BABAR SIRAJ S/O SIRAJ (Appellant) VS THE STATE (Respondent)

€<t' ^[ C-ft "^,I P-st- "t 6i&-LC- &- r/' oH-c' C---tn-o lz s'

EEKTIFICATE OF THE HIGH COURT OF SINDH, KARACHI

Criminal Appeal NO. 176 ol 2021 Criminal Appeal NO. 177 ol 2O21 I Conf. Case NO. 08 of 2021

Babar Siraj

Vs

The State

HIGH COURT OF SINDH

Composition of Bench. D.B.

Mr. Justice Muhammad Karim Khan Agha Mr. Justice Zulfiqar Ali Sangi

Date(s) ofhearing: 0t-09-2022

Decided on : 0'7-09-2022

Judgment approved for Reporting Yes

CERTIFICATE.

Certified that the judgment */Order is based upon or enunciates a principle of larv */decides a question of law which is of first impression/distinguishes/. Over-rules/ reverses/explains a previous deci sion.

* Strike out whichever is not applicable.

NOTE: - (i) This slip is only 1o be used when some action is to be taken.

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

(iii)Reader must ask the Judge writing the Judgment whether the Judgment is approved for reporting.

(iv)Those directions which are not to be used should be deleted.

: IN THE HIGH COURT OF SINDH AT I{ARACHI

Cr. Appeal No. 4.of zozt I PRES EI'JTL:D cJN Baber Siraj s/o Siraj /- z^ B-202 \ Muslim, adult, R/o House No.

House No.B-49, Sth Floor, Flat Glory Excel NeePa Block- 10-4, Oopury Reglrt , {Jud,., Chowrangi apPlicant/ accused Presently detained in central Ja:J Kara c/*

Appellant

Versus

The State-- --"----ResPondent FrR NO.201 l2ol9 U lS: 3o2l34llt4 PPC P.S. New Town, Karachi

APPEAL U'/ s 410 CR.P.C Being and aggrieved / dissatislied with the judgment passed by Trail court on dated: i8.03.20:2 1, hence this appeal

FACTS:

As per prosecution story that complainant states that his deceased father was an employee of SBCA' He hand retired three months prior to the incident. He u,as General Secretary of Functional Labour Union of SBCA. Previously the deceased was General Secretary of People Unity Lal:our Union of SBCA. the complainant f was also employee in SBCA. wich he obtained through his deceased father. on l8-O7 -2olg the lncident occurred in front of SBCA en at 15:40 hours. The complainant was present on that day e d.eceased and Tanveer Choudhry (PW-4) Chairman of tional Labour Union. Ebrtahim Kaka was Chairman of People t5r, accused Arif Mota and Babar Siraj used to come to SBCCA together. Arif Mota was step brother of his father. Accused Arif Mota was not residing with his father as his father had no talking terms with him. one week prior to the incident accused Arif Mota and Babr Siraj had defaced poste'd of Union containing picture of his

I

w \

COURT OF SINDH AT I(ARACHI

' IN THE HIGH

cr. Appeal No.ly'Y of 2ozr PRES EN.TT:D o N , Baber Siraj s/o Siraj ZZ -o - (JJ z Muslim, adult, R/o House No.

House No.B-49, 5d Floor, Lr..prrty Rqr1.1rr, Flat Gla:ry Excel Neepa Block-1O-A, tl Chowrangi applicant/ accused lz=e Presently detained in central Jail /<e uo&i Appellant

Versus

The State-- -----------Respondent FrR NO.203l2ot9 U/s: A3.G) A P.S. New Town, Karachi

APPEAL U/S 41O CR.P.C

Being and aggrieved / dissatisfied with the judgment passed by Trail court on dated: 18.03.202 1, hence this appeal

FACTS:

As per prosecution story that complainant states that his deceased father was an employee of SBCA. He hand retired three months prior to the incident. He was General Secretary of Functional Labour Union of SBCA. Previously the deceased was General Secretar5r of People Unity Labour Union of SBCA. the complainant was also employee in SBCA. rvich he obtained through his deceased l father. on 18-07-2019 the incident occurred in front of SBCA canteen at 15:40 hours. The complainant was present on that day with the deceased and Tanveer Choudhry PW-4) Chairman of Functional Labour Union. Ebrtahim Kaka was Chairman of People 1lI , accused Arif Mota and Babar Siraj used to come to SBCCA er. Arif Mota was step brother of his father. Accused Arif Mota .,'.a( \ +'; $\ s not residing with his fathcr as his father had no talking terms itl with him. One week prior 1.t-r the incident accused Arif Mota and Babr Siraj had defaced posted of Union containing picture of his

I

\L

Ir

I @

OFFICE OOF THE DISTRICT & SESSIONS JUDGE KARACHI EAST.

