NAIMATULLAH PHULPOTO, J. Appellants Danish, Jahanzaib, Waseem, and acquitted accused Mst.
Nayab and Mst. Tahreem were tried by learned Additional Sessions Judge, Khipro in Sessions Case No.48 of 2015, emanating from Crime No.181/2010 of Police Station Khipro; whereas juvenile accused/appellants Suhail and acquitted accused Ms. Farasat were also tried by the same trial Judge in Sessions Case No.49 of 2015 in same crime for offence under sections 354, 376(2), 337-J, 342, 506(2), P.P.C. read with section 12(2), PEC Ordinance, 2007 After regular trial, the learned trial Court vide its judgment dated 24.05.2019, convicted and sentenced the appellants Danish, Jahanzaib and Waseem in the following manner:- "1. Accused Danish, Jahanzaib and Waseem were convicted for offence under section 376(2), P.P.C. and sentenced to death as Ta'zir. They were also directed to pay compensation of Rs.200,000/- (Two lacs only) each to be paid to the victim Mst. Zainab as provided under section 544-A, Cr.P.C.
They were further directed to pay fine of Rs 50,000/-(Fifty thousand only) each. In case of non- payment of compensation and fine, they were ordered to suffer S.I for one year more.
2. They were also convicted under section 354, P.P.C. and sentenced to suffer R.I for two years as Ta'zir. They were also directed to pay fine of Rs.20,000/- (Twenty thousand only) each. In case of non-payment of fine, they were ordered to suffer S.I for four months more.
3. They were further convicted under section 342, P.P.C. and sentenced to suffer R.I for one year as Ta'zir. They were also diredted to pay fine of Rs.20,000/- (Twenty thousand only) each In case of non-payment of fine, they were ordered to suffer S.I for two months more.
4. They were also convicted under section 506/2, P.P.C. and sentenced to suffer R.I for two years as Ta'zir. They were also directed to pay fine of Rs.20,000/- (Twenty thousand only) eadh. In case of non-payment of fine, they were ordered to suffer S.I for three months more.
5. All three accused were also convicted under section 265-H(ii), Cr.P.C. for offence of 13(2) of Prevention of Electronic Crimes Ordinance, 2007 to suffer R.I for two months. They are also directed to pay fine of Rs.10,000/- (Ten thousand only) each. In case of non-payment of fine, they Were ordered to suffer S.I for 15 days more.
2. Through said impugned judgment, juvenile offender Suhail was also convicted and sentenced in the following manner:- "1. Juvenile offender Suhail was convicted for offence under section 376(2), P.P.C. and sentenced to life imprisonment as Ta'zir. He was directed to pay compensation of Rs.200,000/- (Two Lacs only) to be paid to, victim Mst. Zainab as provided under section 544-A, Cr.P.C. He was also directed to pay fine of Rs.50,000/-, in case of non-payment of compensation and fine, he was ordered to suffer S.I for six months more.
2. He was also convicted for offence under section 354, P.P.C. to suffer R.I for Two years as Ta'zir. He was also directed to pay fine of Rs.20,000/- (Twenty thousand only). In case of non-payment of fine, he, was ordered to suffer S.I for four months more.
3. He was further convicted for offence under section 342, P.P.C. to suffer R.I for one year as Ta'zir. He was also directed to pay fine of Rs.20,000/- (Twenty thousand only). In case of non-payment of fine, he was ordered to suffer S.I for two months more.
4. He was also convicted for offence under section 506/2, P.P.C. to suffer R.I for two years as Ta'zir.
He was also directed to pay fine of Rs.20,000/- (Twenty thousand only). In case of non-payment of fine, he was ordered to suffer S.I for three months more.
5. Further he was convicted for offence of 13/2 of Prevention of Electronic Crimes Ordinance, 2007 to suffer R.I for two months as Ta'zir. He was also directed to pay fine of Rs.10,000/- (Ten thousand only). In case of non-payment of fine, he was ordered to suffer S.I for 15 days more."
