1. ' FAIZ MUHAMMAD QURESHI, J.---Present applicant has called in question the judgment passed by Judge, Anti-Terrorism Court, Larkana in Case No,60 of 1999 under sections 365-A, 302, 34, P.P.C. And under section 7 of the Anti-Terrorism Act, 1997 in Crime No,73 of 1999 registered with Police Station Ghouspur whereby present appellant has been awarded death penalty. The trial Court has also assigned criminal reference for confirmation of death sentence under section 374, Cr.P.C. We propose to dispose of both by the common judgment.
2. ' The prosecution story as contained in the F.I.R. No, 73 of 1999 under sections 365-A, 302, 34, P.P.C.
3. And under section 7(1)(a) of Anti-Terrorism Act, 1997 is that complainant Sahib Rai lodged the report with Police Station Ghouspur stating therein that he is living alongwith his maternal-uncle Birj Lal who has son namely Aroon Kumar aged about five years. On the day of incident at about sun-set time Aroon Kumar went out of the house to purchase some sweet but he did not turn up.
4. The complainant and P.W. Birj Lal went in search of the boy. One Murlidhar also met them and they all started search. While searching they Came out of Ghouspur Town, at about 7-15 hours when then reached on the path of Ghouspur Miner they heard weeping voice of abductee Aroon Kumar.
5. They flashed their torches and saw appellant Abdul Ghaffar Ogahi and accused Haroon Ogahi throttling abductee Aroon Kumar. On being confronted accused demanded payment of two lacs as ransom. It is the case of prosecution that complainant and his maternal-uncle showed their inability for the payment of ransom. Resultantly, within the sight of complainant party, appellant Abdul Ghaffar inflicted Soti blow on the head of abductee Aroon Kumar, which he fell down.
6. Subsequently, appellant Abdul Ghaffar and accused Haroon Ogahi decamped from the place of occurrence. Thereafter, complainant party went over minor body (sic) Aroon Kumar who was dead having received injury on his head, his lips were bloodstained and he was throttled.
7. ' After usual investigation, dead body of deceased Aroon Kumar was despatched for post-mortem examination, 161, Cr. P .0 . Statements of P.Ws. Murlidhar and Brij Lal were recorded. On 30-10-1999 complainant and P.Ws. Produced Torches before the Investigating Officer. During the investigation of the case, appellant Abdul Ghaffar Ogahi and accused Haroon Ogahi were arrested by Investigating Officer on 1-11-1999. On 4-11-1999 P.Ws. Were produced by the Investigating Officer before Judicial Magistrate Kandhkot where their statements under section 164, Cr.P.C. Were recorded. After completion of investigation both were challaned in the Court of learned Judge, Anti-Terrorism Court, Larkana, where their case was tried, where 'accused Haroon Ogahi was acquitted and appellant was convicted as above.
8. ' Trial of the case commenced on 18-12-1%9. The requisite oath under section 16 of the Act was taken by the learned trial Judge in presence of accused and defence counsel in open Court.
9. Charge against the accused persons was framed as Exh.7 to which accused persons pleaded not guilty and claimed trial. Plea of the accused persons was recorded as Exh.8 and Exh.9 respectively.
10. ' In order to prove its case, the prosecution examined eight witnesses namely 1. Complainant Sahib Rai was examined as Exh.10 who produced the F.I.R. As Exh.10-A.
2. P.W. Brij Lal was examined as Exh.11 who produced his 164, Cr.P.C. Statement as Exh.11-A.
3. P.W. Murlidhar was examined as Exh.12 who produced his 164, Cr.P.C. Statement as Exh.12-A.
4. .P:W. Ashok Kumar was examined as Exh.13 who produced Mashirnama of place of occrrence as Exh.13-A. Danishnama of dead body as Exh.13-B, Mashirnama of production of Torches by complainant and P.Ws. As Exh.13-C and Mashirnama of arrest of accused and recovery of Soti as Exh.13-D.
