1989 PLP 2745 (MLD)

M. Muhammad Murad for Appellant. Bashirullah Khan, Addl. A.‑G. for the State. Date of hearing: 2nd June, 1987.. FAIZ MUHAMMAD KHAN, J.‑‑ On the report lodged by Hazarat Shah in Police Station Saddar, Mardan, on 23‑9‑1979 at 11‑30 hours a case under section 302/34, P.P.C. was registered against two persons, namely, Wahid Shah and Zahir Shah, out of whom Zahir Shah, appellant before us, was attributed the role of effective firing at Gulbar Shah deceased, father of the complainant, and Wahid Shah was attributed the role of `Lalkara'. According to material on record both the accused absconded after the occurrence. Wahid Shah accused was later arrested and stood trial in the Court of Additional Sessions Judge, Mardan, but by the judgment dated 3‑7‑1980 he was acquitted of the charge as the prosecution case was found to be doubtful against him. After his acquittal, Zahir Shah accused, appellant herein, was arrested. He also stood trial in the Court of Additional Sessions Judge, Mardan, and on conclusion of the trial the learned trial Judge, by the judgment dated 7‑1‑1986, finding him guilty of having committed the crime, convicted and sentenced him to life imprisonment and also to pay fine of Rs.5,000 or in default to suffer R.I. for one year. The fine, if recovered, was directed to be paid to the legal heirs of Gulbar Shah deceased as compensation under section 544‑A, Cr.P.C. The convicted accused was also allowed the benefit of section 382‑B, Cr.P.C. Against his conviction and sentence Zahir Shah has come to this Court in appeal.

2. While hearing this appeal, the learned counsel appearing for the appellant (Mian M. Murad, Advocate) raised an objection that the evidence in this case had been recorded by the learned trial Judge by adopting illegal procedure in that while recording the statement of each witness, the witness was not examined afresh and his statement already recorded at the trial of Wahid Shah had in substance been copied down in this case. This procedure adopted by the learned trial Judge was illegal and incurable under section 537, Cr.P.C., with the result that the trial stood vitiated and the conviction and sentence awarded to the appellant, for that reason, could not have been awarded. He read before us the statements of material witnesses from both the files in order to convince us that the record prepared in this case was almost a verbatim copy of the record prepared in the case of Wahid Shah with slight modifications here and there with ‑a view to giving it a look of independent statement recorded at the trial. At this stage, we invited Mr. Bashirullah Khan, the learned Additional Advocate- General, appearing for the State, as to what was his view about the evidence recorded at the trial of this case. He also frankly, and rightly so, stated that though the evidence recorded at the trial could not be called a carbon copy of old statements of the witnesses recorded during the trial of Wahid Shah, yet, it appears that without application of mind the statements of witnesses appearing at the trial were recorded in mechanical way through statements already given by them at earlier trial. Our own observation with respect to these statements is also the same, as we are convinced that had the statements been recorded independently then the witnesses would not have stated the facts in the same sequence and in the same manner in which they have mentioned them at earlier trial. The learned Additional Advocate‑General also took us through question No.2 put to the appellant while recording his statement under section 342, Cr.P.C. in order to point out that Gul Badshah was not the father‑in‑law of Zahir Shah appellant but he was the father‑in‑law of Wahid Shah (acquitted accused) and that while recording this question and answer given to it by the appellant the above‑stated facts have not been kept in mind and since Wahid Shah had owned Gul Badshah (deceased) as his father‑in‑law in the reply given by Zahir Shah appellant also he was also shown to be his father‑in‑law. This thing clearly indicates that at the trial the learned trial Judge mechanically recorded questions put to the accused‑appellant and also replies given by him thereto, and same can be said about the statements of the witnesses recorded at the trial. That being so, on such evidence the conviction of the appellant could not have been based and the procedure adopted being illegal, and also being incurable, could not be endorsed. Muhammad Younas's case P L D 1953 Lah. 321 is an authority on the point, which we respectfully followed.

3. While taking this view of the matter, and since properly and legally recorded evidence is not before us, we cannot advert to the merits of the case. The consequence which would flow from it is that the proceedings, as also the conviction and sentence of the appellant,‑stand vitiated.

4. While accepting this appeal, therefore, we would set aside the conviction and the sentence of the appellant and remand the case to the learned trial Judge for holding fresh trial with respect to appellant with the direction that each witness tendered in evidence by the prosecution shall be freshly and independently examined by the Court and thereafter the case shall be re-decided in the light of evidence which may come on the record in the light of observations ale above. We further observe that since the appellant (accused) was on bail at the time of holding trial, the learned trial Judge would be at liberty to grant him this concession by an appropriate order. The accused shall be produced before the learned trial Judge on 15‑6‑1987 for further orders in the case. Office is directed to immediately send the record to the learned trial Judge. S.A./804/P Retrial ordered.