ZEESHAN @ SHAN S/O SULEMAN @ CHACHOO (Appellant) VS THE STATE (Respondent)

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Criminal Appeal No-729 of 2019

Zooshan @ Shan

Vs'

Tho State

I.IICI-I COUII'T OF SINDI I

-t;

Mr. Justlce Mohammad Karlm Khan Agha

Dates of lrenring : 13-l l-2024

Decided ott : I9-l l-2024

(a)Judgment approved for Reporting Yes.

CE,RTIFICATE.

*/Order is based upon or enunciates a principle of law Certified that the judgment I +/decides a question of larv which is of lirst impressiorr/distinguishes/. Over-rules/ reverses/explains a previous decision'

* Strike out whichever is not applicable.

NOTE: - (i) This slip is only to be used when sotrle action is to be taken.

(ii)If the slip is used, the Reader must attach it to the top of the first ^ page of the judgment.

(iii)Readcr nrust ask the Judgc rvriting the Judgment rvhether the Judgment is approved for reporting,

(iv)Those dircctions rvlrieh nrc not to be usetl should be deleted.

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IN THE HIGH COURT OF SIHDH

AT ITARACHI

crir*innl Appeal No. h?+2019

ZEESHAN (il,SHAN S/o Suleman (! Chachoo Presently coufinect in Central Jail,

*" APPLICANT/ACCUSED

at ltarachi rir...

VERSUS

TI{E STATE ...r.. F'ESPOIilDEIYT FIR No: 148 l2}l3

U/S: 3OZ PPC

P.S: Garden, Karachi

APPEAL UI S +1O CRIMINAL

PH,OCEDUR.IT CODE

Being aggrieved and dissatisfied with the impugned judgment, sentenced and fined dated 10-10-2019 passed by the Learned Ist Additional Session Judge (Model Criminal Trial Court) at Karachi South in case No.992/2013 (The State V/S . ZeeshaLr, @ Shani S/o Muhammad $uleman) arising out of FIR No.14S/2013 U/s 302 PPC at PS Garden, thereby conrricting the Appeilant, The Appellant/Accused Zeeshan @ Shani S/o i I Muhammad Suleman U/s 302 PPC R1w Section 265-H(ii) undergo life imprisonment with fine of Rs.300,000/- (Three Hundred Thousand) and in defar-rlt of payment of fine A ppellant/Accused shall undergo a six months, benefit of section Cr.P.C which was also arnrarded to the Appellant/Accused. It therefore prayed t.hat this l{on'ble Court may be pleased to recall and proceed the ahove case from the Learned Ist Additional Session Judge (Model Criminal Trial Court) at l(arachi South and after hearing the Appellant/Accused and his counsel, it may be pleased to set-aside the impugned Judgment dated

2o3

IN TH trHI H COURT OF S HAT I}'cscnt;

Mn Justlce Jlfioh atnmad Kartm Khan Agha

SBL. APPtrAl, HO'??g

Airpcllaut: Zcc.qltan 6l Sharr */ o Sult'man {0 Chachoo througlr Ms. I?ariyal lslracluc and Mr. Sathi M.

Ishaquc, Aclvocatcs,

Itespotttlcutt Tlre $tatc through Mr. Muhammad Iqbat Awan, Acldl. Prosecutor General, Sindh

Complaiuant: Tluough M/s. Muhammad Ashra f Kazi Irshad Ahmed Jatoi, Advocates.

Date of l{earing: 13.11.2024

Date of Announcement: 19.11..202+

IUDGMET{T

t Muhammad l(arim Khan Agha, J. Appellant Zeeshan @ Shan was tried in lhe Court of Additional Sessions ]udge-l/Model Crirninal Trial Court Karachl South in Sessions Case No.992 of 2013 in respect of Crime No. 148 of 2013 registerer.l under Sectiorr 302 at P.S. Garden, Karachi and after a full-fledged kial vitle judgment dated 10.10.2019 he was convicted under section 265-H(2) Cr.P.C. anr{ sentenced to life imprisonment for committing an offence punishable unrler Section 302 PPC. Appellant was directed to pay compensation to the legal hcirs of the deceasecl u/s, 544-A Cr.P.C. in the sum of Rs.3,00,000/- and in rlefault, ["re was directed to suffer SI for six months more. The benefit of section 382-E Cr.P.C. was also cxtenclad to the appellant.

