Mohammad Sallah Khan & another (Applicant) VS The State (Respondent)

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IN HIGH UI{T OF SINDII, CUIT CO URT, A

t CrI. Revision Application No.D-13 of Z0ZO

PRESENT:

Mr. Justice Mohammad Karim Khan Agha, Mr. ]r.rstice Zulfiqar. Ali Sangi,

Applicants : h,Iohamnrad Sallah Khar-r & another, through Messrs Asif AIi Abdui Razak Soomro and $afdar Ali Ghouri, Ativocates.

Respondent : The State, through Mr. Mohammad Noonari, Deputy Prosecutor General.

Date of hearing :18.02.2021.

Date of ]udgment' :78.02.2027.

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il[oharfllnail Kafim Khgtt Aghq, [;-- This crirninal revision application is directed against the order dated 13.10.2020, passed by learned Judge, Anti- Terrorism Court, Larkana in Special Case No.11/2009 re-The State v. Ali Sher Leghari & others (the impugned order), whereby the applications/ objections filed on behalf of applicants/accused with a prayer not to allow the Prosecution to examine the PWs given up in the earlier rounds of trial was dismissed.

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2.This issue very much revolves around the accused right to an expeditious and fair trial and the ability of the prosecution filling in lacuna's in its case over a prolonged period of time.

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3.The applicants were bookerl in a very serious crime of murder where it is alleged that the applicants and about 50 others attacked a police check

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post which lead to the death and injury of a number of police officers and some of the attackers.

4.It is to be noted that this court had very recently granted post arrest bail on hardship grounds to two of the accused after they had been in custody for nearly 10 and LL years respectively with the trial being no where in sight of conclusion due to no fault of their own' S. The concise factual background as to how this case has been proceeding before the trial court is set out below for ease of reference;

(a)As many as 76 accused were nominated while 25 / 30 persons were

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shown as unknown accused in the FIR. Initially, two accused namely AIi Sher and AIi Hur alias Huroo were arrested and after usual investigation, the case was challaned, showing above-named two accused in custocly while the remaining were shown absconders.

(b)After receipt, the charge was framed against two accused namely Ali Sher and Ali Hur aliss Huroo on 29.01..2011 and their separate pleas were recorded, but in the meantime co-accused Fida Hussain alias Fidoo was arrested, hence Amended Charge was framed on 20.11.2011. Thereafter, prosecution examined complainant Noor Mustafa and other PW's at Exs. 26,28,29,30 and thereafter learned prosecu tor/ADPP for the State submitted a Statement dated 18.04.20L3 whereby he gave up P.ws (1) PC Zahid Ali, (2)PC Moula

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Bux, (3)PC Husain Bux, (4) PC Mohammad siddique, (5) PC Zahoor, 6) pC Murtaza and 7) PC Bashir Ali, stating therein that they are formal witnesses.

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\qo i -)r (.) Later ory another co-accused Asif alias Asoo was arrested and sent

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was up to stand trial, as such Amended Charge dated 3L'01'2014 framed against four accused Persons namely AIi Sher' Ali Hur nlias

Fluroo, Ficia Husain alins Fidoo and Asi f nlias Asoo' Thereafter' the l giving up learned ADPP submitted a statement dated 30.08'2014, p.ws PC Zahid Hussain, Pc Hussain Bux, PC Mohammad siddique' PC Zahooruddin, PC Ghulam Murtaza, PC Bashir Ahmed and P'c Sharif was Moula Bux. Thereafter, deposition of P.W SIP Mohammad and recorded at Ex. 41 and of other P.ws at Exs. 42,45,47,48,49,50 51., and in the meantime vide statement d'ated 11'11'201'4 at Ex' 43' ground that he is P.W SIP Ghulam Ati Leghari was given uP on the statement dated a formal witness and subsequently vide another 07.04.2015 at Ex.52 learned ADPP submitted statement of giving up

P.w PC Nazeer on the ground of his mental ailment'

