record; specific reference to framing of 'formal charge' , if be taken as proof of such claim, then it can safely be deduced that learned trial Court judge had active knowledge of fact that of 'trial of accused/appellant' for offence under section 302, P.P.C. yet, as discussed above, there is nothing about legal termination of such offence which, as already defined, is not an irregularity but a prima facie illegality and colourful exercise. If it is believed that learned trial Court Judge did go through the record then failure in responding to charge for offence of murder (section 302, P.P.C.) could be nothing but a deliberate action or knowing omission. Needless to add that leaving an `offence' determined, in disregard of commandm ent of section 367, Cr.P.C., would always be sufficient for setting aside of the impugned conviction and 'retrial' of the case.
7. Without prejudice to above, pertinent to mention that at stage of recording of 342, Cr.P.C. statement if the accused admits evidence, came against him yet the trial Court judge would not be competent to straight away record a 'conviction' rather shall be required to serve a `show-cause notice' thereby making it quite clear and obvious to the accused (person pleading guilt) that as to what sentence/punishment may fall upon him as well the trial Court judge before proceeding on any such plea must satisfy itself that such plea is not result of any coercion or other influence. In the instant case neither the accused/appellant was ever served with such show cause nor the learned trial Court ever made any effort to satisfy itself that whether such an admission is voluntary or otherwise? because it would never satisfy the requirement of Safe Criminal Administration of Justice to use such an evidence as a 'base' to record conviction without first making the maker thereof aware of consequences thereof.
Such failure on part of the learned trial Court judge would always be suf ficient to declare such conviction as illegal.
8. I shall further add that law never binds the trial Courts to record convictions on such pleas rather leaves things open for the trial Court and the trial Courts can competently prefer to try the accused even on such pleas, so is evident from a bare perusal of the sectio n 243 of the Code. However , once an accused denies to a charge and asks for his trial then it is not advisable to record conviction on an application of pleading guilt/admitting allegation during examination of accused under section 342, Cr.P.C. as it would always be hard to attach truthfulness to such subsequent plea nor it alone would be sufficient to deny benefits of doubts, came on surface during trial. Worth to add here that procedure law provides only a single opportunity to accused for `pleading guilt or trial' therefore, any subsequent plea of guilt would not be a 'confession' but would, at the most, fall within meaning of `admission'. Such difference needs to be kept in view by all Criminal Courts. In the case of Muhammad Ismail v.
State (2017 SCMR 713), while dealing with similar question, it has been observed by honourable apex Court at Rel. P-721 as:- "As the above procedure was not adopted, therefore, it was incorrectly construed by the Courts below as confession of the accused. Under the law, it may be treated as an admission of the appellant, however , on the basis of admission alone, accused perso n cannot be awarded a capital punishment because admission , as has been defined by Article 30 of the Qanun-e-Shahadat Order , 1984 , is only a relevant fact and not a proof by itself, as has been envisaged in Article 43 of the Order , 1984, where a proved, voluntary and true confession alone is held to be a proof against the maker therefore, both the Courts below have fallen in error by treating this halfway admission to be a confession of guilt on the part of the appellant.
13. ......Therefore, it is held that the admission of the appellant cannot be a substitute for a true and voluntary confession, recorded after adopting a due process of law and it cannot be made the sole basis of conviction on a capital charge."
From above, it is quite obvious that since the learned trial Court judge gave not a single reason for conviction except that of admission of accused which, as discussed, was never sufficient to record the conviction or to avoid the legal obligation of the trial Court to appreciate all available material while evaluating the evidence for a judgment of full-dress trial. In the case of Muhammad Ismail supra it was also observed as:- "12. True, that under section 265-E, Cr.P.C., the Trial Court in a session case, has a discretion to record the plea of the accused and if he pleads guilty to the charge, it may convict him in its discretion. Nevertheless, it is also provided in section 265-F , Cr.P.C. that if the Trial Court does not convict him on his plea of guilt, it shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. This discretion is to be exercised with extra care and caution, and ordinarily on such admission, awarding capital sentence of death shall be avoided and to prove the guilt of an accused, evidence of the complainant or the prosecution has to be recorded, in the interest of safe administration of justice".
9. There is another surprising aspect which requires to be added too. The perusal of the findings on point-1 shows that accused (appellant) allegedly made an application for pleading guilt (admitting guilt); which resulted in closure of prosecution side and conviction upon him (accused), however , perusal of the record shows that diary of relevant date i.e 14.02.2018 reads as:- "Case called. Accused Akhtar Zareen is produced in custody by jail authority in the court at judicial complex. ADPP for the State is present. DC is also present. Process returned un-served. No. BW is present. Put off to 05.03.2018 for evidence. Accused is remanded to judicial custody with direction to be produced on the next date of hearing.
Process re-issued and handed over to process server ."
