' ABDUL HAMEED DOGAR, J.---By this judgment we propose to dispose of Special Anti-Terrorism Appeals Nos.11 and 14 of 1998 as they arise out of a common judgment.
2. Appellants Syed Saleem Jafri and Syed Tanvi Abbas Razvi have challenged judgment, dated nil, passed by Mr. Hakim Ali Abbasi, Judge Special Court for Anti-Terrorism, Karachi Division at Karachi, whereby they along with absconding accused Ran Imran Naqvi were convicted under section 302/34, P.P.C. And sentenced to death with a fine of Rs,50,000 each and in default whereof to suffer further R.I. For two years each. They were also convicted under section 324/34, P.P.C. With 10 years R.I. And fine of Rs,10,000 each and in default whereof to undergo further R.I. For six months. An amount of Rs,30,000 was ordered to be paid to the legal heirs of the deceased in equal shares, out of the fine if realized.
3. Briefly stated the case of prosecution, as disclosed in the F.I.R., is that on 2-11-1997 Maulana Dr. Habibullah Mukhtar along with his friends, namely, Maulana Bashir Ahmed Naqshbandi, Maulana Mufti Abdus Sami, Maulana Abdul Qayyum and driver Muhammad Tahir proceeded to Madrassah Maroof-ul-Uloom, situated at Paposhnagar, to attend meeting scheduled at 11-00 a.m. In Madressah's Hi-Lux van No,EB-0438. The case of prosecution further is that after attending the meeting, when they, while returning, reached in front of Business Recorder Building at about 12-35 p.m., slowed down their vehicle duty to rush and at that moment there appeared a motorcycle with two persons sitting over it, who after coming in front of their vehicle, started firing at driver Muhammad Tahir, who sustained injuries and later on succumbed to injuries, whereas others ducked down in the vehicle. Immediately thereafter, firing was made from both sides on the vehicle and some explosive substance like petrol/kerosene oil fell on the face of Maulana Dr. Habibullah Mukhtar, who was reciting hula Lillah'. Flames started touching the sky and the vehicle burnt to ashes, wherein Maulana Dr. Habibullah Mukhtar and Maulana Mufti Abdus Sami were completely burnt, while Maulana Abdul Qayyum miraculously escaped unhurt. Maulana Bashir Ahmed Naqshbandi, sitting on the front seat, fell down due to the bullet injuries before the vehicle caught fire and was removed to Civil Hospital. The motive behind the incident, as disclosed in the F.I.R., was that the complainant party had suspicion on three groups, as few days earlier threatening news had appeared in the newspapers after the incident of Multan and it was being published that Tehreek-e-Fiqhe-Jafria had the hand behind the martyrdom of Ulema. Besides, some agents, who were also suspected, wanted to create hatred among the Ulema of various sects at the instance of foreign elements.
4. Appellants Syed Saleem Jafri and Syed Tanvir Abbas Razvi were arrested. On completion of investigation they were sent up to face trial along with absconding accused Raza Imran Naqvi.
5. A charge was framed against the appellants, to which they did not plead guilty and claimed trial.
6. At trial the prosecution examined P. Ws. Qari Muhammad Iqbal complainant, Maulana Bashir Ahmed Naqshbandi, Ahmed Ali, Aziz Ahmed, Muhammad Hafiz, Muhammad Naeem, Dr. Munir Pittafi, Dr. Ghulam Sarwar, Abdul Sattar, D.S.P., C.I.A., Karachi, Abdul Qayyum, Abdul Rahman, Nisar Ahmed, Dr. Shabab Agha, Muhammad Saleem, S.H.O. Of Police Station Soldier Bazar, Adam H.
Sanghar, Judicial Magistrate, Raja Tariq Mahmood, A.S.I., Sorab Ali, Inspector, C.I.A., whereas gave up 11 witnesses and closed its side.
7. The appellants in their respective so called statements under section 342, Cr.P.C., denied the case of prosecution and claimed to be innocent and stated that they were falsely involved by police. However, they did not examine themselves on oath as required under section 340(2), Cr.P.C., but appellant Syed Tanvir Abbas examined his wife Sakina Tanvir in his defence.
8. The Trial Court framed the following points for determination:
(1) Whether Maullana Dr. Habibullah Mukhtar, Maullana Mufti Abdul Sami and driver Muhammad Tahir suffered death and Maullana Bashir Ahmed Naqshbandi received injuries?
(2) Whether the prosecution has been able to prove beyond any reasonable doubt the guilt of the accused persons as alleged?
