1992 P Cr (PLP)

(iii) Under section 324 read with section 336/34, P.P.C. for murderous assault on Liaquat Ali Constable (Resulting in the functioning of his right leg being permanently impaired). Itlaf-i-Adw Salahiyyat-i?-udw by way of Qisas. (iv) Under section 324/34, P.P.C. for murderous assault on Riaz Mahmood P. W.?????????? To undergo R.I. for ten years and a fine of Rs.10,000 or in default thereof to further R.I. for two years. It was further directed that the sentence imposed on the appellant shall not be executed until confirmed by the Supreme Appellant Court. The co-accused of the appellant, namely, Salah-ud-Din alias Billu is an absconder and resultantly he was not tried with the appellant by the learned trial Court.

2. The prosecution version in respect of the offences stated above, briefly stated is as follows:

On the fateful day i.e. 28-7-1991 at about 10-00 a.m. Nisar Cashier received a cash of Rs.4,00,000 (new notes) from Muslim Commercial Bank, Shah Alam Market and left the bank in Cash Van alongwith Muhammad Shaft Driver, Sardar, Muhammad and Sabir Gunman. They were being escorted by Sikandar Ali, Niaz Ali, Niaz Ahmad Constable and Liaquat Ali Constable in the Escort Car. When the Cash Van and Escort Car reached Kissan Street near Kissan Building, two persons emerged all of a sudden armed with fire-arms and they opened fire indiscriminately. As a result of firing, all the four moccupants of Cash Van, namely Muhammad Shafi Driver, Nisar Cashier, Sardar Muhammad and Sabir Gunman died in the Cash Van while Niaz died in the Escort Car and Liaquat Ali Constable received fire-shot injuries. The two persons after committing murders looted cash from the van and ran away. They had encountered with the police at the junction of Street Nos. 9 and 11, Ram Gali which was near Kissan Street. There was cross-firing between the two robbers and police party as a result Iftikhar Ahmad Constable died and Riaz Mahmood, Sub-Inspector, Police Station Akbari Gate received fire-shot injury. Due to this police encounter, the two robbers left behind five bags containing cash Rs.35,48,000 and fled away from the spot. Muhammad Rafiq P.W. entered Ram Gali from the side of Brandreth Road on his motor-cycle No.2936/LOB Yamaha 100 CC of red colour. When he reached Valeema House, one of the two robbers fired shot at him with Klashnikov and the shots hit close to the front wheel of Motor-cycle. That robber pointed Klashnikov towards Muhammad Rafiq and told him to get down. Muhammad Rafiq P.W. got down from the motor-cycle and the robbers rode away towards Brandreth Road. One of the two robbers had placed Klashnikov on his thighs while travelling on motor-cycle and this Klashnikov fell down from the thighs near Ghausia Traders, Dil Muhammad Road, Lahore, which was picked up by Muhammad Iqbal P.W. The two robbers succeeded in running away. Mian Muhammad Arshad, Manager, Muslim Commercial Bank, Circular Road, informed Muhammad Ayub, Manager, Muslim Commercial Bank, Shah Alam Market on telephone that his cash van had been robbed of at about 1-30 p.m. On the receipt of this information, Muhammad Ayub P.W. reached Kissan Street. He found bullet holes on the cash van and escort car. He noted the wind screen and other glasses of cash van and escort car smashed. Before his arrival, the deceased and the injured had been removed to the hospital. Muhammad Rafiq P.W. informed Muhammad Ayub P.W. about the robbery of hit motor-cycle. Muhammad Ayub learnt about the encounter between the robbers and the police employees. He further learnt that the robbers had left behind cash valued Rs.35,48,