(d)It is worthwhile to pinpoint here that earlier vide statement

dated 18.04.2013 learned Prosecutor had stated that PC Zahoor and hence Ahmed and PC Ghulam Murtaza are formal witnesses 540 Cr'P'C they were given up, but later on vid.e application ds v learned ADPP prayed for recalling P.Ws PC Zahoor Ahmed and Pc of SIP Ghulam Murtaza as material witnesses' Then, deposition Ahmed and Mehboob AIi Brohi was recorded, PC Zahoor learned ADPP surprisingly vide another statement dated 15.05'2015 gave up PC Ghulam Murtaza. Then, deposition of P'w Dr' ldrees' Dr' Mushtaque Ahmed was recorded, P.W Dr. Muhammad younis. Thereafter, learned ADPP AzizAhmed and HC Mohammad uP Inspector suhmitted a statement dated 04.02.2015 and gave are formal Muinuddin and PC Kamran, stating that both witnesses in the case and also submitted a separate statement at grving up PC Noorullah channa, then vide another statement at giving uP Tapedar Riaz Hussain Ansari'

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(.) It is pertinent to mention that surprisingly learned

ADPP

submitted an application under Articre 46 of eanoon-e-shahadat Hussain Ansari' but order calling and examining same Tapedar Riaz ADPP closed *n" later on vide statement dated 20.04.2016 learned , /

lq\ have €f side of prosecution, stating therein that the material witnesses been examined.

(f)Thereafter, statements of accused vvele recorded and then D'W

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Manzoor Ahmed Leghari was examined, D.w Abdul Hameed and

D.W Gul Hassan and then the defence side was closed vide statement dated 31.05.2016.

(g)At this stage in our view the Prosecution should have heard since arguments on behatf of the parties and rendered a iudgment many years had already passed whilst the accused remained in custody.

rendering

(h)At this stage however instead of hearing arguments and judgment as is so often the case when at the end of the trial the most likely prosecution realised that there are lacuna's in its case and learned ADPP had not proven its case beyond a reasonable doubt the submitted, an application us/ 540 Cr.P.C requesting to oPen case of

prosecution and recalling and examining given up witnesses , Khan' namely SIP Noor Mustafa, P.W Dr. Abdul Rauf, PC Pandhi then HC Ashique Ali, Pc Abdul Kareem, which was allowed and Khan' P'W complainant Noor Mustafa was examined, P.W Pandhi and then vide Ashique Ali, P.W Abdul Kareem, P.W Dr. Abdul Rauf closed and statement dated 27.10.20L6 the Prosecution side was again statements u/s 342 Cr.P'C $/ere recorded and again Ahmed depositions of D.ws Gul Hassan, Abdul Hameed, Manzoor r rere recorded and then defence side was closed vide statement dated 29.10.2016.

the trial

(i)At this stage howevel once again it was incumbent on and rendered court to have heard the final arguments of the parties judgment especially as the accused had spent even more time in

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by the trial custody and the Prosecution had been given the chance evidence in court to call some previous given up witnesses to give order to fill in any lacuna's in its case' h

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fi)Unfortunately, this was not the case' Instead during final that injured P'w sIP arguments, it was pointed out by the prosecution the learned trial court vide Ghuram Ali Leghari was given up, as such s 540 read with section ,^ order dated 24.12.20|6 exercised PoweIS u/ all the parties and then vide z6s-FCr.p.C. and invited objections from order dated 09.03.2017 issued directions to summon iniured P'W SIp was examined as court Ghulam AIi. Thereafter, P.I{ Ghulam Ali closed and again witness and again the prosecution side was q/s 342 Cr'P'C and again statements of four accused' were recorded Hameed and Manzoor depositions of D.ws Gul Hassan, Abdul Ahmed were recorded'