(3) What offence, if any committed by the accused?
9. In the case were declared absconders and On assessment of evidence the appellants and absconding accused Raza Imran Naqvi were found guilty and were convicted and sentenced as above.
10. We have heard M/s. Syed Nair Husain Jafri and S. Wager Hussain Naqvi on behalf of the appellants, Mr. Habib Ahmed, Assistant Advocate-General, on behalf of the State and Mr. A.Q.
Halepota on behalf of the complainant.
11. At the very outset the above learned' counsel for the parties submitted that the proceedings in the Trial Court have not been conducted in accordance with law and has mused great miscarriage of justice. They pointed out that some very serious lapses have been committed in the trial of the appellants which o to the route of the case vitiating the trial.
12. We have gone through the judgment as well as record and proceedings of the Trial Court and with the assistance of the learned counsel for the parties have noted the Following commissions, omissions, irregularities, illegalities and other lapses of the like kind:
(1) Process Server Inspector Muhammad Iqbal Niazi was examined in reference to the 3hsconsion of accused Raze Imran Naqvi in respect of proclamation under sections 87 and 88, Cr.P.C. On a date of which no reference is found in the file. Moreover, order, 'dated nil shows that all the three accused proclamation in their respect was directed to be published. Such publication appeared in daily Dawn, dated 16-2-1998, which does not bear the name and particulars of the accused at all;
(2) The depositions of P.Ws. Maulana Bashir Ahmed. Ahmed Ali, Abdul Rahman, Nisar Ahmed, Muhammad Saleem, Adam H. Sanghar and Raja Tariq Mahmood do not show as to on what date the same were recorded;
(3) The statements under section 342, Cr.P.C_ of appellant Syed Tanvir Abbas Razvi appearing at page 373 of original file and of appellant Syed Saleem Jafri at page 381 of the file have not at all been signed by the trial Judge. Even the required certificate, which is to be appended at the foot of such statement, too has not been signed by the trial Judge. These being requirements of section 364(2), Cr.P.C. Have not been deliberately complied with as such the entire trial on the aforesaid lapses stands vitiated;
(4) Irrespective of above, the statements of Court witness Muhammad Iqbal Niazi, S.H.O. Of Police Station Soldier Bazar and D.W. Sakina Tanvir have not been signed by the learned trial Judge, which, in our opinion, is a deliberate and a serious violation of law;
(5) The impugned judgment neither bears the date of pronouncement nor its pages are signed which are the legal requirements as laid down under section 367, Cr.P.C. In such a situation we are convicted in our minds that this act too has been done knowingly and with a particular purpose to defeat the ends of justice. There is no case diary seen in the original record of the Trial Court after 3-4-1998, on which date the judgment was not ready and was postponed and thereafter, there is no case diary on the record to show as to on what date the judgment was announced; and
(6) In the proceedings the statement giving up P.Ws., statement of closing the side of prosecution, statements of the appellants under section 342, Cr.P.C., the deposition of Court witness Muhammad Iqbal Niazi and that of defence witness Sakina Tanvir including other documents have neither been exhibited nor numbered.
13. While the arguments were being advanced, we called the learned Advocate-General, Sindh, complainant Qari Muhammad Iqbal and the trial Judge Mr. Hakim Ali Abbasi. The learned Advocate-General after going through the record admitted the abovementioned lapses.
14. Mr. Hakim Ali Abbasi was asked to go through the entire record in open Court, who after going through the same, admitted all the above mentioned lapses to be correct and failed to reply.
15. From what has been discussed above, we are of the considered view that the trial has not been held in accordance with B law. The omissions, commissions, illegalities and lapses referred above of such a nature that they are not curable under section 537, Cr.P.C.
16. Accordingly we set aside the conviction and sentence by allowing the appeals and remand the case under section 423(b), Cr.P.C. For retrial.
17. Before parting with the judgment, we record with profound sadness our resentment, disgust and displeasure on the aforementioned lapses which are not the lapses of condonable nature but are shocking and horrifying. We, in order to avoid the repetition of such acts in future, propose a serious action against the delinquent Judge. Copies of this judgment be sent to the Secretary, Ministry of Law, Justice, Parliamentary Affairs and Human Rights, Government of Pakistan, Islamabad, Law Secretary, Chief Secretary to the Government of Sindh and the Secretary to the Governor of Sindh.
Photocopies of the entire record of the Trial Court be kept on the record of this Court.