000. Muhammad Ayub made statement. Exh.P.H. at Crown Bus Stand before Muhammad Ashraf Zahid, Inspector S.H.O., Police Station Naulakha which was completed at 1-45 p.m. This statement was sent at police station and' formal F.I.R. Exh.P.H./1 was recorded. The S.H.O. took into possession the cash van and escort car. He recovered blood of the five deceased and Liaquat Ali Constable from the cash van and the escort car. He recovered two guns and two bandoliers containing cartridges, which the two gunmen of Muslim Commercial Bank were holding at the time of occurrence. 'He recovered two weapons which the two constables were carrying in the escort car at the time of occurrence. He recovered 24 empties of Klashnikov P.45/1-24 and 9 empties of Mauser P.46/1-9 and 3 empties of M.P.5 P.47/1-3 from the spot and prepared recovery memo PBB. The S.H.O. took into possession five bags containing cash Rs.35,48,000 from the junction of Street Nos.9 and 11 and prepared memo., Exh.P.LL. giving the details of cash, which each bag contained. The robbers had left behind a bag of blue colour containing Chadar and handkerchief, hammer, two magazines of Klashnikov and 20 bullets of Klashnikov and a nylon bag. The S.H.O. recovered blood of Iftikhar Ahmed deceased from this place where encounter with the robbers took place and sealed it in the parcel. The S.H.O. had prepared the rough plan of the place of occurrence and then reached Ram Gali No.2 where motor-cycle of Muhammad Rafiq was snatched by one robber. The S.H.O. prepared rough plan of this place. He learnt that Klashnikov was dropped from one robber who had snatched the motor-cycle. On the receipt of this information he reached Ghausia Traders at Dil Muhammad Road where Iqbal P.W. produced Klashnikov p.36 which he picked up when dropped from the motor-cycle. This, Klashnikov contained 3 bullets P.55/1-3. The Klashnikov was sealed into parcel vide memo. P.V. The rough sketch P.V./1 was prepared of the place where the Klashnikov was picked up. Sketch of Klashnikov was prepared and recovery memo. Exh.P.V. The S.H.O. reached, Emergency Ward of Mayo Hospital where Dil Muhammad, Sub-Inspector produced six death certificates of the deceased and two medical reports of Liaquat All Constable and Riaz Mahmood; Sub-Inspector. The S.H.O. took into possession articles p.25 to p.27 of Iftikhar Ahmad deceased and P.28 to P.30 of Niaz Ahmad deceased and P.31 to P.35 of Liaquat Ali Constable P.W. On reaching mortuary, the S.H.O. prepared injury statements and inquest reports of the six deceased and obtaining permission from Deputy Commissioner as the post-mortems were to be conducted after sunset. The S.H.O. received information about motor-cycle No.2936/LOB. He reached Al-Shams Hotel situated on Link Mcleod Road and found motor-cycle present there. He took into possession the said motor?cycle and prepared memo. P.U. He returned to the mortuary and took into possession the blood-stained clothes and other articles of the deceased and prepared recovery memos. On 29-10-1991, he summoned Draftsman. He got prepared the site plans, Exh.P.KK. and P.KK./1 and added notes on it. He recorded the statements of the witnesses.

3. It was found during the investigation that cash to the tune of Rs.35,000 had been stolen in the occurrence while remaining cash was found in five bags left at the place of second occasion, and from the person of deceased Sabir Hussain Gunman.

4. Wajid Umar accused was charged under section 17(4) of Ordinance VI of 1979 read with section 34, P.P.C. and under section 302/34, P.P.C. on six counts for the Oatl-i-Amd of Iftikhar Ahmad Constable, Niaz Ahmad Constable, Nisar Ahmad, Sardar Muhammad, Muhammad Sabir and Muhammad Shaft, section 324/34, P.P.C. on two counts for murderous assault on Liaquat Ali Constable and Riaz Mahmood, Sub-Inspector and section 353/34, P.P.C. for using criminal force-on public servants with the intention of preventing them from the discharge of their duties as such public servants: The accused did not plead guilty.

5. The prosecution had produced 29 witnesses at the trial Court in order to prove its case against the appellant. However, as at first we shall be dealing with the legal objections raised by the learned counsel for the appellant, to call in question the legality and propriety of the trial in question, therefore, the list of the prosecution evidence is not being reproduced hereat.

6. The first objection raised to impugn the judgment in question pertains to the non-fulfilment of the mandatory requirement of `Tazkiya-al-Shuhood'. It was submitted that the mandatory requirement of `Tazkiya-al-Shuhood' had not been fulfilled in case of P.W.21, Riaz Mehmood and P.W.23, Mushtaq Ahmad, and that although an attempt was made to fulfil the said mandatory requirement by the Court by the said witnesses being put few questions at the end of their cross-examination, yet the accused was not allowed an opportunity to cross-examine the said P.Ws. in respect thereof. It was pointed out that the said P.Ws. were the witnesses of the second occurrence of the same transaction in which the appellant had been sentenced to death as Qisas for the murder of police constable Iftikhar Ahmed.

7. We have perused the relevant record in this respect i.e. the testimony of P.W.21 and P.W.23 and taken notice of the fact that the said P.Ws. were not examined by the Court at the beginning of their testimony to fulfil the requirements of Tazkiya-al-Shuhood. We have further taken notice of the fact that the learned trial Court did put some questions to-the said P.Ws. to fulfil the necessary requirements in this respect at the very end of their respective cross-examinations but had failed to provide an opportunity to the accused-?appellant to cross-examine the said witnesses in respect thereof. We are constrained to observe that the failure of the learned trial Court to allow such an opportunity for cross-examination of the said P.Ws. by the accused?-appellant has badly prejudiced his case.