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namely Syect Afsar Slrah agecl about 34 years was serving as constable in Police Department and was postcd at Security Zone-I, Karachi and was performing i-ris duty in Sindh l-ligh Cour[, who lefl his ltouse on ],8.07.2013 after Iftar for l"ris duty anrl at about 2100 hours his other son nflmely Syed Tayab Shah informed hirn that Afsar Shah had received iniuries and he rvas taken to Civil Hospital Karachi. Thereafter sons of complainant and his relatives went to Civil Hospital and founcl that his son was in Operation Theater who succumbed to his irrjuries* t

during n^reclical treatrnept. After sorne inquiry, complainant cafile to knovu that his son was sitting with his friends namely Waqar Ahmed and Ghulam Mustafa for taking tea at Tea Cabin rlear Nishtar Road, Shoe Market, Nagori Mailk Shop when at about 2030 hours all of sudden one person came and caused knife blows to his sorl ot1 right sirle of lris neck, who fell down, thereafter he was shifted to Civil l-Iospital by Wnqar Airmed, Ghulam Mustafa and Nadeem where his son succunrlrerl to iujurics. Cornplainant submitted that accused / appellant Z,ecslran @ Sharr caused fatal injuries to his son which resulted in his death, I{ence aforesaicl FIR r+,as lodged.

3.After usual investigation the rnatter was challaned and the appellant was sent up to face trial. I{e pleaded not guilty and claimed trial.

4.In orrler to prove its case the prosecution examined 10-PWs and exhibited various items and other documents. The appellant recorded his statement under Section 342 Cr.P.C, whereby he claimed that he was innocent. However. he did not give evidence on oath or call any witness in support of his defence"

5.After appreciating the evidence on record, the learned kial Court convicted and sentenced the appellant as set out earlier and hence, the appellant has filecl this appeal against his convicfion and sentence.

6.After the entire evidence had been read out by learnec{ counsel for the appellant an issue arose as to whether the 5.342 Cr.PC statement of the appellant was in accordance with the law and what the iegal consequences might be.

7.The prosecution case primarily rests on the evidence of three eye witnesses who according to their evidence all saw the accused stab the deceased to death,

B, With regard to the question of the mulder of the deceased by the appellant in respect of the eye witnesses r+,ho gave evidence that they sar*, the appellant stab the deceased the following qr"restion rvas put to the appellant in his first 5.342 Cr,PC statemenU

Q.01.You luwe lrcnrd tlrc :srosacrtfiort eutdeuce rscarded in your presence during trinl of tlw cnse nnd it hns conrc in euidence tlmf on '1.8.07.2013 nt nbortt 20i0 lrours nf Nislllnr Ron4 Slroe nmrkel ilenr Nngon Milk Slrcp, Gnrden, Knrnclti, you nttncked uyan decensed Syed Afsnr Slralr lmoruingly nnd intentiannlly nnd cnuserl Clnrri injuries to ltim rcith intent to kill lim due to rulich he expired tlrcreby llottt',lmue cotnmitted Qntl-e-Amd of the decensed punislmble under section 302, PPC . Wmt lmue to sny?

Ans" Il is fnlse nllegntion,

g. Thereafter the Prosecution moved an application to call two flurther pW,s being the MLO in respect of the medical evidence ancl the judicial magistrate i*

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resPect of thrcu'' 5,164 Cr-PC statements which hc recorclccl, Such application was nllowe.{ nnd the two oforesnirl wltncssos gflvc evidcncc,

10.Thr--rcnfter the trinl corrrt rccorr{cct n second "Further statemcnt of accused untler 5.342 Cr,IlC" rvhclc nt Qucstlon unc lhc following question was askec{ nmongst othcr tlucstiolts;

Q.01. llrt,r, yorr lrr,nrrf;rrust'urliott t:t,iilt:,rr(, ,?rorrfud ntl*r nllowing on -l;

rt;r;rlirtrlriut rrrlrlrr srcliorr 540 Cr.llC, tnartrl by lmnrcl frDPti for tfut D*lrtft', itr yottr ;rrr'sclttr I

Arrs. ltrs Sfr.

11."l'he rluestion therefore arose fls to the legal effcct of the 5.342 Cr.PC statements.

