1995 PLP 1704 (MLD)

2. According to the prosecution case, during the night between 13th/14th of November, 1993, at about 3‑45 a.m. the accused entered the house of complainant Mst. Anis Jan (wife of P.W.2 Mumtaz Ahmad) situated in Ismail Colony, Lane No.2, Sirki Road, Quetta, and committed Haraba by taking away an amount of Rs.32,

000. Report about the incident was made at 4‑15 a.m. the same day at Police Station, Gawalmandi, Quetta (F.I.R. No.108 of 1993). According to the complaint, an unknown person with muffled face had pointed pistol from the window and asked the complainant to open the door, which order was obeyed by the complainant. According to the complaint, the assailant pointing pistol at the one‑year old son of the complainant robbed her of cash amount of about Rs.50,

000. At the time of incident, P.W.2 Mumtaz Ahmad husband of the complainant, was in Abbottabad and he came to know about the incident having been committed in .his house. In her evidence, complainant stated that, on return of her husband from Abbottabad, they checked the account and found that the amount taken away was Rs.32,000 and in this regard they informed the police through a letter exhibited as Exh.P/1‑A.

2. According to the prosecution version, on 15‑11‑1993 i.e. one day after the incident, the accused brought prosecution version, amount of Rs.30,000 to P.W.5 Aurangzeb and deposited the amount with him as `Amanat' and that this amount had been robbed by the accused from the house of the complainant a day earlier on 14‑11‑1993. The accused was arrested on 23‑11‑1993 and, according to P.W.2 Mumtaz Ahmad and P.W3 Babar Iqbal, on 23‑11‑1993 the accused pointed out the place of the robbery and where he had hidden before he robbed the complainant. These two witnesses were not cross‑examined as the application moved on behalf of the accused by his Advocate for adjournment on the ground that he had been engaged recently and was not prepared was rejected by the trial Court. P.W.4 Haji Muhammad Arshad, has given evidence that on 23‑11‑1993 he had seen the accused standing alongwith police in Ismail Colony, Quetta and that the accused had told the witness about the deposit of Rs.30,000 with P.W.5 Aurangzeb (maternal uncle of Haji Muhammad Arshad) and that Muhammad Nazeer had demanded this money from Aurangzeb in the presence of police and that he had signed Exh.P/4‑A about the amount having been demanded by the accused from Aurangzeb and the said amount of Rs.30,000 having been given to Aurangzeb which was taken into custody by the police.

3. In support of the, present appeal, it has been argued on behalf of the appellant by Mr. Mehinood Mirza, Advocate, that the appellant had been seriously prejudiced on account of rejection of the application for adjournment of the trial on the day when P.W.2 Mumtaz Ahmad and P.W.3 Babar Iqbal had been examined and this resulted in miscarriage of justice. It was further argued on behalf of the appellant that the factum of recovery of Rs.30,000 from P.W.5 Aurangzeb and evidence given by P.W.4 Haji Muhammad Arshad are not true and in that context an application had been filed for bringing on record certified copy of the statement given by Haji Muhammad Arshad in another case of the same Police Station, Gawalmandi, Quetta (F.I.R. No.110 of 1994) in which case also the present appellant Muhammad Nazeer is an accused and also the statement of A.S.I. Muhammad Sarfraz son of Muhammad Hussain in the said other case of F.I.R. No.110 of 1994. It is pointed out by 'learned counsel for the appellant that according to A.S.I. Muhammad Sarfraz, who was the Investigating Officer in the other case, the present accused was in custody in the police in the police station and as such the evidence about his being taken out and going to Ismail Colony on 23‑11‑1993 could not be correct. Statement of A.S.I. Muhammad Sarfraz has been recorded in the other case by the learned Additional Sessions Judge‑II, Quetta, on 24‑11‑1994 and that of Haji Muhammad Arshad on 2‑11‑1994. Evidence in the present case had already been recorded earlier.

4. In my view it is an appropriate case for remand to enable the appellant to cross‑examine P.W.2 and P.W.3 and also to give an opportunity to further cross‑examine P.W.4 and that A.S.I. Muhammad Sarfraz son of Muhammad Hussain be also summoned as a Court‑witness. The learned Advocate‑General, Balochistan, agrees that for just decision of this case the matter should be remanded for the aforesaid purpose.

5. As a result, the impugned judgment, dated 22‑11‑1994 is set aside and the case is remanded for fresh decision with following directions:‑‑‑ (a) P.W.2 Mumtaz Ahmad son of Faqir Khan and P.W.3 Babar Iqbal son of Muhammad Ibrahim be recalled and the appellant given an opportunity to cross‑examine these two witnesses; (b) P.W.4 Haji Muhammad Arshad son of Haji Muhammad Azim be also recalled and opportunity given for further cross‑examination of this witness on behalf of the accused; (c) A.S.I. Muhammad Sarfraz son of Muhammad Hussain of Police Station, Gawalmandi, Quetta, be called as a Court‑witness and examined in the light of his evidence recorded in the case F.I.R. No.110 of 1994 of Pofce‑Station, Gawalmandi, Quetta; (d) Further statement of accused be recorded under section 342, Cr.P.C. and if he wants to give further statement on oath the same may also be recorded. This is an old case of 1993. It is directed that the case on remand be finalized and the judgment delivered by 31‑8‑1995 and an intimation of disposal of the case be sent to the Assistant Registrar, Federal Shariat Court, Branch Registry, Quetta. Jail Criminal Appeal No.78/Q of 1994 stands disposed of in the above terms. N.H.Q./986/FSC Case remanded.