2005 P Cr (PLP)

SAEED-UR-REHMAN FARRUKH, J.

This appeal is directed against the judgment dated 21-9-2002 passed by Additional Sessions Judge-II, Kohat whereby the appellants were convicted under section 302(b), Pakistan Penal Code and sentenced to imprisonment for life with a fine of Rs.1,00,000 or in default whereof to further undergo two years' S.I. It was directed that amount of fine, if recovered, half of it would be paid to the legal heirs of deceased as compensation under section 544-A, Criminal Procedure Code. They were also convicted under section 12 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 377, Pakistan Penal Code and sentenced to five years' R.I. plus fine of Rs.50,000 on each count and in default thereof to further undergo one year's S.I. All the sentences were ordered to run concurrently. Benefit of section 382-B, Criminal Procedure Code was extended to the appellants.

2. Relevant facts giving rise to this appeal are; on 23-9-1999 at 18-00 hours Sadal Badhshah P. W.5 made a complaint in writing (Exh.P.A./1) at Police Station Lachi, District Kohat (later on, reduced into formal F.I.R. Exh.P.A.) to the effect that his grandson Syed Muhammad Shafi aged about 5-1/2 years was student of primary school. On the said date he went to school but did not return home which caused alarm. Search was initiated for the missing child. Ultimately, his dead body was found in Bajra Crop. His throat was tied with piece of Baan. The complainant stated that he did not have specific enmity with any one.

3. Investigation was initiated and, ultimately, the appellants, both real brothers, were arrested. During the course of investigation the police got recorded the statements of Raj Gul, Muhammad Ishaq, Zabar Din and Munem Shah Bokhari under section 164, Cr.P.C. After completion of investigation the challan was submitted to Court. Both the appellants were charge-sheeted by the trial Court for offences under section 12 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 377/109, Pakistan Penal Code and section 302/34, P.P.C. They denied the correctness of the charges and claimed trial.

4. At the trial the prosecution produced, in all, 13 witnesses. Statements of Akhtar Rasool P.W.1, Mujahid Ali, S.H.O. Police Station Lachi P.W.2, Zabar Din P.W.6, Munem Shah Bukhari, P.W.9, Muhammad Younas P.W.10, Mama Khel P.W.11 and Hukam Jan S.H.O Police Station Lachi, P.W.12, Muhammad Ali constable P.W.13 are of formal nature and need not be referred to in detail.

5. Said Badshah, S.H.O. Police Station Lachi P.W.3 deposed about various steps, taken by him, during the course of investigation. He stated that he took into possession "Mazri Baan" and also a piece of cloth allegedly used for strangulation, vide memo. Exh.P.C. and so also pair of Chappals of the deceased vide memo. Exh.P.C./1.

6. Dr. Javed Ali Shah, Medical Officer RCH Lachi P.W.4 deposed that he conducted the post-mortem examination of the deceased Syed Muhammad Shafi aged 5/6 years. He found the following injuries on his person:-- "A well-defined ligature mark about 1/2" on neck below the thyroid cartilage encircling the neck horizontally and completely. The groove mark is reddish with ecchymosed margin with abrasion. (a) Subcutinous tissue are found ecchymosed. (b) Muscles of neck were injured. (c) Carroted arteries were ruptured. (d) Laryanse and trachea were congested and fractured. (2) Nail mark and scratches present on neck. Both lateral side. Face was congested." In his opinion the deceased died of asphyxial death due to strangulation. He took anal swabs for chemical examination which were handed over to police. He proved inquest report Exh.P.M, Exh.P.M./1 and injury sheet Exh.P.M./2.

7. Sadal Badshah complainant appeared as P.W.5 and reiterated the facts mentioned in the F.I.R. He admitted that Aziz Gul was the son of Raj Gul and his daughter was married to Aziz Gul. He also conceded that Ishaq was his son and daughter of Zabar Din was married to him. He admitted that Raj Gul had got some enmity with accused party and no compromise had been effected till then.

7. Zabar Din P.W.6 deposed that on 23rd September, at 9-00 a.m. he saw Naeem Khan and Kamran Khan appellants going towards maize field and later on learnt that they had killed Syed Muhammad Shafi. He did not disclose the source of his knowledge as to the murder of the deceased by the appellants.

8. Muhammad Ishaq P.W.7 deposed that Syed Muhammad Shafi deceased was his son and he, on the fateful day went to school but did not return. Search was initiated for the missing child and ultimately his dead body was found at the spot with ligature mark on his neck. He alleged that Kamran Khan appellant had kissed Zulikha Bibi minor daughter of his sister on which Mosa Khan, brother-in-law of his sister had removed the clothes of Kamran Khan appellant to humiliate him. He conceded that he was not eye-witness of the occurrence.