3. Death sentence awarded to appellants Danish, Jahanzaib and Waseem was subject to confirmation by this Court and the trial Court sent confirmation reference to this Court, as required under section 374, Cr.P.C. Whereas co-accused Mst. Nayab, Mst. Tahreem and juvenile co-accused Ms. Farasat were acquitted of the charges.
4. Appellant Danish filed Criminal Appeal No. D-82 of 2019 against his death sentence and other sentences. Accused/Appellants Jahanzaib and Waseem filed Criminal Appeal No. D-87 of 2019 against their death sentences and other sentences separately; whereas juvenile offender Suhail had filed Criminal Appeal No. S-116 of 2019 against his conviction and sentences.
5. By this single judgment, we intend to decide the aforementioned appeals as well as reference of death sentence awarded to accused/appellants together, as the facts in all the appeals and evidence arise out of same incident/crime.
6. Brief facts of prosecution case leading to filing of all these appeals, as mentioned by the trial Court in the impugned judgment dated 24.05.2019, are as under:- "Complainant Dr. Muhammad Amin lodged FIR on 04-10-2010 stating therein that his niece Mst.
Zainab daughter of Lal Muhammad who is studying in VIllth Class in Government Girls High School Khipro, where her friend Mst. Farasat daughter of Khalid, a student of same School, would occasionally go to her house. His niece Mst. Zainab went to school on 28-09-2010 early in morning but did not return therefore such search was conducted by the family but to no avail. After two days at about 02:30 a.m., night time there was knock at the door of their house and the complainant along with his cousins came out and found his niece Mst. Zainab lying in un- conscious condition at the doorstep. After receiving medical treatment, she regained tier senses and narrated that on her return from school, her friend Mst. Farasat took her to her house where her two sisters Nayab and Tahreem served her sweet at about 1430 hours. The brother of her friend namely Danish and his three friends namely Jahanzaib, Waseem and Suhail were there. After a little while Farasat, Nayab and Tahreem left the room and she felt partially un-conscious. Accused
(1) Danish son of Khalid Qaimkhani, (2) Jahanzaib son of Alamdin and (3) Waseem son of Liaqat armed with pistols and (4) Suhail Qaimkhani having a dagger in his hand came inside the room.
Danish forcibly removed her clothes and put her down in the room and committed Zina with her.
Then the other accused Jahanzaib, Waseem and Suhail took turns and committed Zina with her and she became un-conscious. For two days she remained confined in that room where Zina was committed with her continuously. All the accused have recorded movie of Zina through mobile set and she remained unconscious. At the same time, they have also issued threats to her to the effect that if she discloses the above fact to any person, she will be killed. Thereafter all the four accused put her in a car and dropped her outside her house. On narration of such fact from his niece Mst.
Zainab the complainant consulted with his relatives who advised him to lodge FIR, hence this FIR."
7. After usual investigation police submitted challan against accused under the above referred sections.
8. At trial, after receipt of medical report of accused Suhail and Ms. Farasa, their case was bifurcated/separated from the case of adult co-accused Under section 5 of Juvenile Justice System Ordinance, 2000.
9. Thereafter, trial Court framed charge against the present accused/appellants Danish, Jahanzaib, Waseem, Mst. Nayab and Mst. Tehreem in Sessions Case No.48/2015 at Ex.5, to which they pleaded not guilty and claimed to be tried. A separate charge was also framed against juvenile accused Suhail and Ms. Farasat in Sessions Case No.49/2015 at Ex 3 to which they also did not plead-guilty and claimed trial. Hence the matter went up for trial.
10. In order to bring home the charges, prosecution examined as many as 14 witnesses. On conclusion of trial, the statements of all accused/appellants were recorded under section 342, 'Cr.P.C. wherein they had denied the prosecution allegation and claimed their false implication.