12.All parties were in agreemen[ (learned counsel for the applicant, Iearned cottnsel for the complairrant and learned APG) that after recording two new PW's the first 5.342 Cr.PC statement was of no legal effect and a seconc{ fresh 5.342 Cr.PC staternent had to be recorded.

13.I agree with the parties and note that the trial court has tried to record a Jltrtlrcr statenrent under 5.342 Cr.PC apparerttly in contirumtion o[. the first 5.342 Cr.PC statemen.t of the appellant. There is howevr?r fio provision in [aw/concept wlriclr allows n ftrtlrcr 5.342 Cr.PC staternent to be made fu corrtinuntian of the first 5.342 Cr.PC statement r+'hich is limited to new witnesses which have been recorcler{ and after the evidence of two 'sitnesses had been recorded in between the two separate 5.342 Cr.PC statements. The 5.342 Cr.PC statement must be recorded afresh, if it has not already been recorded, at the cornpletion o[ tl"re prosecution case whicl"r would lead to their being oile final 5.342 Cr.PC statement encompassirlg each piece o[ evidence whiclr the prosecution intended to rely on to convict the accused. Tl"rere is no provision in law which enables thc court to record 5.342 Cr.PC staternents in a piece meal manner say after 3 witnesses have been examineci and then another 5.342 Cr.PC statement limiteci only to the latest 5.342 Cr,PC staternent with the result that all the 5.342 Cr.PC statements arc read together as one in continuation of each other. For ease of reference 5.342 Cr',PC is set out below;

"342. Power to ex*utiuc the ncurscrl, (1) For tlre purpose of enatrling the accuseql to explain atry circumstances appearing in the evir-ience against hirn, the Court rna1r, at any stage of any inquiry or hrial without previously warning the accused, put such questions to him as the court considers necessary, and shall, for the purpose aforesaicl, question him generally on the case after the witnesses for the prosecution have been examined and hefore he is called on for his defence,"

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14.Thus, the language of S.J4Z Cr.PC is clear and unambiguous that the 5.342 -- Cr'PC statemettt of the accused is to br rccorc{ecl after the witnesses for the prosecution have beerr exanrlned nnd lrefore he is called on for his defence (and not in a piecerucnl rrrnnrrcr tlrroughout the trial) although the court can ask hinr tltrestious tluring thc trial if it ronsir.lers it necessary but all pieces of sviqll'11s1' ngninst hiur nrust [:r: put to trirn nftcr the closc of the prosccution case anrl beforc he starts lris dufence cnse.

15' I finrl that after recorcling the two aclclitional PW's pursuant to the prosecutions applicntion unc{er 5.540 Cr.PC the first 5,342 Cr.PC staternent fell arllf,f entirely and the 5.342 Cr.PC staternent of the appellant had to be recorded a fresh putting to hirn any question which tended to implicate him in the offence and give hirn tlte opporfunify to explain each and every question before it could be reliecl upon to convict the appellant. Thus, only the second 5.3+2 Cr.PC staternent can bn: relied upon in this case.

16.It is well settled by now that if a question regarding a piece of evidence is not put to an appellant in his 5.342 Cr.PC statement for explanation that piece of evidence cannct be relied upon by the trlal court in order to convict the accused. In tliis respect reliance is placed on the case of hrluhammed Nawaz V State (2016 4 SCMR 267) which held as under in material part;

"Tlrcre is yet nnotltsr nsyect of tlw cnse. Wlile exnnining tlw nppillnnts ttndtr sectiotr 342, Cotie of Crhninnl Procedrrre, tlte nrcdical suidence u,ns not pttt to thenr. lt is zuell settled by rtow thst n piece of eaidetrce not lrrtt to frtt {tccttsed rhtrfug hisl'ltcr exsninatiott t*rder sectiott 312, Code of Crininal Procedure, could nat be used agnfrrsf ltirnflrcr for maintairnrtg conaictiotr anil settefice." (bold arlded)

17.Learned ,tPG and learned counsel for the cornplainant have arguer"l that even if a piece r:f evidence lras not been put to the accuserl itr his 5.342 Cr.PC statcment it can still be used to convict him as tht-' cornplainant shouki not be made to suffer orr accour:rt of the negligetrce of the prosecutlon and that the case should be decided on the evidence on record. In this respect reliance lvas placed on the cnses of The State/AhlF v. Muhntrrnratl Arshacl (20'17 SCMR 283) anrl Ansar Mehmood v, Abrlul l(haliq (2011 SCMR 713).