5. P.W. Dr. Sundro was examined as Exh.14 who produced post-mortem report of deceased as Exh.14-A.
6. P.W. Noor Muhammad Tapedar was examined as Exh.15 who produced sketch of Wardat as Exh.15-A, 7.P.W. P.C. Nazeer Ahmed was examined as Exh.16 who produced receipt as Exh.16-A and 8.
11. P.W./Investigating Officer Ubedullah Jagirani the S.H.O. Police Station Ghouspur was examined as Exh.17 who produced Roznamcha entries as Exhs.17-A and 17-B (photostat copies) and letter addressed to Judicial Magistrate, Kandhkot for recording 164, Cr.P.C. Statement as Exh.17-C.
12. Learned Public Prosecutor closed the side of prosecution vide his statement as Exh.18.
13. ' Statements of accused Abdul Ghaffar and Haroon were recorded under section 342, Cr.P.C. As Exhs.19 and 20 respectively. Accused Abdul Ghaffar examined one Lakhan Shaikh as Exh.21 in his defence. Learned defence counsel, thereafter closed his side vide statement as Exh.22.
14. ' The learned trial Court after hearing learned counsel for the parties and perusing the case-law relied upon by the counsel for the parties framed the following points for determination.
(1) Whether deceased Aroon Kumar died his unnatural death having sustained Soti blow on his head and by throttling his neck?
(2) Whether accused persons named above on 30-10-1999 in furtherance of their common intention kidnapped minor boy Aroon Kumar for ransom from Ghouspur Town?
(3) Whether on the same date at 19-15 hours accused persons committed Qatl-e-Amd of minor boy Aroon Kumar by causing him Soti blew on his head and throttling his neck on the top of Ghouspur Minor and struck terror and created sense of fear and insecurity in people?
(4) Whether accused persons are liable to be convicted for committing offences punishable under sections 365-A, 302, P.P.C. Read with 34, P.P.C. And under section 7(i)(a) of A.T. Act, 1997.
15. ' Learned trial Court after going through the evidence adduced by the prosecution and material available on record passed judgment in above terms.
16. ' At the very outset, Mr. Asif Ali Abdul Razzak Soomro, learned counsel for ti,e appellant has drawn our attention on charge at page No:19 Exh.7 and has contended that Soti blow has been caused on the head of minor boy Aroon Kumar and his neck was throttled and according to him it is not the case of terrorism and is not falling under section 7(i)(a) of the Anti-Terrorism Act, 1997 and he has read the relevant portion of section 7(i)(a) of A.T. Act, 1997. According to Mr. Soomro no panic is said to have been spread in the locality where the alleged offence is said to have taken place and only Soti blow has been caused on the head and thereafter the accused throttled the neck of the deceased and in no way the case is falling under section 7(i)(a) of A.T. Act, 1997 and thus, the charge is defective section 6 of Anti-Terrorism Act, 1997 is reproduced as under:- "6. Terrorist act.---A person is said to commit a terrorist act if he,
(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of people, or to adversely affect harmony among different sections of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such tire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public lawful duties; or
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to alternate any section of the people or to adversely affect harmony among different sections of the people; or ' Mr. Soomro has also drawn our attention on the deposition of complainant at page No,2 Exh.10 wherein the complainant has implicated the present appellant whereas he has not implicated co- accused Haroon who has been acquitted by the trial Court on the same set of evidence. Learned counsel for the appellant has elaborated his contention by inviting our attention on the statements of the accused Abdul Ghaffar and Haroon under section 342, Cr.P.C. Wherein the questions put to Abdul Ghaffar present appellant is same which is reproduced as under:-- "You have heard the prosecution evidence. It has come in evidence that on 30-10-1999 you alongwith co-accused Haroon son of Soomar Ogahi in furtherance of your common intention kidnapped minor boy Aroon Kumar aged about five years for ransom from Ghouspur Town and committed his murder by causing him Soti blow on his head and throttling his neck on the top of Ghouspur minor at 19-15 hours and struck terror and created sense of fear and insecurity in the people of Ghouspur. What have you to say?"