No'AE/conf-Death/ agr-B y l2o2r KARACHI DArED: }aoaiodi 3leL-.

To, CR \,q,1 'l The Registrar orir E -.-o.-1.

Honorable High Court of Sinclh l]':i'i,, ;,' Karachi.

,r SUB: REFERENCE UNDER SECTION 374 CR.P.C FoR

CONFIRMATION OF DEATH SENTENCE IN

I SESSION No.9S/2O2O, FIR No.2010/2019, u/S. 3O2ltt4/34 ppc oF ps NEW TOWN KARACHT

THE STATE VERSUS BABAR SIRAJ S/O SIRAJ,

AS PROVIDED UNDER SECTION 374 CR.P.C OR

OTHERW ISE

The reference for confirmation of death sentenc(, in the sub.ject case submitred b,r' the ludge ol odel Crimrnal Trial Court/ Additional Sessions Judge-1, Karachi East i nt hereu,ith.

(KHALID ssArN SHAHANT ) District &, Sessions Judge, Encl: as above .a Karachi-East 'qp

a^-"\ : Cf : c..,1 f as[,- { e^-{& G .rr{ 6 a""tf[q1 \ "/.

IN THE HI GH COURT'OF SINDH, KARACHI

CRIMINAL APPEAL NO.176 OF 2021.

CRIMINAL APPEAL NO.177 OF 2021,.

CONF. CASE NO.O8 OF 2021.

Prcsent:

l\4r. Justict ilolrrrtlntsd Korim l(nn Agha .\1r. lus tira Trrl.fiqtr AliSangi

Appellant: Babar Sirai S/o Siraf through Mr. I(harvaia Navecd Ahmed, Advocate.

Compla inant: Svecl Talha Ashraf through t\tr . Ghtrlam Mrrrtaza, Advocate.

Respondent: The State through Mr. Muhanrmad Iqbal Awan, Additional prosecutor General Sindh.

Date of Hearing: 0'1.09.207?

Date of Judgment: 07.09.2022.

IUDGME NT

N,IOHAMMAD KARIIU KHAN AG n^, I, - lVe intenci to dispose of these tw,o appeals through this consoridated jutlg,rent. The appellant Babar siraj s/o. Siraj n'as tried before the Court of Additiru-rar District & Sessions [udge-r, Karacrri East in sessions case No.95 of 2020 out .f Crime No.201 of 2079 rJ / s. 302/34/ 174 PPC registered at PS New Town, Karachi a.ti vide judgment crated 1g.03.2021 the appella.t was sentencecl to death subject to confirmation by this court. I, acitlitior-r the appellant was ort{eretl to pav compensatiorr of Rs.500,000/- to the legal heirs of the deceasetl as retluir.c'd under section 544-4 Cr.p.C. In a,other sessions Case No.251r of 2019 our of Crirne No.202 of 2019 u / s.23(i)A) of sir-rrth Arms Act, 2013 registered at pS Ner.,,.for.v,, Karachi virle judgment dated 18.03,202'l the appellant was convicted and sentencecl to suffer R.l. for tt7 r,ears with fi,e of Rs.10,000/- and in case of non-payment of fine, he shall iurther suffer S.l. for two months more.

