2011 PLP 23 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This appeal by leave of the Court is directed against the judgment dated 19-3-2007 vide which a learned Division Bench of the Lahore High Court dismissed appellant's appeal and confirmed the death sentence awarded to the appellant for the double murder of Muhammad Hussain and Saif Ali deceased in the case registered vide F.I.R. No.432 dated 22-6-1997 under sections 302/324, P.P.C. at Police Station Rawat, District Rawalpindi (judgment of the trial Court is dated 30-5-2000). The prosecution story as given in the impugned judgment is as follows: "The brief facts as narrated in the F.I.R. (Exh.PC/1) by Ziaraf Ali (P.W.10) real son of the deceased Saif Ali are that on 22-6-1997 at 7-00 a.m. he along with his father Saif Ali were ploughing in the fields, were going to attend a Jinaza at Miana Thub after coming out of their house. When they reached at a distance of 50 yards, Abdul Ghafoor son of Ghulab Khan appellant came while armed with .12 bore carbine and alarmed Muhammad Hussain that he would not be left alive. Simultaneously, he fired a shot of .12 bore carbine upon Muhammad Hussain deceased and the pellets hit him on the upper side of the right eye, forehead and nose. Muhammad Hussain fell down and succumbed to the injuries. Manzoor Hussain, to save himself, ran towards the complainant. Abdul Ghafoor appellant chased him. Saif Ali father of the complainant asked the appellant not to be cruel. Thereupon, the appellant replied that he also used to help Muhammad Hussain deceased and, therefore, he would also not be left alive. Then he fired a shot of carbine on Saif Ali deceased which hit him in the chest and face. Sail' Ali deceased also fell down and succumbed to the injuries. The complainant and Manzoor Hussain went towards Dhoke for safety when Abdul Ghafoor appellant chased them. Meanwhile Mahboob Hussain, who was coming out of his house, was alarmed by Abdul Ghafoor appellant that he had committed the murder of his father and he would not leave him alive. Abdul Ghafoor appellant fired a shot with carbine at Mahboob Hussain, which hit him on the left knee, who fell there. Abdul Ghafoor appellant went to the fields while raising lalkaras and brandishing carbine.

4. The motive behind the occurrence was alleged that Abdul Ghafoor appellant and Muhammad Hussain deceased were real brothers, who were having a dispute of land. The appellant also used to extend threats to Saif Ali deceased that he had already murdered Ghulam Muhammad brother of the appellant about 20/21 years before and now he would also not be left alive."

2. During trial the prosecution examined 13 witnesses out of which two are eye-witnesses namely P.W.10 Ziaraf Ali and P.W.11 Manzoor Hussain. The accused when examined under section 342, Cr. PC denied the prosecution story and gave his own version to the effect that "on the later part of night between 21/22 June, 1997 after making preparation have attacked upon my house and dishonoring my daughter Robina surrounded my house in the darkness. I on search of said Robina got upon and tried to save her life while taking her in the room I was hit by a fire-shot on my back side, however, I managed my kids to hide under cots in the room which I bolted from inside then started firing from window panes in the meanwhile, I also received injuries at the hands of the complainant party in the darkness. My injuries were suppressed by the prosecution through making fabricated medico legal report, injury statement and F.I.R. etc. On account of this highhandedness, I requested the jail authorities to carry out my medical examination in order to establish the fact that I received fire-arm injuries in the occurrence of cross-firing and the pellets/foreign body item are lying in my body but of no avail. Copy of my application in this regard is Exh.DC/1 and

2. Thereafter being deprived of justice, I also moved an application before the Anti Terrorism Court but of no consequence. Copy of the application is Exh.Dd/1 and

2. The case is a counter blast of the actual occurrence".

3. One of the issues raised by appellant's learned counsel was that the two eye-witnesses remained uncross-examined by the appellant and that sufficient opportunity swas not given by the trial Court to produce his counsel; that even if the conduct of appellant's learned counsel before the trial Court was contumacious, the learned trial Court could have directed the appellant to make alternate arrangements so that the witnesses arc cross-examined without which it would be unjust to sustain conviction on a capital charge.

4. Learned counsel for the State in all fairness submitted that since the witnesses were not cross-examined and as they are the only two crucial witnesses, the State would not oppose the prayer that the matter be remanded to the trial Court to provide an opportunity to the appellant to cross-examine those witnesses.

5. We have heard learned counsel for the parties and have also gone through the judgment as well as the evidence on record.

6. Admittedly both the eye-witnesses namely P. W.10 Ziaraf Ali and P.W.11 Manzoor Hussain were not cross-examined. The learned High Court adverted to this aspect but held that the appellant is to be blamed as sufficient opportunities were given to cross-examine these witnesses. In paragraph 16 of the judgment, the learned High Court observed as follows:-- "We may also mention that the examination-in-chief of the two eye-witnesses namely Ziaraf Ali (P. W.10) and Mansoor Hussain (P.W.11) was recorded on 24-11-1998 and thereafter at least 10 opportunities were granted to the defence, which failed to cross-examine the said witnesses and even no application under section 540, Cr.P.C. was ever moved to the learned trial Court for re-summoning these two eye-witnesses for the purpose of cross-examination. Even no application was moved before this Court for the said purpose although seven years have already passed when the impugned judgment was passed. So this court cannot discard the statements of both P.Ws. 10 and 11, which have gone unchallenged while the presence of P. W.12 at the spot was stamped by the injuries sustained by him during the occurrence, which cannot be doubted."

7. With immense respect to the learned Judges of the High Court, we are persuaded to hold that it is the primary responsibility of the court seized of a matter to ensure that the truth is discovered and the accused are brought to justice. If the learned trial Court found that the counsel engaged by the appellant had sought too may adjournments, even then he was not appearing, the court could either have directed that a defence counsel be provided to the appellant at State expense or could have given last opportunity to the appellant to make alternate arrangements failing which the court would proceed to decide the matter. This course was not adopted by the learned trial Court and instead on 2-12-1999 gave a total surprise to the appellant by asking him to cross-examine those witnesses for which obviously' neither the appellant had the requisite expertise nor he was prepared to do so. In these circumstances and in view of the fair concession given by the State, we find that the procedure adopted by the learned trial Court is reflective of miscarriage of justice and the appellant be provided one opportunity to have the afore-referred witnesses cross-examined. Consequently, this appeal succeeds on this short ground. The impugned judgment of the learned High Court dated 19-3-2000 and that of the learned trial Court dated 30-5-2000 are set aside. The case is remitted to District and Sessions Judge, Rawalpindi who shall either proceed with the matter himself or entrust the same to Additional District and Sessions Judge. The appellant shall be treated as under trial prisoner. He shall be given one opportunity to cross-examine the two witnesses referred to in paragraph 6 above and thereafter the court shall decide the matter within 15 days of the said opportunity given. The parties are directed to appear or arrange representation before the District Judge for 20-5-2010 who shall proceed with the matter in terms of this order. N.H.Q./A-89/SC. Case remanded.