After hearing the learned counsel for the parties and assessment of the evidence available on record, learned trial court had held that prosecution has succeeded in establishing the charges 'brought against appellants beyond reasonable doubt, and vide judgment dated 24.05.2019 convicted and sentenced the appellants as stated above. However, lady accused Ms. Farasat, Mst.
Nayab and Mst. Tehreem were acquitted of the charges as mentioned above. Appellants including juvenile appellant Suhail, who were convicted by the trial Court, have challenged the conviction and sentences recorded against them by the trial Court by filing the aforementioned, appeals.
11. We have heard the learned counsel for the parties and perused the entire evidence available on record. Learned counsel for the appellants at the very outset, submitted that trial Court while conducting the trial has committed multiple following illegalities, which were not curable under the law. Therefore, prayed that the case may be remanded back to the trial Court for retrial:- 1.Trial Court framed defective charge, as material particulars/ ingredients were not mentioned in the same, which caused serious prejudice to accused.
2.That juvenile offender Suhail was tried with adult accused namely Danish, Jahanzaib and Waseem. According to learned counsel for the appellants, as mandated by section 5 of the Juvenile Justice System Ordinance, 2000, no child can be charged or tried together with an adult.
Learned counsel for the appellants while referring to the depositions of the prosecution witnesses recorded in Sessions Case No.48 of 2015, has stated that evidence of all the said witnesses including the complainant Muhammad Amin have also been copied/pasted in Sessions Case No.49 of 2015 while trying with the case of juvenile offender Suhail. It is further submitted that in fact deposition of all prosecution witnesses should have been recorded in both the cases separately and the case of juvenile offenders should have been tried and decided separately under the provisions of section 5 of Juvenile Justice System Ordinance, 2000. In support of his contentions. he relied upon the judgment of the Federal Shariat Court passed in the case of Muhammad Rafique and 3 others v. The State (2005 PCr.LJ 1083).
3. That while recording the statements of the accused/appellants 342, Cr.P.C, the trial Court had not put all the incriminating pieces of evidence brought on record to respond and hence violated the mandatory provisions of the Code of Criminal Procedure, 1898, therefore, the trial conducted stands vitiated and is of no legal consequence. Reliance is placed on the case of Muhammad Saddique v. The State (2018 SCMR 71).
12. As regard the first point raised by learned counsel for the appellants is concerned, record reflects that the learned Additional Sessions Judge, Khipro had framed charge in a vague manner, as the necessary ingredients/particulars of offences with which accused are convicted were not mentioned in the charge(s) at 'Ex-5 and Ex-3 respectively. Object of framing of charge is to ensure that accused have sufficient notice of nature of accusation with which they are charged. In the present case while framing the charge, all the material particulars as to the time, place and specific name of the offence, the manner in which the offence was committed, have not been mentioned specifically and particulars of the accused to afford them opportunity to explain the matter with which they are charged. Needless to mention that charge being foundation of the trial, legislature has provided an elaborate procedure for framing of the charge. Rationale is that accused should know the exact nature of the accusation made against him so that he could give a proper reply and should not at later stage come with a plea of being misled of prejudice in his defence.
13. In the view of above discussion we hold that charge was defective. Prejudice has been caused to present accused/appellants. Rightly reliance has been placed upon the case of S.A.K Rehmani v. The State (2005 SCMR 364), wherein it was held as under:-
21. There is no cavil with the proposition that the charge must allege all facts which are essential factors of the offence in question." AIR 1936 Nag. 275, 38 Cri.L. Jour 380, 1897 Rat. 921, 16 Suthj., WR (CO 53, 12 Cri. L. Jour 483 (Lah.), 3 Born. HCR (App. 1), but no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon circumstances of each case. AIR 1925 Ca1.603, 26 Cri, L. Jour 849, 14 Suth W.R. (Cr.) 13, AIR 1933 Cal. 676, 34 Cri.L. Jour 1219). It would suffice to observe that "charge must contain all facts and circumstances which are essential ingredients of the offence with which the accused is charged" AIR 1936 All 275, 38 Cri. L Jour 380, 1897 Rat 921, 12 Cri. L Jour 483, it must be kept in view that "omissions in a charge cannot be regarded as material unless in terms of S. 225 it is shown by the accused that he has in fact been misled by such omissions or that there has been a failure of justice as a P result of such omissions.
