1993 PLP 51 (SCMR)

JUSTICE ABDUL SHAKURUL SALAM (CHAIRMAN): ‑‑Leaving aside details not necessary for disposal of this appeal, relevant facts are that the order of acquittal of the appellants by the learned Judge, Special Court for Speedy Trial, Rawalpindi dated 30‑9‑1991 was set aside by the learned Supreme Appellate Court, Rawalpindi vide judgment dated 13‑11‑1991 and case remanded to the said Special Judge for retrial from the point at which he had last left the case on 25‑9‑1991 so that he can summon and record further evidence, as stated in para.11 above, and after examining all the accused once again under section 342, Cr.P.C. and, recording their statements on Oath under section 340(2), Cr.P.C., if any given, and their defence, if any desired to be produced, to finally give judgment in the case". In pursuance of this order; the learned Judge examined two Court witnesses namely Farooq Ahmad Inspector F.IA. and 1nam Ellahi, Deputy Superintendent Customs as C.W.2 and C.W.3 respectively. He recorded the statements of the accused under section 342, Cr.P.C. Three defence witnesses namely Shaukat, Sharif and Muhammad Aslam were examined as D.W.3, D.W.4 and. D.W.5: The defence evidence was closed on 18‑12‑1991. The case was adjourned to 19‑12‑1991. Arguments were heard on the said date and the case was adjourned to 22‑12‑1991 for pronouncement of judgment. Before this date, the Federal Government vide Notification dated‑ 21‑12‑1991 transferred the case to the Special Court for. Speedy Trial Court No.II Lahore.. The learned Judge of the transferee Court heard arguments on 5‑7‑1992, 7‑7‑1992 and 8‑7‑1992. The learned Judge "considered it essential to summon the Regional Director, Narcotics Control Board,. Islamabad and Farooq (C.W.1), Inam Ellahi (C.W.2) and (C.W:3) Income Tax Officer, Kharian and Bank Officer UBL School Road Branch, F‑6 Islamabad for the just decision of the case". Statements of newly called Court witnesses, namely, Kaleem Iqbal, Assistant Vice‑President and Manager UBL School Road Branch F‑6 Markaz Islamabad, Saud Ahmad Mirza, Regional Director Pakistan Narcotics Control Board, Islamabad and Nawazish Hussain Shah, Assistant Income Tax Officer, Kharian were recorded as C.W.4, C.W.s and C.W.6 respectively. After recording the testimony of the recalled Court witnesses and of the newly called Court witnesses, the learned Judge heard further arguments and thereafter pronounced judgment convicting the appellants and sentencing them vide order dated 12‑9‑1992. This is challenges in anneal by the convicts.

2. Learned counsel appearing for the appellants relying on "Anand Parkash v: Emperor" AIR '1934 Lahore 631, "Kundan Lal v. Emperor" AIR 1934 Lahore 648 and "Majibar Rahman and others v. The State" PLD 1961 Dacca 96 submitted that after recording the testimony of the aforesaid Court witnesses, the learned Judge should have examined the appellants under section 342, Cr.P.C. with reference to the incriminating evidence brought on record against them and allowed them an opportunity to lead evidence in defence, also‑in‑view of the express order of remand made by the learned Supreme Appellate Court, Rawalpindi on 13th November, 1991.

3. Learned counsel for the State has conceded that the appellants should have been examined under section 342, Cr.P.C. after recording the fresh evidence of the Court witnesses but contended they had no right to produce evidence in rebuttal.

4. We have heard the learned counsel for the parties. Not only according to the principles of law after recording fresh evidence the accused appellants were entitled to be pointed out the incriminating pieces of evidence and examined, but the directions of the learned Supreme Appellate Court quoted above were explicit that the learned Special Judge "was to summon and record further evidence, as stated in para. 11 above, and after examining all the accused once again under section 342, Cr.P.C. and recording their statements under section 340 (2), Cr.P.C. if any given, and their defence, if any desired to be produced, to finally give judgment in the case". This having not been done after recording fresh evidence, resulting in prejudice to the accused appellants as the freshly recorded evidence was relied upon in convicting them, there is no option but to allow this appeal. The impugned judgment is set aside and the case is remitted to the learned Judge, Special Court for Speedy Trial No.II, Lahore, to examine the accused appellants with reference to the incriminating pieces of evidence freshly recorded under section 342, Cr.P.C. and to proceed further in accordance with the directions given in the earlier order of remand dated 13‑11‑1991. The appeal is accordingly disposed of. N.H.Q./68/SA.C Case remanded.