9. Statement of Raj Gul P.W.8 has material bearing on the outcome of the case in that according to him few days after the occurrence three persons namely, Rawat Shah, Masood Shah. Muhammad Karim Shah met him and asked for a compromise with Ishaq as according to them, blunder had been committed by the appellants by murdering Syed Muhammad Shafi. He conveyed this message to Ishaq who did not reply.

10. Muhammad Younas P.W.10 deposed that during the days of occurrence he was posted as A.S.-I. in Police Station Lachi. He attested the recovery memo. prepared during the course of investigation. He also stated that he produced Raj Gul before Illaqa Judicial Magistrate for recording his statement under section 164, Cr.P.C.

11. The statements of the appellants were recorded under section 342, Cr.P.C. They denied the prosecution story in toto and pleaded innocence. On 16-8-2002 additional statement of Naeem Khan appellant under section 340(2), Cr.P.C. was recorded. He was asked to explain as to why he absconded from the spot. He explained that he never absconded and in fact had gone to Karachi for earning livelihood. 12: We have heard the learned counsel for the parties and perused the record with their assistance. It is not necessary to refer to the arguments advanced at the bar by the learned counsel for the parties and to assess and appraise the evidence produced by the prosecution as we have reached the conclusion that the trial stands vitiated due to the failure of the prosecution to examine Raj Gul, Muhammad Ishaq, Zabar Din and Munem Shall Bokhari vis-a-vis their statements made before the Illaqa Judicial Magistrate under section 164, Cr.P.C. on 18-10-1999, (see statement of Said Badshah S.H.O. P.W.3). Whatever the wroth of their deposition during the trial, qua these statements, and its effect on the ultimate outcome of the case, one cannot shut one's eyes to this important development that took place during the course of investigation.

13. Duty of thorough and exhaustive investigation of the case rested heavily on the police so as to enable the Qazi to reach the truth in the trial of the accused. Allah, in His divine wisdom, had laid down rule of universal application on this subject till eternity, in Holy Qur'an as under:-- "

388. O ye who believe! If an evil-doer came unto you with a report, then inquire strictly, lest ye hurt a people in ignorance and repent thereafter of that which ye have done." This principle has been reaffirmed at another place in the Holy Qur'an as under:--

360. And go not there after that whereof thou hast no knowledge. It. was indeed the legal obligation of the prosecution to put these statements to the witnesses and thereafter the trial Court should have allowed the defence to cross-examine them with reference to the same. This was not done. 13-A. Needless to observe that, under the Islamic system of dispensation of justice, in a criminal trial the prosecution is required to produce all the evidence collected by it during the course of investigation before the trial Court for determination of the guilt or otherwise of the accused. It cannot be permitted to skip over/withhold any material piece of evidence and still ask the trial Court to pronounce its judgment in the case. Such a course of action is mandated by the Holy Qur'an and Suunah.

383. And hide not testimony; and whosoever hideth it his heart verily is sinful. And is of that which ye work, Knower.

374. O ye who believe! Be ye maintainers of justice, bearers of testimony for Allah's sake, though it be against yourselves or your parents or kindred. Be he rich or poor, Allah is nigher unto either; wherefore follow not the passion lest ye deviate. If ye incline or turn away, then verily of that which ye work Allah is ever Aware.

14. Consequently, we are of the view that the trial of the case was not conducted in a lawful manner and the impugned judgment is not sustainable. This appeal is, therefore, allowed and the impugned judgment is set aside with the result that the case stands remitted to the learned trial Court with the direction to record the statements of Raj Gul, Muhammad Ishaq, Zabar Din and Munem Shah Bokhari de novo and the prosecution shall be obliged to put the statements of these witnesses recorded by the learned Illaqa Judicial Magistrate under section 164, Cr.P.C. to them with liberty to the accused to cross-examine them qua the same. Rest of the evidence already brought on record shall remain intact. After closure of the prosecution evidence the statements of the accused shall be recorded afresh under section 342, Cr.P.C. with grant of opportunity to them to lead defence evidence, if so desired. Thereafter the learned trial Court shall pronounce fresh judgment on the basis of evidence/material brought on record.

15. Since the case was registered way back in 1999, it is directed that the same shall be decided within a period of two months, positively, with a report to Deputy Registrar (Judicial) Islamabad.

16. The above are the reasons for the short order pronounced on 26-10-2004. H.B.T./76/FSC Appeal allowed accordingly.