Where the accused is not misled, a defect in the charge is not material. Where the accused is prejudiced, the defect is material." PLD 1950 Pesh. 6, AIR 1956 SC 575, 1956 SCR 483, 1956 Cri. L. Jour 1116, AIR 1952 Tray Co 11, ILR 1951 Tray Co.254, 1952 Cri. L. Jour 157, AIR 1956 SC 469, 1956 SCR 206, ILR 1956 Cut 409, 1956 Cri. L. Jour 831, AIR 1950 All. 167, ILR 1950 All. 1256, 51 Cri. L. Jour 571."
14. As regard the point No.2 raised by the learned counsel for the appellants is concerned, record also reflects that the trial Court recorded evidence of P.Ws. namely Muhammad Amin (Complainant), Mst. Jan Bibi, Dr. Khuda Bux, Dr. Muhammad Ismail, ASI Miandad, ASI Ghulam Rasool, Muhammad Khan, Muhammad Sharif, WMO/Dr.. Kanta, SIP Hussain Bux, Ghulam Mustafa, Victim Mst. Zainab, Ali Bahadur and Judicial Magistrate Muhammad Sohail in Sessions Case No.48 of 2015 and same evidence was copied and pasted on record during trial of the juvenile offenders in Sessions Case No.49 of 2015. Rightly it has been argued by the learned counsel for the appellants that evidence at the trial of both set of the accused should have been recorded separately under the provisions of Juvenile Justice System Ordinance, 2000, for which a procedure has been provided but it was not followed as such the trial Court has violated the mandatory provisions of the Ordinance ibid. Therefore, the trial conducted by Additional Sessions Judge, Khipro, stands vitiated and of no legal consequence. Reliance is rightly placed on the case of Azad Khan and another v. The State (2004 YLR 1076), wherein it was held as under:-
6. We have given due consideration to the arguments and have minutely examined the statements of three witnesses recorded in both the cases. They are P.W.1 ASI, Mehar Ali Shah, Mashir, P.W.2, SHO, Muhammad Aslam, complainant, and P.W.3 Line Officer Muneer Ahmed, Investigating Officer. We find that the said three witnesses are common in both the cases. Their statements were recorded on the one and same date in both the cases. The examination of the statements reveals that examination-in-chief, cross-examination, paragraphs, sentences, construction and placement of each sentences and words of each sentence are same, (except opening sentence and one word in 15th line of the deposition of P.W.2) which is not possible when the statements of same witnesses are recorded on the same date but at different times. Therefore, it is clear that after recording the statements of witnesses in one case, the copies of the depositions of the said witnesses were prepared and placed in the record of other case. The said procedure is in violation of provisions of section 353, Cr.P.C. and Articles 70 and 71 of the Qanun-e- Shahadat Order, 1984. From the said procedure, the trial Court, in fact has read the evidence of one case in other case which is not permissible under the law. The said procedure is highly objectionable and has no sanctity of law."
15. As regard to point No.3 that all the incriminating pieces of evidence were not put to accused in their statements under section 342, Cr.P.C, learned counsel for the appellants and the learned A.P.G are in agreement that all the pieces of the evidence were not put to the accused/appellants during their examination under section 342, Cr.P.C, but trial Court based conviction upon those incriminating pieces of evidence. Omission of trial Court to draw attention of accused persons to such circumstances used against them was prejudice to accused. Law is very settled that each and every piece of evidence, not put to accused during his examination under section 342, Cr.P.C. could not be used against him for maintaining the conviction and sentence, as held in the latest judgment of Honourable Supreme Court of Pakistan passed in Criminal Appeal No.77 of 2020 [Jan Muhammad v. The State] dated 04.03.2021. Relevant portions are reproduced as under:- "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 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.