17. ' And the same question has been put to Haroon by the trial Court under section 342, Cr.P.C. Which is also reproduced as under:- "It has come in evidence that you alongwith co-accused Abdul Ghaffar Ogahi on 30-10-1999 in furtherance of your common intention kidnapped minor boy Aroon Kumar aged about five years for ransom in Ghospur Town and committed his murder by throttling his neck on the, top of Ghouspur minor at about 19-15 hours and struck terror and created scene of fear and insecurity in the people of Ghouspur. What have you to say?"
18. ' Mr. Soomro has contended with vehemence that the learned trial Court has not taken into consideration the entire evidence of the prosecution witnesses. Had he taken the evidence of the complainant and other witnesses into consideration he would have not put the question to co- accused Haroon and thus, the learned trial Court has not taken into consideration the entire evidence which goes against the mandatory provisions of section 367, Cr.P.C. Mr. Soomro has further drawn our attention on the statements of the appellants under section 342, Cr.P.C. And has submitted that there is no LTI of accused Abdul Ghaffar on page No,1 of the statement at page No,119 and on the second page there is LTI of accused and below LTI it is mentioned LTI of accused and according to Mr. Soomro it is not mentioned which accused has affixed LTI on the statement at page No,119 Mr. Soomro has further drawn our attention on the statement of co-accused Haroon under section 342, Cr.P.C. And on the first page of the statement at page 121 there is LTI of co- accused Haroon whereas on the next page there is nothing mentioned below LTI the name of the accused as to who has affixed it on the said statement and Mr. Soomro has further elaborated his contentions that there is flagrant violation of section 364(2), Cr.P.C. He has further submitted that the certificate which has been written in the handwriting of the learned Presiding Officer does not give the name of the accused and thus, there is flagrant violation of the mandatory provision of section 364(2), Cr.P.C. He has finally submitted that it is a fit case for remand to the trial Court.
19. ' On the other hand Mr. Abdul Fatah Mughal, learned counsel for the State, has conceded the legal position and recorded his no objection if the case is remanded to the trial Court.
20. ' We have heard the arguments rendered by the learned counsel for the parties and we have gone through the charge which we have examined and we have found the same being defective. We have also gone through the evidence adduced by the prosecution. Complainant and other witnesses' have specifically implicated the present appellant whereas they have not implicated co-accused Haroon and yet the trial Court while recording the statement under section 342, Cr.P.C.
21. Has put the same question to co-accused Haroon and we are of the view that the trial Court has not taken into consideration the entire evidence of the witnesses and thus, we find that there is violation of the mandatory provisions of section 367, Cr.P.C. As the entire evidence has not been taken into consideration by the trial Court while recording statement of the accused under section 342, Cr.P.C. Reliance can be placed on 1969 SCM R 777 and 1995 SCMR 1374 and 1375 wherein the piece of evidence existing against accused and the same question has not been put to the accuse by the trial Court and in the present case there is no evidence against co-accus Haroon that he throttled the neck of the deceased and also caused Soti blow o the head of deceased Aroon Kumar and yet this question has been put to co-accused Haroon and it is crystal clea that learned trial Court has not taken into consideration the entire evidence and from that point of view it is a fit case for remand. We have also observed with care that there is a flagrant violation of section 364(2), Cr.P.C. As there is no LTI on the first page o the statements of the accused under section 342, Cr.P.C. And on the second page there is only LTI but no name of the accused appear. Even in hand writing by the trial Court does not reveal the name of the accused persons and we are of the considered view that the trial Court has committed illegality while recording the statement under section 342, Cr.P.C. Of the accused persons and which is in violation of section 364(2), Cr.P.C.
22. ' Upshot of the discussion is that illegality has been committed by the trial Court under section 342, Cr.P.C. Charge is defective and the entire evidence has not been taken into consideration by the trial Court. Accordingly we set aside the impugned judgment and remand the case to the trial Court for fresh trial. Learned counsel for appellant would be at liberty to file any application with regard to the jurisdiction of the trial Court. Criminal Reference under section 374, Cr.P.C. Before us is rejected. .