on the trial to

(k)once again in our view again it was incumbent parties and rendered iudgment have heard the final arguments of the more time in custody and the especially as the accused had spent even chance to fill up the lacuna's prosecution had been given yet another previous given up witnesses in its case by the trial court to calr some lacuna's in its case' to give evidence in order to fill in any (1)onceagainhoweverthisdidnothappenandbeforethe another accused Zulfiqar Ali pronouncement/ delivery of judgement, up to stand trial' (applicant No.2) was arrested and sent (m)AsamatteroftheirrighttoanexpeditioustrialunderArticle of the right to a fair trial where 10(A) of the constitution and as a part favoured child under the law the accused is always regarded as the given countless chances to fill especially as the prosecution had been of accused had already spent up any racuna,s in its case and a number point for the reasons mentioned yeafs in custody we find that at this separated the trial of the existing above the triar court should have and' pronounced fudgment accused from the newly arrested accused r inrespectoftheaccusedwhohadalreadyundergonetrial.

not to adopt this course and (n) Unfortunatel|, the trial court decided charge against five accused (the instead framed yet another amended trnrice ovel and the four whose trial had virtually been completed ?

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newly arrested accused) and in this new round of trial' firstly

complainant Noor Mustafa was examined, PW Abdul Karim' P'W pandhi Khan, P.W Ashique Ali Gopang, Dr. Abdul Rauf, P'w Zahid Ali, P'W ,A Mumtaz AIi, P.w Zahooruddin, P.w Riaz Ahmed, Pw

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Ghulam Ali Leghari, P.w Mehboob AIi, P.W Moula Bux'P'W Mohammad Ismail, P.W Dr. Mushtaque Ahmed, P'w Dur Mohammad,, P.w safdar Ali Brohi, P,w sIP Mohammad sallah

Gopang, and P.W Dr" Aziz Ahmed'

(o)In the meantime, applicant/accused Mohammad Sallah was

arrested and sent up to stand trial. once again instead of separating effect a third trial his trial from the other accused who had suffered in charge was framed and spent 7 to I years in jail yet another amended and prosecution examined numerous witnesses, who were examined

in previous rounds of trial and the learned trial court straightaway summons to all and without request of learned prosecutor issued already given the prosecution witnesses, including those who u/ere that up and for whom the learned Pro$ecutor had already stated on behalf -t, their evidence was formal, as such, obiections/ application trial court' of applicants dated 07.09.2020 was filed in the learned praying therein to cancel summons for recording but the same depositions/evidence of already given uP witnesses, was dismissed vide impugned order dated L3.10'2020' Learned counsel for the applicants contended that the impugned

applicants to a fair and order be set aside as it violated, the rights of the and that the learned expeditious trial under Article 10 (A) of the Constitution the pro$ecution to trial court was consistently through its conduct allowing and other co- fill in the lacuna,s in its case to the prejudice of the applicant v accused. on the other hand leaned DPG fully supported the impugned

order.

the record as well as 7 We have heard the parties, carefully considered the relevant law

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8.At the outset we would like to emphasize that under Article 10 (A) of the Constitution the accused are entitled to both a fair and expeditious trial and the onus always lays on the prosecution to prove its case beyond a reasonable doubt without being given opportunities to fill in lacuna's in its case which would benefit the prosecution and prejudice the accused. Trials cannot be never ending where an accused who under the law is innocent until proven guilty remains unnecessarily in jail pending conclusion of their trial. As mentioned earlier in this case we have already granted bail to two of the accused who have spgnt almost 10 and L1. years in jail with the trial being no where in sight of completion.

9.We find that based on the background of the case as narrated above this situation could have been avoided because the trial court had at least {t two opportunities to separate the trial of the accused from those accused who were later arrested especially as all the evidence in such trials had already been lead. By such course of action in effect the accused are being denied their right to an expeditious trial as per conunand of the Constitution.