8. In this respect, we may further emphasize that it is the inalienable right of the accused to impeach the character, integrity and credibility of the witness by confronting him with any material that may establish that the said witness was not a just (Adil) witness, to further prove that the prosecution thus failed to fulfil the essential requirement that there should be two such Adil witnesses to prove a case of Qisas against him. It goes without saying that when requirements of Tazkiya-al-Shuhood are fulfilled before examining the witnesses in respect of the offence charged, the accused has the opportunity to assail their credibility and to establish that they were not Adil witnesses by the process of his cross-examination. Therefore, even if the requirement in respect of Tazkiya-al-Shuhood can be fulfilled even at the end of the testimony and f. cross-examination` of a witness, it goes without saying that even at that stage the accused must be provided with another opportunity of cross-examining the witness in respect of his status as claimed, to be a just/Adil witness. The failure of the learned trial Court to allow the accused-appellant to do so was in violation of the right of the accused to be allowed an opportunity to challenge whatever is brought on the record to support the charge against him, and as such militates against the established principles of administration of criminal D justice and had caused great prejudice to him. Consequently, the learned counsel for the appellant had argued that the present appeal be allowed and the appellant be acquitted of all the offences charged, yet we are of the view that, under the facts and circumstances of the case as highlighted above, it shall be in the interest of justice to remand the case to the learned trial Court for a fresh trial in accordance with the requirements of the law in respect of the Tazkiya-al-Shuhood.

9. We draw strength for our view taken in this respect by placing reliance upon Mumtaz Ahmed and another v. The State P L D 1990 FSC 38 wherein it was observed that the requirements of Tazkiya-al-Shuhood can be fulfilled by remanding the case, if the facts and circumstances of the case so warrant. We further draw strength by placing reliance upon Sanaullah v. The State P L D 1991 FSC 186 wherein the learned Court had exhaustively dealt with the concept, meaning, scope, essentials and procedure of `Tazkiya-al-Shuhood', and as to when it was obligatory. It was held therein that the `Tazkiya' shall be conducted in cases of Hudood and Qisas whether the defendant raises any objections about the probity and credibility of the witnesses or not.

10. It was further observed therein that `Tazkiya' is the responsibility of the Court so that the Qazi may protect himself from the evidence of Fasiq i.e. a sinful person and further to ascertain whether the evidence of the witness is acceptable or not and for the purpose of declaring a witness Adil. It was held therein that Mashhood'alaih (i.e. the accused) shall be given a chance even after Tazkiya-al-Shuhood to prove such charges which are considered hinderance in the way of acceptance of evidence.

11. It has been further stated therein that Tazkiya-al-Shuhood is compulsory in cases of Hudood and Qisas because `doubts cause removal of I Hudood punishment'. Therefore, as stated above, we are of the confirmed view that it is only through the process of cross-examination of a witness in respect of a question asked of him to fulfil the requirements of Tazkiya-al-Shuhood that an accused can, on the one hand, impeach the probity and credibility of a witness and by the same process enable the learned trial Court td fulfil the necessary requirements of inquiry, to reach a conclusion that the witness is a just/Adil witness, and that his evidence need not be discarded but needs to be relied upon to decide the case in hand.

12. The learned counsel for the appellant had also raised the following objections to assail the legality of the impugned judgment. (i) That the statements of the P.Ws. are not on Oath as prescribed by the Oaths Act of 1873, as amended by Federal Laws (Revision and Declaration) Ordinance XXVII of 1981, and that, therefore, the testimony thus brought on record is inadmissible and as such cannot be used against the appellant. (ii) That the statement of the appellant under section 342, Cr.P.C. was recorded by the questions having been framed beforehand as is evident from the space left in between the questions to record the answers thereto, and furthermore as it is not in accordance with the provisions of section 364 of the Cr.P.C. In this respect, further pointed out that the learned trial Judge had not affixed the certificate in his own hand, as required under the provisions of the said section at the end of statement of the accused-appellant recorded under section 342, Cr.P.C. (iii) That the evidence recorded in respect of the offence under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was in violation of the provisions of proviso to section 7 of the said Ordinance, as in accordance therewith it was mandatory to record the statement of the complainant first and all the witnesses thereafter, whereas in the instant case the P.Ws. had been examined first to support the charge and the complainant after them. (iv) That the sentence awarded under section 302/34. P.P.C. was death on six counts on Qisas but that the said incident was not triable-as Qisas as there was only one witness in respect thereof i.e. Liaquat Ali P.W.20. However, as stated above, we have decided to remand the case for fresh trial, therefore, at this stage it is not deemed necessary to deal with these objections.

13. In pursuance to the above discussion, we hereby set aside the impugned judgment and remand the case to the learned trial Court for a fresh trial of the appellant in respect of the offences alleged against him in accordance with law. Case remanded. N.H.Q./34/SAC