BASHIR AHMED S/O KARIM BUX (Appellant) VS THE STATE (Respondent)

INTHEHTbHGO uRpern-s INDH, KARACHI Present:

Mr. lustice Naimatullah Phulpoto, Mr. lttstice Mohammad Kartm Rhan Agha

Spl. Cr. A.T. Appeal No. 112 of ZOlg; t* Spl. Cr. A.T. Appeal No. L68 of ZlL$ Confirmation case 0U2019

Appellants Bashir Ahmed and Abdut Majeed through Mr. Abdul Razzak, Advocate Respondent Through Mr. Muhammad Iqbal AwarU Deputy Prosecutor General.

Date of Hearing 24.01,.2019 Date of Announcement 06-02-2019

IUDGMENT

Mohammad Karim Khan Agha. L- The appellants Bashir Ahmed son of Karim Bux and Abdul Majeed alias Bhoro son of Rehmat AIi, were tried by Anti-Terrorism Court No.II, Karachi for offence under Sections 302/ 376-II, 364-A/34 PPC r / w S.7(e) of the Anti-Terrorism Act, 1997 (ATA) registered at I{S Joharabad, Karachi. After full- dressed rrial vide judgment dated z0-0s-2018 (the impugned jrdg*ent) appellant Bashir Ahmed was convicted and awarded death penalty subject to confirmation by this court and appellant Abdul Majeed alias Bhora, who had common intention with accused had kidnapPed deceased Alishba and raped her as such he was awarded imprisonment for life under Section u/s.7 (e) of ATA,lgg1.

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The benefit of Section 382-B Cr.P.C. was also given to appellant Abdul Majeed.

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2.The brief facts of the case according to FIR No.261 /2011 lodged by one Muhammad Nazeer, who is complainant, at 15 Joharabad on 1,4.12.2011, at about 1800 hours are that he 1ives in r".ffir.:''

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3tl House No.314, Block-ls, F.B. Area, Karachi Joharabad. On 12.12.?011, he was in his house when he received information at 5:00 pm that his niece Alishba aged about six years at about 05:00 pm had gone out of the house to play at Eidgah ground but had not returned home. Since she had not returned the whole family was worried and tried to find out her whereabouts but without success. The children of the Mohalla told him that she had gone for a camel ride and on 14.12.2A11, the family of Jamal Mirza who had come to his house informed him that two camel people had taken one child on the camel hence his case is against those accused persons whose name and residence were unknown and requested that action be taken against them for kidnapping his niece.

3.After completion of investigation, police submitted challan against the accused in the Anti-Terrorism court No.II, Karachi. The charge was framed against the accused on 16.04.2013 to which they pleaded not guilty and claimed trial of the case.

4.The prosecution in order to prove its case examined 12 PWs and tendered a number of exhibits in evidence.

5.Statements of accused were recorded u/s. 342 Cr.P.C. in which th*y have denied the allegations and claimed/professed their innocence. They have neither examined themselves on oath nor led any defence.

6.After a full blown trial the trial court convicted and sentenced the appellants as mentioned earlier in this judgment.

7.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 25.05.20L5 passed by the trial court, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

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8.During the reading of the evidence and the impugned judgment we obsenred that the trial court has erred in sentencing and convicting the appellants in not recording separate convictions in respect of each offense for which the accused were convicted in violation of 5.367 (2) Cr.PC. As such, we sought the assistance of the learned counsel on this issue. Learned counsel for the Appellants t- and the State both conceded that that the convictions recorded did not appear to be in accordance with the law and as such contended that the case should be remanded to the trial court for re-writing the convictions and sentences in accordance with the law.

9.We have taken into account the contentions of learned counsel for the parties and have also considered the relevant law.

10.5.367 Cr.PC which appears in Chapter XXVI of the Cr.PC under the headirg " Of Judgments" provides as under:

"367. Language of judgment, Contents of judgment, (1) Eaery such judgment shall, excrpt as otherwise > expressly proaided by this Code, be written by tlte presiding fficer of the Court [or from the dictation of such presiding fficerl in the language of tlte Court, or in English; and shall contain the point or points for determination, tlte decision thereon and the refisons for the decisian; and shall be dated and signed by the presiding officer in open Court at tlw time tf pronouncing it and wlwre it is ruot written by the presiding officer with his own lrand eaery pnge ,f such judgment shall be signed by him.

(2)It shall specfy the olfence (if any) ,f which, and the section of the Pakistan Penal Code or other law under which, the accused is conaicted, and the punishment to which he fs sentenced,

(3)ludgment in alternatiae.lNhen tlu conuiction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two }, parts of tlte snme section of that Code tlte ffince falls,

3b tlu Court shnll distinctly express the snmq and pnss judgment in the alternatiae, -

(4)lf it be a judgment of acquittal, it slull state the ffince of which tlv accused is acquitted and direct thnt he be set at liberty.

(5)lf the accused fs conaicted of an offence punislmble with death, and the Court sentences him }- to any punishment other than death, tlu Court shall in its judgment state the reason why sentence of death was not passed,

(6)For the purposes of this section, an order under section 1,L8 or section 123, sub-section (3), shall be deemed to be a judgment" .