10.It appears that the charge has been framed and reframed at least on 4 separate occasions and on at least two occasions all the prosecution and defence evidence had been lead and the trial was ripe for rendering judgment. This potentially gave the prosecution an advantage to their witnesses as when on each occasion the trial started from scratch they had the opportunity to improve their evidence and be ready to counter the cross examination of the defence which they had heard on numerous occasions which prejudiced the defence. As mentioned above by continually re starting the trial from scratch on 4 separate occasions the applicants had to under go

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years on end in custody despite having the right of an expeditious Further preiudice was also caused to the accused as since the trial had been completed twice and was ready for arguments and iudgment the prosecution from had advance notice of the entire defence case prior to the trial restarting scratch when the charge was amended once again and as such the

prosecution were given a considerable advantage to the detriment of the

accused

11.Before a case is prosecuted. the Io's are bound to collect sufficient evidence to prove the prosecution case beyond a reasonable doubt, this

evid,ence is then scrutinized by the Prosecutor Generals' office and once the

the offences prosecution is satisfied that there is sufficient evidence to prove the court so charged. the case is challaned before the trial court. Before accepts such challan it must also be satisfied that there is a case to answer by

is framed.

+ the accused for the offence so charged and thereafter a charge prosecution to Thus, through this process there ought to be no need for the once it has finished so frequently move applications to call further witnesses with its calendar of prosecution witnesses. such applications prima facie applications are would. tend. to show that in a number of cases where such and at the made that the prosecution case had not been properly PrePared able to prove its end of its case it had concerns that it might not have been case against the accused based on the evidence on record up to the time of

instead of moving its s.540 Cr,PC application. It aPpears that now a days s.540 cr.PC as a fall thoroughly preparing its case the prosecution relies on used. as a routine but in back when it is not the purpose of s.540 cr.pC to be The object of our view only in exceptional cases to meet the ends of iustice. prosecution case which s.540 Cr.pC is NoT to fill in the lacuna's in the prejudices the accused and rewards the prosecution for its lack of k

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preparedness, trial preparation and trial management. In this case we find that in each round of the de novo kial after a fresh charge has been framed the trial court has given countless chances for the prosecution to fill in the -f' Iacund's in its case by not only liberally allowing 5.540 Cr.PC applications but also in allowing witnesses who had been originally given up by the prosecution and classified as non material to be recalled without adequate reason. When a PW is consciously and deliberately given up by the prosecution it is for a good reason. For example, their evidence is not necessary or they would not have supported the prosecution case. Now when we have a trial such as this which has been going on for over LL years with 4 amended charges and in effect 4 de novo trials to allow PW's who had been given up in the past by the prosecution for good reasons to now give evidence it leads to the inference/ perception that the prosecution have been able to win over by inducement or otherwise witnesses who were not initially prepared to support the prosecution case which leads to the perception of the accused not being given a fair trial and being unlairly prejudiced by such conduct aside from further elongating an already lengthy trial where the accused have been in jail for years on end and another absconding accused could be arrested before judgment is rendered and once again as per past practice of the trial court the trial would go back to square one by reframing the charge and a d.e novo trial occurring.

12.In recent times the supreme court has deprecated any opportunity q given by the trial court/High Court to the prosecution to fill in any lacuna's in its case to the detriment of the accused and has even refused to remand such cases to enable the prosecution to fill in lacuna's if allowing the filling in of lacuna's will prejudice the accused.

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13.In the case of Muhammad Naeem V The State (unreported) dated 10.05.2019 in Criminal Appeals 81-L and 82-L of 2017 the Supreme Court held as under:-