18.I find that I caunot agrec with the above conteution of the prosecution. The question thirt was not put to the appellant when his 5.342 Cr.PC statement was re recorded (their being no legal concept of a further 5.342 Cr.PC staternent ( in continuation of an earlier 5.342 Cr.PC statement) went to the heart of the prosecution case. i.e. that the appellant stabbed the deceasecl and thereb 'yl

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(orrlnlittcrl his rnurr{cr llntl tn lr* put to tlrc np;rcllnnt for his cxplanation.'['hc [act tlnt it wfls nu[ dnnu rlltlnnri thnt this pircc of cyc witncss cvidcncc 'stancts r:xcltrrtutl frtlrrr etrnsirlcrnliun wlrich Ifirrtl Icnrls to thc (()nclusion tllat thc l)r()$Lr*ltirrrr lrns fallcrl tn llr(lvL, lts cns* nllnirr-rt thu nppcllant bcy0nr,l a rcasonablc

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lg. I nrn fortifir-:rl try ltly finrlinl3 try tlru fnct tlrnt wllcn sny nt'l appcal is l-L,tllilllLlrtl fur th* linritcrl purpotrc nf rc rccorcling tltc cvirlcncc Uf trnc Particular Ir\V trtcilu..iL, thc acctrsetl lvflri rlcrricrl tlrc op1:nr[unil"y trl cros.ci cxflminc lrim tlrt: of cr,rur.ts lrhuost nhr,*),s rcnrnnrl thu casc to thc trial court for tlrc limitctl Purposc r.c l.L\cor.rling thc rvitrlcsses'r:virlencc bcforc thc clcfcnce counscl ancl allowing thc

r.lctcucu courrsel thc chanco to cro$s cxarnine thc witness and there after recorcl a

fresh tlre accrrsed S.g4Z Cr,PC statenrent arrd tlten after lrearing thc partics rc u,ritirrg the iuclgr:rent. The courts as a rule do not remand the case witlr a direction to further record a sectiou 5.342 Cr.PC statement in continuation of the earlier 5.342 Cr.PC statement lirnitecl only to what the re examined witness gatrc

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eviderrcc about.

20.I finrl that I cannot remand the case back to the triat court to recorcl a frcsh the appellants 5.342 Cr.PC statement as this would alrlount to fillirlg in thc lacuna's in the prosecution case which would prejudice the appellant anr-l l:enefit the prosecutior-r which would be violative of Article 10 (A) of the Corrstitution. In this respect reliance is placed on the case of Muhamtned Naeem V State (PLD 2009 SC 6bj where it was held as under in material part;

" In ntt nduersnrinl system the role of tlrc judge is thnt af n netttrnl utnpire , unruffied by enntiotts, n judge is fp ensure fnir trinl behueen tlw praseciltian nnd tlrc defertce o'n tlrc bnsis of tlrc euidence ltefore it. Tlrc judge slwr.ild not ente r tlrc nrenn so ns to nppenr tlmt lle is tnkirrg sidcs. The court cilnltot allow one af the pnt'ties to fill lailtttas iru tlrcir eaiderrce or exturd {t sccottd chance to a pnrty to itrrysroae tlte ir cnss or the qrtality ol the widerrcc tendered by tlrcrrt. Atrry sttclt sttlt would tarnish tlrc obiectiaity nrtrl irupnrtinlity of tlrc. court ruliilt rs ils hslltnarlr, Such tnuourcd iutenteutiott, ,to ttttttter ltotu rucll- I fite fiIting strikcs nt tlrc acry forutdntiotrs o,f fnir trinl, rulriclt is ttott) recogrrized as n fitnrlmtrental rigltt rtuder Arfirle 1.0-11 of oilr Co ns t i tu t iort," (bold acl clccl)

21,. Thus, after the exclusion of the cyc witness eviclence which was rrot puf to the appellant in his 5.342 Cr,PC staternent for explanation I find that the prosecution has not proved its case agairrst the appellant beyond a reasonable doubt and as sueh the appellant is acquittect of the charge, the appeal is allowed and the irnpugrred judgrnent is set asicle. The appellant shall be released ttnless he is wanted in any other custody case.

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