11.For our purposes 5.367 (2) Cr.PC which we have emphasized by addirg it bold above is the most relevant and is again set out below for ease of references.

o5.367 (2) It shall specfy the offence (if any) of which and the section of the Pakistan Penal Code or oths law under which, the accused is conaicted, and the punishment to which he is seflteficed",

12.In essence/ 5.367 (2) Cr.PC provides that for each offense for which the accused is charged and convicted the separate sentence as prescribed by law must be recorded for each conviction. The logic behind this section is that some offenses may be compoundable whilst others may not be and thus if all the sentences are jumbled up for each conviction it witl be unclear whether the offence/sentence is compoundable or not.

13.For example, in the instant case the appellant Bashir Ahmed was tried by Anti-Terrorism Court No.II, Karachi for an offence under Section 302/376-II, 364-A/34 PPC r/w.S.7(e) of the Anti-

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B-l Terrorism Act, 1997 (ATA) registered at I?S Joharabad, Karachi and was convicted and awarded death penalty.

'1,4. Thus, the appellant Bashir Ahmed appears to have been convicted u/s 302/376-II, 354-A/34 PPC and u/s 7 (e) ATA and awarded the death penalty subject to confirmation by this court.

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15.The aforesaid sections under which he has been convicted read as under:

'302 PPC. Punishment of qatl-i-amd. Wneaer commits qatl-i-amd shall subject to the prouisions of this Chapter, be -

(a)punished with death as qisas;

(b)punished with death or imprisonrnent for life &s ta'zir haaing regard to the fact and circumstaruces of the cnse, if the proof in eitlter of the forms specified in section 304 is not aaailable; or

(c)punished with imprtsonment ,f eithw description for a term which mny extend to twenty-fiae yenrq where according to thl Y- Injunctions of lslam the punishment of qisas is not applicable.

Proaided thnt nothing in this clause shall apply to tlrc offence of Qatl-l-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the cnse may be".

'376 PPC. Punishment fu rnpe. (1) Wtoeuer commits rnpe shall be punished with death or imprisonment of either descriptian for a term which shall not be less than ten years or more than twenty-fiae years and shall also be liable to fine,

(2)VVhen rape is committed by two or more persons in furtlrcrance of common intention of all, each of such persons shall be punished with death or imprisonment for life'i

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3g '364-A PPC. Kidnapping or abducting a person under the nge of fourteen. lNln eaer kidnaps or abducts nny person under the age of fourteen, in order thnt such person may be murdered or subjected to grieaaus hurt, or slaaer4, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grieuous hurt, or slaaery, or to the lust of any person shall be punished with death or with imprisonment fo, life or with rtgorous t imprtsonment for n term which mny extend for fourteen yefrrs and shall not be less than seren yeilrs",

oS.7 ATA 1,997. Punishment for acts of teruorism. - (1.) lMoeaer commits an act of terrorism under section 6, wlrcreby

(e)the ffince of kidnapping far ransom or hostage- taking has been committed, shall be punishable, on conaiction, with death or imprisonment for life.

1,6. As can be seen the above sections of the PPC and ATA respectively deal with separate offenses which provide for separate punishments/sentences upon conviction. Thus, when a person is

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convicted of any offense the trial court u/s 357 (2) Cr.PC is obliged under law to record a separate sentence for each and every offense for which he is convicted. Such sentences may run concurrently or consecutively. The benefit of 5.382 (B) Cr.PC may be applicable for some offenses; likewise S.544-A Cr.PC relating to compensation may be applicable to other cases. In any event, a sentence in accordance with law must be recorded in respect of each and every offense for which the accused is convicted.

17.It is settled law that under 5367(2) Cr.PC it is mandatory for the court to record a separate conviction and sentence for each offense for which the accused has been charged which has not been done in this case through the impugned judgment.

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18.In this respect reliance is placed on the case of Irfan V Muhammed Yousaf (2016 SCMR 1190) which held as under at

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"In terms of section 367, Cn.P.C. it n)frs mandatory fo, the Court to record separate conaiction and sentence fo, each offence. It could neither be constraed nor was it permissible to hold that the

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accused persons u)ere impliedly sentenced under section 7(a) of Anti-Teruortsm act, 7997. Such legal aspect of aital importance, conaeniently escaped fro* the notice of the Tial Court and tlu High Court. Both the offences under sectians 302 arud 404, P.P.C, were compoundable and when the State/prosecution had not talren frny exception to the legal erroL so committed by the Trial Court and thereafter by tlu High Court in the first round of litigation then, at present belated stage of compromise before tht Supreme Court, it could not agitate thnt the necessnry modification be made in the conaiction and sentences of the accused persorus and they be furtlwr conuicted and sentenced under section 7(a), Anti-Terrorism Act, 1,997, frs well, because the matter was not past and closed transaction and could not be re-opened" .fuold added)

19.Thus, as a matter of law we agree with the contentions of the learned counsel and order that the case be remanded back to

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Leamed Administrative Judge of the ATC's at Karachi through MIT II of this court and order that the Administrative Judge immediately transfer the case along with R&Ps to the author of the impugned judgment and if the author is no longer a sitting ATC Judge to a new sitting ATC Judge with a direction that the convictions and sentences in the judgment be properly recorded in all respects in accordance with the relevant law within two months of receipt of the case and R&Ps. As such, the confirmation reference is answered in the negative.

20.We have obsenred that such an error in law is not unconunon when the trial courts are convicting the accused for offenses and }\ then handing down sentences. As such the office shall transmit a

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coPy of this judgment to all ATC Judges in Sindh for information and compliance.

21.In view of the above all the appeals and confirmation reference are disposed of in the above terms.

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