"In an adaersarial system the role of the judge is that of a neutral u_mpire, unruffled by emotionil n judge is to ensure fair tiial between the prosecution,a,nd the defence on the basis of the iuidence before it, The iudge should not enter the arena so ns to appear that he is taking sides, The court cannot allow one of the parties to in their evidence or extend a second chance to fiil lacunai a pflrty to improae their cas-e or the quality of the eaidence tendered by them. Any such step would tarnish the objectiuity onld impartiality of the court which is its hallmark. Such fiaored intentention, no matter how well-meaning, strikes at the aery foundations of fair trial, which is niw recognized as . fundamental right under article 1-0-A of our constitution, In the present case the direction of the High Court for obtaining fresh samples of the alleged intoxicating substance and preparing i'fresh report ,f the chemical Examiner amounts to graniing the prosecution a premiurn on its tailure to put up a proper case in the first instance, such iudiciat interuention is opposed to the adaersary principle and offensiae to the fundamental rtgW of -+ fair trial and due process guaranteed under the Constitution. see Dildar u. sate; Painda Gul a. state and state a, Amjad Ali", (hold added),

'1,4. Likewise in this respect in the recent Supreme Court case of Nusrat AIi Shah and other V The State (unreported) dated 20-02-2019 in Criminal Appeal No.24-26-K of 2018 it was held as under:- "The laru is settled by now that a piece of eaidence or a circumstances not put to an accused person at the time of recording of his statement under section 342, Cr,P,C. cannot be considered against the accused person facing the tial. In the case in hand through an act or omissiott of the Court a serious lacuna in that regard had crept into the case of the prosecution and the accused persons could not be prejudiced on account of the said act or omission of the court. Through the impugned iudgment passed by it the Htgh { court had atliweil thai licuna tohe fiil;d throu{h remandlo the detriment of the appellants. The High Court wns expected ta hold the scales of justice in balance and not to titt the snme in faaour of the prcsecution. rn this aieut of the matter remand of the case by the High court to the trial court to filt that lacuna to the detriment of the accused persons has been found by us to be militating against the interests of justice, Threse appeals are, therefore, allowed, the impugned judgment passed by the

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High Court remanding the case to the trial Court is set aside, the matter is remanded to the High Court for deciding the appeals filed by the conaicts against their conuictians and sentences on their merits on tlte basis of the existing record and in accordance with lnrD." (bold added)."

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15.In sununary as discussed earlier in this judgment where the background of the case was set out we find that the state is on the verge of violating the rights of the accused under Article 10 (A) of the constitution in respect of a fair and expeditious trial and potential prejudice is being caused by the prosecution to the accused by allowing witnesses who were previously given up by the prosecution again to give evidence which raises the inference/ perception that these already given up prosecution witnesses may have been won over by the prosecution or induced by the prosecution in favor of the prosecution to the prejudice of the accused and are filling up the lacuna's in the prosecution case. In particular the first two accused who + were originally arrested and whose case was ripe for final arguments and rendition of judgment as these given up witnesses would not have even been a part of their case but are now being used against them.

1,6. Thus, based on the particular facts and circumstances as narrated in the background to this case and above discussion we set aside the impugned order and direct the trial court not to allow any of the PW's who had already been given up by the prosecution on 24.04.2016 at which time the prosecution filed a statement closing its side as based on the particular facts and circumstances of this case there is a high chance that by allowing them to t'

give evidence at this belated stage for the reasons mentioned above is likely to cause severe prejudice to the accused. The trial court is also directed to expedite and complete this extremely old trial at the earliest and if any other accused absconder is arrested or surrenders consider separating his trial

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and fair trial where no from the current triar in the interests of an expeditious no preiudice is caused to undue advantage is given to the Prosecution and q+r

.{ the accused. In short no prosecution witness who had already been given

between the original up by the prosecution at some stage of this case charge being framed until the ratest charge being framed (even if he was

carled to give evidence at subsequentry auowed to give evidence) can be this trial'

18.02,2020 which is set 17, These are the reasons for our short order dated out below for ease of reference;

, For reasons to be record.ed later, the impugned order dated is direct*d to complete the trial 13.10.2020 is set_aside. The trial Court have already been given expeditiously without calling witnesses, who this order be sent by fax up, in the past by the pro**.Ltion. A copy of matter since it has to triar Court, who shau expeditiously decide this been pending for manY Years'"

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