P L D 1995 Peshawar 103 (PLP)

Khawaja Nawaz Khan and S. Zafar Abbas Zaidi for Petitioner. Abdul Latif Khan Baloch for the State. Dost Muhammad Khan for the Complainant. Date of hearing: 20th February, 1995.

2. The trial commenced and concluded on 6‑5‑1990 when Mr. Abdur Rahman Khan, the learned 'Additional Sessions Judge, Bannu convicted Banaras Khan and sentenced him to imprisonment for life but in absentia because the accused after his statement under section 340(2) Cr.P.C. had gone into abscondence. He was re‑arrested on 4‑7‑1993 whereafter he has filed this appeal on 5‑8‑1993.

3. The legality or otherwise of the conviction and sentence in absentia being besides the point, a preliminary objection has been raised from the side of the complainant that the instant appeal computed from 6‑5‑1990, i.e. the date of conviction, was hopelessly time‑barred. The learned counsel for the appellant, on the other hand, claimed that such miscarriage of justice had occurred in the instant case that the High Court should treat the, appeal as a revision and thus by ignoring the question of limitation should impart justice which was sufficiently denied in the trial Court. In this view of the matter, the burden lies on the convict‑appellant to prove the gravity of the injustice and also to prove that such irregularity was not curable under section 537, Cr.P.C.

4. The discussion which thus touched the merits of the case as well have led us to go through certain circumstances necessary for the discussion of the point in controversy. It is not disputed that the F.I.R. in the instant case was a dying declaration. It is also not disputed that the accused had on 7‑8‑1986' made a confession before a Magistrate (subsequently retracted) stating that the deceased had late at night and early most hours of the morning at 3/4 a.m. entered into his house. By that time the wife of the accused had come out to the courtyard to make ablution whereupon she saw the deceased Noor Ali and rushed to the Kotha inside to inform her husband that man had entered the house. The accused took out a .12 bore pistol and called at the intruder as to who he was. The man scaled over the wall when in the process he was fired at whereupon the intruder who happened to be Noor Ali deceased fell to the other side of the wall which was the courtyard of his house and he called for his own wife. Banaras Khan took up the plea that he had considered the complainant Noor Ali to be a thief and had fired at him under that mis understanding.

5. It is also not disputed that the abovesaid retracted confession was proved from the statement of the Magistrate and thus the only thing proved on record, so far as the mode of proof is concerned, was the confessional statement alone. So far as the most important evidence like the dying declaration (F.I.R.) was concerned, it was never proved at all. The S.H.O named Muhammad Khan who recorded the. F.I.R. at the instance of the complainant was never examined by the trial Court and the judgment is announced without the examination of Muhammad Khan who also was the principal Investigating Officer in the present case. The learned counsel for the appellant argued that Banaras Khan stood convicted despite the fact that the dying declaration was never proved and that otherwise there was no evidence, to support the conviction. That so far as the brother Ayub Nawaz was concerned, according to the very version of the complainant, he had come to the spot upon the alarm raised by the complainant deceased. The learned counsel for the appellant was of the view that appellant was confronted with serious injustice and has been convicted for no evidence against him, and if at all to be convicted, he should have been so convicted on the basis of confessional statement. That these were strong circumstances that required the appeal to be taken up suo motu as revision and to pass the order deemed fit under the law. In the light of PLD 1958 Dacca 111, 1972 PCr.LJ 649 and 1981 PCr.LJ 693 it was claimed that the non‑examination of an Investigating Officer was an illegality not curable under section 537, Cr.P.C. After having evaluated the material on record, we agree to the legal aspect that non‑examination of the Investigating Officer is an illegality not curable, in the circumstances, under section 537, Cr.P.C. We also agree that in the absence of the most material witness of the trial, the learned Additional Sessions Judge has simply not recorded the conviction in accordance with law as well as the facts.

6. Whether, in \the circumstances, this time‑barred appeal could be treated as revision, we are fully inclined to treat it accordingly and our inclination is facilitated through a precedent in Sarwar v. The State PLD 1959 (W.P.) Lahore page 50 where it was held that powers of High Court under sections 435 and 439, Cr.P.C. were very wide and the High Court could rectify the error of illegality at any time. In Muhammad Usman. v. Habibullah Khan PLD 1962 (W.P.) Quetta 5, a time‑barred appeal, initially admitted as an appeal, was subsequently treated as revision. Irfan Shaikh and another. v. The State is a D.B. judgment from Dacca 1971 PCr.LJ 486 where the power of High Court to convert appeal into revision was declared unfettered. The Supreme Court of Pakistan in Syed Manzoor Hussain Shah. v. Syed Agha Hussain Naqvi has ruled that jurisdiction of a High Court under section 439, Cr.P.C._ is always wide. It was very rightly pointed out that in its real purpose a power under section 439, Cr.P.C. is not a mere power but a duty Which cannot be effectively discharged, unless the High Court sees to it that subordinate Criminal Courts conduct their proceedings strictly in accordance with law. The Supreme Court declared it to be a startling proposition that High Court should be disabled from discharging this, very necessary duty simply because a party who could and should have appealed, makes mistake of filing a revision or a party who is adversely affected by result of proceedings has no right to invoke revisional jurisdiction of High Court.

7. The above remarks of the Supreme. Court in 1983 SCMR 775 give such a wide import to the revisional jurisdiction of the High Court that it should, as a duty, rectify every error of the trial Court that happens to cause grave injustice.

8. Consequently, we feel rather duty bound to accept the appeal which is hereby accepted, the conviction and sentence recorded in the impugned order is set aside and the case is remanded back to the Court of Additional Sessions Judge Bannu for examining Muhammad Khan, Investigating Officer and thereafter deciding the case after examining the accused under section 342, Cr.P.C. During this period, Banaras Khan shall remain an undertrial prisoner because he is in the habit of slipping away and even going into ahscondence at the conclusion of trial. 'He be produced before the trial Court on 8‑3‑1995 when the complainant party may also be present there. N.H.Q./1778/P Order accordingly.