2021 P Cr (PLP)

IRSHAD ALI SHAH, J.

The appellants by way of instant appeal has impugned judgment dated 29.10.2014, passed by learned Judge, Anti-Terrorism Court, Shikarpur, whereby they have been convicted and sentenced to various terms as are detailed in the impugned judgment, for having deterred the police party of P.S Muhammadpur Odho by making fires at them with intention to commit their murder, after having formed an unlawful assembly, thereby SIP Ghulam Hussain Muree and PC Ayaz Ahmed lost their lives while PC(s) Muhammad Safar, Shah Muhammad, Abdul Nabi, HC Sahib Faqir, ASI(s) Hafeezullah, Abdul Aziz and Allahdad Kalar sustained fire shot injuries.

2. At trial, in first instance, on arrest, accused Khadim (died at trial), Daim (from him was also secured unlicensed gun) and Qasim were reported upon by the police to face trial for the above said offence, they did not plead guilty to the charge. It was amended, on arrest of accused Lakho alias Lakhmir and then complainant SIP Muhammad Bachal, PWs ASI Allahdad, ASI Hafeezullah, Medical Officer Dr.Imdad Hussain, HC Sahib Faqir, HC Abdul Rasheed, ASI Abdul Aziz, Medical Officer Dr.Santosh, Tapedar Haq Nawaz, ASI Rahim Bux, HC Abdul Nabi and PC Nasrullah were examined. On arrest of accused Jano alias Jan Muhammad alias Noor Hassan, the charge was amended for second time. Yet no disclosure of murder of SIP Ghulam Hussain was made therein, who as per complainant SIP Muhammad Bachal and PW/injured ASI Abdul Aziz died of said injuries later-on in hospital at Karachi. Be that as it may, thereafter, the learned prosecutor by making statement adopted the evidence which was already recorded and then closed the side.

3. After closure of prosecution side, the statements of accused were recorded under section 342, Cr.P.C., wherein they denied the prosecutions' allegations by pleading innocence; they did not examine any one in their defense or themselves on oath to disprove the prosecutions' allegation.

4. When the case was at the verge of its disposal, the learned prosecutor by way of filing applications under section 540, Cr.P.C., one after other, recalled and re-examined PWs ASI Allahdad, ASI Abdul Aziz, ASI Sahib Faqir, HC Abdul Rasheed, ASI Hafeezullah, SIP Bakhtiar, HC Muhammad Salleh, complainant SIP Muhammad Bachal and then closed the side of the prosecution again by way of making statement requesting therein that the evidence of PWs Dr.Imdad Hussain, Dr.Santosh, Tapedar Haq Nawaz, ASI Rahim Bux and HC Abdul Nabi recorded already be treated as same.

5. The statements of the accused under section 342, Cr.P.C. were recorded again, wherein they pleaded innocence, examined none in their defence or themselves on oath to disprove the prosecutions' allegation.

6. After recording statements of the accused under section 342, Cr.P.C., PWs ASI Allahdad, ASI Abdul Aziz, ASI Sahib Faqir, HC Abdul Rasheed, ASI Hafeezullah, SIP Bakhtiar, HC Muhammad Salleh and complainant SIP Muhammad Bachal were recalled and re-examined at the instance of prosecution obviously under section 540, Cr.P.C. Surprisingly, PWs ASI Allahdad and ASI Abdul Rasheed adopted their examination-in-chief, while evidence of PWs Dr.Imdad Hussain, Dr. Santosh, Tapedar Haq Nawaz, ASI Rahim Bux and HC Abdul Nabi recorded already, was impliedly adopted by the prosecution once again, which is against the spirit of section 231, Cr.P.C. which prescribes that, if the charge is altered, added or amended, then the witnesses already examined are to be re-called and re-examined, on point of alteration, addition or amendment so made in the charge. In the present case, on recalling ASI Allahdad and ASI Abdul Rasheed adopted their examination-in-chief, which obviously was in violation of mandate contained by section 353, Cr.P.C., which prescribes that the evidence (which includes examination-in-chief, cross-examination and re-examination) of witnesses shall be taken in presence of accused facing trial.

7. The omission in charge and the procedure adopted at trial by learned trial Court being incurable, have not only occasioned in failure of justice, as is defined under subsection (b) to section 537, Cr.P.C. but have prejudiced the State and the accused in their defence seriously, which is against the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which guarantees chance of fair trial and due process to every person for determination of his civil rights and criminal charges.

8. In case of Zahid Karim and others v. The State and others (2005 PCr.LJ 998), it has been held by Honourable Lahore High Court that; "Ss. 353 & 537

Trial held in absence of accused at a place other than the notified place

Validity

Trial Court had recorded the statements of five prosecution witnesses in the absence of accused and at a place other than the notified place of the trial, i.e., Central Jail, in violation of the mandatory provisions of S. 353, Cr.P.C.

Such contravention of the provisions of S. 353, Cr.P.C. could not be termed as an error, omission or irregularity so as to be curable under S. 537, Cr.P.C., as it was nothing but a downright illegality vitiating the relevant proceedings of the trial of accused

Convictions and sentences of accused were set aside in circumstances and the case was remanded to the Trial Court for recording the statements of the said five prosecution witnesses afresh within the premises of the relevant jail in the presence of accused and then to decide the case afresh in accordance with law."

9. The learned counsel for the parties when were confronted with the above said legal infirmities, were fair enough to consent for remand of the case for fresh/de novo trial.

10. Based upon above discussion, the impugned judgment is set-aside and the case is remanded to learned trial Court for fresh/de novo trial, in accordance with law with direction to dispose of the same expeditiously, preferably within three months, after receipt of copy of this judgment, by providing chance of hearing to all the parties.

11. The instant appeal is disposed of accordingly. JK/D-4/Sindh Case remanded.