1995 P Cr (PLP)

Date of hearing: 10th October 1994. Shad Khan son of Khyabaz Khan resident of Landi Wal Tribal Area, Kohat was tried for the murder of Awwal Daraz Khan son of Gul Daraz Khan and was convicted under section 302, P.P.C. and sentenced to life imprisonment and a fine of Rs.50,000; in default of payment of fine to undergo further R.I. for 2 years the amount of fine was ordered to be given as a compensation to the legal heirs of the deceased; the benefit of section 382-B, Cr.P.C. was also awarded; in case F.I.R. No.8 of 1986, Police Station F.I.A./ S.I.U., Islamabad vide judgment dated 22-4-1991 of the learned Additional Sessions Judge, Rawalpindi.

2. According to the prosecution Mr. G.M. Falki, Community Welfare Attache, Embassy of Pakistan, Riyadh, Saudi Arabia vide his letter No. CWA.II (88)/26-Jail, dated 7th April, 1986, intimated the Director General, F.IA., Islamabad regarding deportation of Shad Khan, appellant and stated therein that Shad Khan, appellant killed another Pakistani Awwal Daraz Khan son of Gul Daraz Khan; the appellant was facing trial in Saudi Arabia and nobody followed the case from the deceased's side and no remission papers of blood money were received, therefore, His Majesty King of Saudi Arabia vide Royal Decree No.421/M/1/9, dated 6-3-1406. H ordered to hand over the accused to Embassy of Pakistan; hence the appellant is being deported to Pakistan; by P.IA. Flight No.728, alongwith a letter duly translated by the Deputy Governor, Saudi Arabia for information of Director General, F.IA., Islamabad,. It was further intimated that other record that is first report, medical report and death certificate will be forwarded as and when received from the Ministry of Foreign Affairs, Kingdom of Saudi Arabia. Accordingly a case under section 302, P.P.C. was registered and investigated by the F.IA., Islamabad.

3. The investigation of the case was entrusted to Abdul Khalaq Khan, D.S.P., the then Inspector, F.IA (P.W.7), who after completion of the investigation submitted an incomplete challan and prayed that supplementary challan would be submitted soon after receipt of documents mentioned above pertaining to the investigation/trial of the appellant in Saudi Arabia.

4. The prosecution examined as many as seven witnesses in support of its case. P.W.4 Saif Ullah and P.W.5 Ahmed Noor were produced as eye witnesses who were residing with the appellant in Saudi Arabia. They supported the version of the prosecution. Rest of the witnesses were produced as formal witnesses. None of the witnesses were produced to verify the contents of the attested copies of first report and death certificate.

5. Learned counsel for the appellant contended that occurrence took place in Saudi Arabia; neither first report (F.I.R.) nor other documents like post-mortem report were relevant, draftsman who prepared the sketch of the spot or recovery witnesses of the weapon having been exhibited or produced, there was no material before the learned Additional Sessions Judge which can be relied on for the purpose of convicting the accused. Learned counsel further contended that it is an admitted fact that the appellant had undergone the ordeal of this criminal trial in Saudi Arabia for four years and for eight years in Pakistan, as such no second trial or conviction was competent as contained in section 403, Cr.P.C It was next argued that in spite of direction by the learned Additional Sessions Judge to the prosecution to collect documents from Saudi Arabia for their exhibition and eventual submission of supplementary challan. Inspector Legal, F.IA. expressed his inability to collect the original record from Saudi Arabia and to exhibit on record the said documents as desired by the learned Additional Sessions Judge and instead requested for decision of the case on the basis of already submitted challan. Learned Additional Sessions Judge, therefore, on the basis of a photo copy of the letter bearing No.36/894, dated 23-10-1988 from the Ministry of Interior in which it was clearly written that the original document regarding the accused had been retained in Saudi Arabia proceeded to decide the case. The learned trial Court admitted all the certified copies relating to the investigation of the case collected by the F.I.A. at the Airport when the appellant was deported including post-mortem report.

6. Learned counsel for the State supported the conviction and sentence of the appellant.

7. I have heard learned counsel for the appellant and learned counsel for the State at length and have perused the record with their able assistance.

8. Contention raised by learned counsel for the appellant is that as documents were- not exhibited as required under law, conviction of the appellant on the basis of said document is illegal and ab initio void. According to section 78 of Oanua-e-Shahadat, 1984. "if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand-writing of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". In the case of a foreign country, the procedure is laid down in section 89(5) of Oanun-e-Shahadat, which reads as under: "Public documents of any other class in a foreign country, by the original, or, by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of a Pakistan Counsel or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of d he foreign country' It is essential that the objection of admissibility of the documents must be taken at an early opportunity to meet the ends of justice by informing the prosecution or other party concerned. In the present case, the plea was taken at an early stage. The documents relied upon and exhibited by the learned Additional Sessions Judge were neither original nor were proved as required under sections 78 and 89 of Qanun-e-Shahadat, 1984 and also did not bear certificate of genuineness and not certified by the representative of Pakistan in B ->; Saudi Arabia as required under the abovementioned sections. Consequently' the documents relied upon by the learned Additional Sessions Judge were not admissible in evidence to prove guilt of the appellant.

9. Without further going into the merit of the case, I am of the view that the learned Additional Sessions Judge erroneously admitted and relied upon certified copies collected by F.IA., conviction based as such on inadmissible C evidence is patently illegal. The prosecution has failed to prove its case against the appellant. As a result of above discussion the appeal is accepted and giving him the benefit of doubt, the appellant is acquitted of the charge. He is on bail. His bail bond shall stand discharged. N.H.Q./S-546/L Appeal accepted.