^o

2.The brief facts of the case as per FIR No.201/2019 are that on 1g.07.2019 at 1540 hour accused Arif Mota and lJabar came near to the canteen of sCBA anr.r exchanged hot words with the deceaseel. Accused Babar Siraj went inside the office of Ebrahim Kaka, brought back one pistol which he firstly pointed at the complainant and then shot at the deccased, upon which he sustained bullet injury on right side of abdornen. Accused Babar Siraj again pointed pisrol at rhc. complainant but his father grappled his hand and brought down pistol of accused Babar Siraj. The decease.l became injured and unconscious. l-le was shifted to Liaquat National Hospital br.his friends. people gathered at the spot. Accused Babar Sirai attempted to llee away but he was apprehended by people with the help of police but accused Arif Mota made his escape good. The complainant picked up the pistol of Babar Siraj and handed over the same to the police. The pistol contained four bullets and one empty was recovered from the place of incident, which he also hancled over to police. The pistol was taken to IJS by police while he proceeded to Liaquat National Hospital where his statement under section 154 Cr.P.C. was recorded at 1730 hours when deceased was admitted in ICU. on 19.07.2019 at 0210 hours the deceased dietl during treatment at hospital and police completer.l necessarv formalities and thereafter, the tlearl bodv was shifted to Jinnah Hospital r.r,here after completing legal formalities it was handed over to the complainant. The statement of complainant unc.ler section 154 Cr.P,C. recorded at the hospital was incorporated in FIR bv SII, Ghulam Akber in a murder case.

3.Thereafter, another FIR bearing No.202/2079 was also registered which states that on 18.07.2019 at about 1630 hours, SIP Ghulam Akbar of [iS Ner,,, Town received information through ASl Ashraf Ali of PS SBCA that one persorl had shot another at Civic Center in front of Canteen situated near PS SBCA. On such information he left IrS to place of incident where he found that people were gathered near Canteen where Talha Ash::af and Tanveer were also present and they apprehended one person anrl hancled over his custody to him and Talha Ashraf disclosed that the apprehentled person had shot his father Ashraf Ali, On inquiry the apprehended person disclosed his name as Babar Siraj. Talha Ashraf and Tanveer produced one pistol 30 bore n ith four live rounds and one emptv of 30 bore pistol. The pistol was of "NORINCO" bearing No.CAC-35168. Talha Ashraf disclosed that accused Babar Siraj had taken such pistol from the office of Ebrahim Kaka. He conducted further personal search of the accused ancl recovered cash of Rs.500/- and one Nokia mobile. Thereafter, the SIP brought the

accused and recovered properties at police station where he lodged a separat(l FIR against the accused under 5.23(1) of rhe SAA 2013.

4.After completion of investigation of Crime No.201 of 2019 I.O. submitterl challan against the accused person for offence punishable uncler section 302/ 34 /1'14 PPC to which he pleaded not guiltv and claimed triat.

5.After completion of investigatiou of Crime No.202 of 2O1g l.O. submitterl challan against the accused person ior offence punishable under section 23(i)(A) of Sindh Arms Act,2013 to which he also pleaded not guilty and clairned trial.

6.The prosecution in order to prove its case examined 05 prosecution Witnesses in Crime No.201 of 2019 anLi 04 prosecution Witnesses in Crinre No.202 of 2019 and in both crimes exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.p.C in which he denied all the allegations leveled against him in both cases. In the murcler case he gave evidence on oath and called tr,,'o DW's.

7- After appreciating the evidence on record the trial court convicted the appellant vide two separate iudgmtnts oi the same date. In one juclgment he u,as sentenced to death and fine whilst in the other iudgment he was sentenced to 7 years imprisonment hence, the appellant has filed these two appeals against the two convictions which arose out of the same transaction albeit were trietl separately.

8.The facts oI the cases as rvell as evidence produced before the trial court find an elaborate mention in tlre impugned judgments both dated 07.02.?O2t passed bv the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessarv repetition.

9.After reading out of the e\.idence u'hich was allegedly recorded separatell in the murder case u/s 302 PPC and the illegal Arms case under S.23 (1) SSA 2013 which lead to the two separate judgnrents which were decided on the same dav we observed that the evidence of the'4 PW's recorded in the Arms case was identical to the evidence which thev had given in separate murder case. [n fact it appeared that the evidence was rt'old for lvord and was the result of a copv anel pasting of the evidence which clearh indicated that 4 PW's had only appearetl once in the witness box and there eviclence was simply placed on the file in the other case which was contrary to la\^ .