6. For the foregoing, the instant criminal appeal is allowed. The impugned judgments of the learned High Court and that of the learned trial Court are set aside. Resultantly, the conviction and sentence of the appellant is also set aside. He shall be treated as an under-trial prisoner. The learned trial Court shall record the statement of appellant under section 342, Code of Criminal Procedure afresh by putting him all pieces of prosecution evidence, enabling him to know and respond to the same and shall decide the case after hearing the parties, within one month of the receipt of this order. In case of conviction of appellant by the trial Court and in the event of filing a criminal appeal by him before the learned High Court, the same shall be decided within one month of its filing. A copy of this order shall be sent to the Registrar, High Court of Sindh, Karachi for its circulation among all the Judges of trial Courts in the Province of Sindh for perusal and strict compliance."
16. Mr. Shahzado Saleem Nahyoon, learned Additional Prosecutor General conceded to the learned counsel for the appellants for remand of the case on the ground of manifest illegalities committed by the trial Court, which are not cureable in law.
17. For the above stated reasons, we have no hesitation to hold that trial Court has committed multiple illegalities while conducting trial in aforementioned sessions cases, those illegalities are not cureable and have caused serious prejudice to the accused/appellants. Keeping in view the peculiar circumstances of the case learned counsel for the appellants and learned A.P.G are in agreement that the matter needs to be remanded back to the trial Court for retrial of the case from the stage of framing of charge afresh and recording the evidence of all prosecution witnesses in both the cases i.e. main case as well as of juvenile accused/appellant separately under the relevant provisions of law. After framing charge(s) afresh and recording of the prosecution evidence, trial Court shall record the statements of accused under section 342, Cr.P.C. afresh while putting all the pieces of evidence brought on record against them by providing a fair opportunity to them to respond the same and also to lead defence evidence, if any.
18. As regard to the cases of acquitted lady accused namely Ms. Farasat, Mst. Nayab and Mst.
Tehreem are concerned, learned A.P.G submits that trial Court while acquitting them has assigned sound reasons and complainant / State has not filed any appeal against their acquittal. Therefore, it is submitted by learned A.P.G that no useful purpose will be served by remanding the case of these lady accused to the trial Court for re-trial. Thus, trial Court is directed to conduct the retrial of the appellants namely Danis, Jahanzaib, Waseem and Suhail only without touching the case of lady accused who have already been acquitted and earned presumption of double innocence after acquittal. As the case is old of 2010, trial Court is directed\ to decide the same within a period of two months from the receipt of this judgment under intimation to, this Court,
19. Keeping in view the peculiar circumstances of the case, learned counsel for the appellants and learned A.P.G Sindh are in agreement as mentioned above, that matter needs to be remanded back to the trial Court for framing of the charge afresh, re-recording evidence in both the cases separately in accordance with law and re-recording statements of the appellants under section 342, Cr.P.C, while putting all the incriminating pieces of prosecution evidence produced during trial, to them, giving them an opportunity to know and respond to the same. Resultantly, instant appeals are partly allowed. Impugned judgment of the trial Court is set aside. Consequently, conviction and sentence(s) of the appellants are also set aside. They shall be treated as under trial prisoners.
Reference made by the trial Court for confirmation of the death sentence awarded to appellants Danish, Jahanzaib and Waseem is answered in negative.
20. Learned counsel for the appellants pointed out in the end that appellants were on bail during trial, such concession may be extended to them during re-trial. We have decided to remand the case to trial Court for re-trial. Appellants would be at liberty to apply for bail before the trial Court and the same shall be decided in accordance with law.
21. In the view of above, Appeals and Confirmation Reference are disposed of in the above terms.
A copy of this judgment shall be sent to Mr. Inayatullah Bhutto, the then Additional Sessions Judge, Khipro, for future guideline.