The diary , meant to reflect complete proceedings of a particular date, does not speak about such application of the accused nor it, ever, was made part of the record of proceedings by marking/exhibiting. It, however , was attached with misc part of proceedings. The perusal whereof shows that same was neither identified by his counsel nor was supported by any affidavit so as to safely accept the same as voluntarily one. The diary of next date of hearing. viz. 05.03.2018 shows that accused was present. PWs were present : ADPP filed statement for closing of the side.
Statement under section 342, Cr.P.C. was recorded. Final arguments heard. Judg ment passed and announced in open court. Such diary even reflects nothing about application of the accused (appellant) which, otherwise, was used for all subsequent acts i.e `avoiding process for remaining witnesses; closing prosecution side and even a base for conviction. Such manner , being in complete negation to settled procedural law, cannot be approved rather was always impliedly prohibited. When, per such diary , the witnesses were in attendance then it was always advisable to have examine d the available witnesses rather than disposing the criminal case on claimed `admission' . It is important to add that when admittedly the witnesses were in attendance on relevant date then it was never permissible for the prosecutor to have closed the prosecution side merely while referring to so called statement of admission of accused because provision of Sectio n 265-F , no where , provides such an authority to close prosecution side except when prosecutor finds to have brought all. The Prosecutor , needless to add, should prove to have discharged their duties, as per commandments of law and procedure. I may further add that even an act of closing of prosecution side would never relieve the Court to attempt to achieve the ultimate objective i.e avoid failure of ends of justice (540, Cr.P.C.). Prima facie , the learned trial Court judge departed from mandatory procedural requirements which legally he was not competent to do. In the case of Muhammad Ismail supra, it was also held as:- "13. It is a bedrock principle of law that, once a Statute or rule directs that a particular act must be performed and shall be construed in a particular way then, acting contrary to that is impliedly prohibited. That means, doing of something contrary to the requirements of law and rules, is impliedly prohibited."
Be that as it may, if the learned trial Court judge was of the view that 'admission' of the accused was sufficient to record conviction even then it was obligatory upon him to have recorded punishment for each 'offence' because application does not reflect it to be for 'part-offence' , therefore, it was never within competence of the learned trial Court judge to have ignored/avoided punishment for charged offence of murder which is not less than one, provided by law itself. In the case of Muhammad Jumman v . State 2018 SCMR 318 it is observed as:- "7. ... Inflicting conviction and imposing sentence is not a mechanical exercise but it is onerous responsibility to inflict, fair, reasonable and adequate sentence, commensurate with gravity and or severity of crime, looking at the motive, attending and or mitigating circum stances that provoked or instigated commission of crime and it involves conscious application of mind. No mathematical formula, standard or yard stick could be prescribed or set out to inflict conviction and sentence, such factors vary from case to case and while undertaking such exercise Court must keep in sight provisions contained in Chapters-II and IV of the P .P.C."
"10. As noted above, through impugned order , appellate court while maintaining the conviction under section 302(b)
P.P.0 modified the sentence to "already under gone", without application of mind and in a mechanical fashion, as noted above either of the two legal senten ce for an offence under section 302(b), P.P.C, is provided viz. "death" OR "imprisonment for life" and nothing in between, shorter or greater . In case the Appellate Court, looking at the attending and mitigating circumstances was convinced that the sentence warded is severe and or that mitigating and or other attending circumstances existed or that the case is covered by any of the legal exception or that case of the respondent fell under clause (c) to section 302, P.P.C. and also beyond the pale of proviso thereto, it was only then Court could have exercised the discretion to award any term of sentence or punishment "with imprisonment of either description for term which my extend to twenty five years. ...."
Here, I would be safe in adding that inflicting conviction and imposing sentence is net a mechanical exercise but onerous responsibility which shall continue even in matters of 'admission of guilt/pleading guilt' because right of an appeal, otherwise with-held in matter of pleading guilt, is not applicable when it comes to extent of sentence and legality thereof. Besides, ADPP closed side in a murder case, because of application filed by accused, even state failed to file appeal/revision against impugned judgment which shows that besides judge, ADPP was also in league to favour the accused and apparently all were on same page to undergo the appellant though law and record, both, were never justifying such move.
10. All the examined angles, leave me with no option but to set aside the illegally recorded conviction (judgment) and to remand the same for trial of the case from the stage as it was on 05.03.2018. Trial court shall ensure to conclusion of trial within six months.
11. With regard to plea of sine die, apparently this case is not falling within that category as eye-witnesses who are police of ficials have been examined, medical evidence is available with prosecution and case can be heard.
12. In view of above, suffice to say that impugned judgment is not only shocking but same has sufficiently given the picture of its author as well his competence, legal knowledge and attention in deciding criminal matters. The Criminal Administration of Justice always asks for firm hands and shaky hands should have no room in such administration. The trial judge (Mr. Sikander Ameer Pahore) from his cond uct has proved to be either incompetent/negligent or that impugned judgment is result of some hidden motive, hence office shall place this matter before competent authority for departmental proceedings. As well as copy shall be communicated to P.G.
Sindh for action against the then ADPP .