I

10.When we brought this to the attention of learned counsel for the parties and asked them what the legal consequences of such action, if any, were learnecl counsel for the appellant stated that it had no impact and that both cases woulcl be decided on merit or in the alternative its impact was the acquittal of the appellants in both cases. On the other lrand learned ApC and the complainant stated as a matter of law this was a case of remand as the two cases ought to have been tried together and one comnton jLrdgment given; that each witness as a matter of law had to appear in the wittless bor in each case and their evidence could not be copied and pasted as e'r'idcnce in another case and as such both the impugneri iudgments should be set asicle and remanded back to the trial court for a complete re trial iointlv. Irr this respecL they placed leliance on the cases o[ Safeer alias Ali Dino v. The state (SBLR 2021 Sindh 1358), Ghulam Hussain and others v, The State (1996 P.Cr.LJ 514), Nur Elahi v. The State and others (pt.t) 1966 Supreme Court 708), Azad Khan and another v. The State (2004 yLR 1076), The State v. Khan Muhammad @ Khanan & others (SBLR 2005 Sindh 379), Khalid Mehmood alias Khaloo v. The State (2022 SCMR 1148) and The State v. Khan alias Khanan and others (2005 Ir. Cr.LJ 811).

11.We have considered this matter and find that the learned trial iudge errecl in not making both offences part of the same charge since they arose out of the same transaction at the same time ancl not holcting a ioint trial where only one set of witnesses would be examinetl anel one consolidated iudgment handed down in respect oI all offences charged. The trial court had sufficient power to do so under Section 234,235 and 239 (<1) Cr.PC the logic being to avoid conllicting judgments. This court in the case of Safeer alias Ali Dino (Supra) has deprecated such Practice as adopted bi/ the trial court in this case. We have also fountl that if separate trials are held as a matter of law each rvitness must give his evidence irr each trial and that his evidence in one trial cannot be copied and pasted for use in another trial as we find happened in this case.

72.There is a plethora of casc lau,to support our above finding as cited above by the learned APG and the conrplainant and we onlv cite the example of Azad Khan (Supra) which held as under atP.1077;

"4. We hat'e heard tlrc Adtocate t'or the appellants, State counsel and penrxd tle rcconl of tltis case aery carefully. Ltarned Aduocate for the appr:llntrts ltlls stated that the procedure adopted by the trial Court ittlrc trial of bofh the cases li,las against tlte prolrision of lau and nftcr recording thc statement ol uitnesses in,

one case the copies of tlk, said statentents ruere placed on tle recorrl of another case, uhith r not pcrmissible under the lazp as such, the appellants haae been prtiudictd, therefore, lrc has prnyed that tht cases may be remanllcd to tfu h.ial Court for rctrial.

5.Learned State coltnsel nlier going through the depositions of tpitnesses in both the cnses has conceded the aboae position and has .further added that the trial Court has committed itlegality in plnang copies of the depositions of zoitnesses recorded in one casc, in tle fle of second case arul thnt the said illegality is not curable under section 537, Cr.P.C.

6.We lnt e gizten dna considerntion to the arguments and hm,e miruttely examined the statenents of three u'itnesses recorded in both the cases. They nrt: P.l\t.l, A.S.J Melnr Ali Shnh, Maslir, P.W.2, S.H.O. Muhnmnnd Aslant, complainnnt and P.W.3 Line Offcer Muneer Ahtned. lnt'estigathg Offcer. We f.nd that the said three ruitnesses nre common in both the cases, Their statements tpere recordul on the one ind same date in both tlv cases. Tlr exantinatnn Ltf tht statenrcnts reueals that examination- in-chief, cross-examinntion, Ttnragrnphs, sentences, constructiotl and placement of ench sentences and uords of each xntence nrc same, (except openirtg senteno nnd one tpord in 1511, line of the deposition of P.W.2) tohiclt is not possible uhen the stntements of same u,itnesses are recorded on the same dnte but at dffirent times. Therefore, it is clenr that after recording the stateruents of witnesses in one cnse, the copies of the deposition of the said tpitnesses tere prepnred nnd plnced in the record of otlw case. Tha said procedure is in dolntiotr of prouisions of section 353 Cr.P.C. and Articles 70 nnd 71 of tlrc Qanun-e-Shahatlat Order, 1984. From the said procedurt,, tln tnal Courl, in fact lns rend the etid.ence of one case in olher inse uhich is nol permissible under the latp. The said proceLlure rc highly objectionable nnd has no sanctihl of lnto.

7.In ttietp of the ohott circtonstances, the submissions made by the learned. adtocate.for tlrc nppellanls houe great force, as such tlte mode adopted by the tnnl CorLrt in conducting these cases is illegal, trllich has ?itiated. tlk trutls.

8.In tlte case of Noor N/luhnntmad t. State PLD 1981 Lahore 60, where some portion of lhe stat(, ents of tuitnesses were copies t'rom one case and placed on the rccord o.[ another case then in such situation il uas held thot tlrc tials of both the cases uere illegal and the said dcfect rns not t'urable under section 537, Cr.P.C., thtrefore, tlu Court orrlered t'or the retial ofboth tlv cnses.

9.ln the case ol Aln Sht'r tt. State 1977 PCr,Ll "1078 in thc similar situation the Court ordered .for the retial of the cases and nt page L085 obsented as follou's:

..ln all aborc fiw mses, the nidtnce consists of the statements o.!: Khnn Mir, P.W.1 nnd At Ahmad Ali, S.H.O. P,W.2 nnd recotteries. The nidence lus been recorded in o nreclnmcnl fashion. It ftppears that the entirc et'idence wns retorded once and fi,e copies tere prepared,

\3q

and filed in tlifferetn cases' Tle judgnrents lmp'e L also been

toritten in that mecl nnical .fnslion ' case of Mttl'nrnnnd Yotnris rt In stnte PLD 1'953 Lnlnre 'i)1,'ii and i-i *,porad that il there are cotnmon iudgments ;;i;r"r, is copies, tlrc trial utns snitl to be illegnl' uiz itt i:.3' ,,iolotion of tinndatory prottisions of xction .Sr;P | - -1 of thr Euideflce Act' Stntrla y' u1 nnrl sections 137 nnd 138 Court itn lllahi tt. Stnte PLD 1966 SC 708 the Suprertrc 'disnpprouetl tfu proceehre tolwreby tltc u'idu.tce of co.nnnort zpitnisses tpas tecortled oncc only mtl their stnk'ttrnt.s u'ere Waheetl r'' read out in the other cnscs Siriil'trly' in Abdul State 1968 PCr.Ll 776 ttlrcre tlrc et'idence of Hnndu'r.itirtg original Exoert' tplto tttas contnnn in ttoo cnses' and rulnse 'tniirgn tons plnced on Lle rccorrl of aloyted tlte cnse ,irirtii*,, .otltr. htcl u ,n iu,'' r:op1l, the .procedurc itnt nlitlnted the tt'inl, intl retrinl uttls ordered ln case o'f '1971 '119 tle Qdandar Klmn t'. State PLD Peshazpar only h one Jnfument of conutwt tpitnesses tpere recorded placed o,tt tlrc reonl case nnLl tle carbott cttpies tlereo.f tlere oiii orl", ciises. Il rr)ns tu.kl ih'rt tlrc proe ure mloptcd uas illegol."

10.We agree tpith tht' nbot'e Pro1ositton oj laru'tl,lr,rded Conse,4u,entlV' lo tlk' ,ri, set nrii, tlrc conz'rctitttrs tltt(l sentences rpitltotrt totrclntrg tlut nrerits of tlt casr 11d remanl nooellants, 'doiir-r)r'r'r^tJt of tltc u'idenct" for retrinl irori the stnge o.f rccording Tlu appenls nie nllotoetl in tlrc nbot'c ternts" ' 13.Assuchlvefindthatthedeficienciesn'hichwehavePointeLloutalrovt: vitiated both the trials ancl are not curable under Section 537 Cr't)C alrtl have accused antl as such both the such rleficiencies have causecl preiutiice to the irnpugnett judgments are set asir'1e anc'l the confirmation reference is answelecl in the negative

l)islt L' t 'rrrti 1-t. IloIll rrl tht'se ciiscs .ll!' r('11]'lll(i('Li h'ltL tLr tllt' \l( lL' '\LlLIl Sessitllls]lr.liitIl(.rrac[rit:.rstrr,hi.hisllit.r,ttt,ttltlIl.tL.trt'ajtlirrteh.rrgcitlrtl;r,..lt offence antl then complete a de novo trial within 3 rnonths of the date of this lhe R&P's of each case shall oller tirrough one cousolidatecl iuclgment Sessions Jutlge 1 Karachi East along with a L)e sent to MCTC/Addl. District antl

copy of this order for compliat-rce'

The appeals are disposer--l of in the alrove tert-lts

J

15 lu+rL pil;t o I DI

I CE

L