2012 PLP 112 (YLR)

MUHAMMAD HASHIM KHAN KAKAR, J.

This appeal is directed against the judgment dated 23rd February, 2011, passed by Sessions Judge, Dera Allah Yar, whereby appellants Muhammad Bakhsh, Zulfiqar, Zulqarnain and Rahim Bakhsh alias Raja were convicted and sentenced under section 302(b) of the P.P.C. to suffer life imprisonment and to pay Diyat amount to the legal heirs of deceased Azizullah, with benefit of section 382-B of the Cr.P.C.

2. The relevant facts, arising out instant appeal, are that on the Fard-e-Bayan (Exh.P/3) of complainant Hidayatullah dated 22nd May, 2010, a case vide F.I.R. No.24 of 2010 (Exh.P/7), under section 302 read with sections 201, 109 and 34 of the P.P.C., was registered at Police Station, Suhbat Pur District Jaffarabad. It was alleged by the complainant that he owned 18 Acres of land, which he has handed over to his son Azizullah for cultivation, due to which his other sons and grandsons used to quarrel with Azizullah and advanced threats of dire consequences. On above date, he, along with his daughters Farzana and Meena Bibi, was present in his house, when at about 6-30 a.m., his son Raheem Bakhsh alias Raja came there, consulted his son Muhammad Bakhsh and grandsons Ghulam Haider, Zulqarnain and Zulfiqar that their father has given the entire land to Azizullah, therefore, he must be killed and thereafter he went away, whereas his son Azizullah also went to the landed property. At about 10-00 a.m., as soon his son Azizullah entered in the house, his grandson Zulqarnain, having spade (Kudal), spit on the face of Azizullah and when Azizullah asked as to why he spit, his son Muhammad Bakhsh, armed with an agriculture tool i.e. 'Tekam', grandsons Ghulam Haider and Zulfiqar, having an Iron rod (Hambi) and spade `Kudal' respectively started beating him and committed his murder and thereafter thrown his dead body in a dirty water dig and buried it with garbage. The complainant further alleged that he and his daughters appealed not to do so, but they could not. Resultantly, aforesaid F.I.R. was registered.

3. After registration of the F.I.R., investigation of the case was entrusted to P.W.7 Qadir Bakhsh, SI, who went to the place of occurrence, exhumed the dead body of deceased, inspected the site, prepared site sketch, secured blood-stained earth, prepared inquest report and sent the dead body for examination to BHU, Sohbat Pur. On 23rd May, 2010, he arrested the accused persons Muhammad Bakhsh, Zulfiqar and Zulqarnain and on the same day, accused persons Muhammad Bakhsh and Zulfiqar made disclosure and on the basis thereof, recovery of crime weapons i.e. spade (Kudal) and Teekam, were effected through recovery memo. On the same day, complainant produced the blood-stained clothes of deceased. He sent the blood-stained earth and clothes to FSL, Quetta for analysis and remanded the accused persons to judicial custody. On 14th June, 2010, he arrested accused Rahim Bakhsh, who made disclosure on 24th June, 2010 in respect of the comission of the offence, at which he prepared disclosure memo and shifted him to judicial custody. Thereafter, he placed the papers before S.H.O., who prepared incomplete challans.

4. On the stated allegations, a formal charge was framed and read over to the accused persons on 23rd November, 2010, to which they did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced seven witnesses. PW-1 Dr. Barkat Ali, Medical Officer, BHU Suhbat Pur, examined the dead body of deceased and issued certificate Exh.P/1. P.W.2 Mst. Meena alleged to have witnessed the occurrence and is also witness of the site inspection note, recovery memos of crime weapons, blood-stained clothes etc. P.W.3 Hidayatullah is complainant of the case, who exhibited his Fard-e-Bayan Exh.P/3. P.W.4 Mst. Farzana and P.W.6 Mst. Shahida also alleged to have witnessed the occurrence. P.W.5 Muhammad Shoaib, constable, is witness to the disclosure memo of accused Rahim Bakhsh Exh.P/5 and P.W.7 Qadir Bakhsh, S.I., is the Investigating Officer of the case. Then the prosecution closed its side.

5. Thereafter, the appellants were examined under section 342 Cr.P.C. They denied the prosecution allegation and claimed to be innocent. They, however, did not opt to record their statements on oath as provided under section 340(2), Cr.P.C. nor produced any evidence in defence. The trial Court, after close of the parties' evidence, vide impugned judgment, convicted and sentenced the appellants, as mentioned hereinabove, hence, this appeal.

6. Mr. Abdul Jalil Lehri, learned counsel for the appellants, argued that there is no incriminating evidence available on record, tending to connect the appellants with the commission of crime. The evidence produced by the prosecution is self-conflicting and self-contradictory and on the basis thereof, no conviction could at all be recorded. He further contended that the medical certificate with regard to injuries is totally contradicted to ocular version, which has created serious doubt, but the trial Court, without any proper application of mind, convicted and sentenced the appellants.

7. Mr. Kamal Khan Kakar, Advocate, representing the state, opposed the arguments of appellants' counsel and contended that the trial Court, after proper appraisal of evidence and record, has rightly convicted and sentenced the appellants.

8. We have heard the learned counsel for the parties and have perused the record with their valuable assistance. At the very out set, we painfully observed that it is a textbook example case of malpractice, resulting miscarriage of justice. The defence counsel has cross-examined P.W.6 Mst. Shahida in the following manner:

It can easily be inferred from the above trend of cross-examination that either the defence has joined hands with the prosecution or the evidence has been tampered with by the staff of the trial Court with male fide intention or no attention was paid by the Presiding Officer at the time of recording the statement or may be a result of typical/clerical mistake, showing inefficiency of the staff. It is a case under section 302 of the P.P.C., which entails capital punishment of death or life imprisonment, as such, even if it was/is a typical or clerical mistake, it was obligatory upon the Presiding Officer of the trial Court as well as the defence counsel, after going through the contents of said cross-examination, the same should have been rectified. There is no cavil to the proposition that the Courts of law are not to sit entirely unconcerned during the proceedings like an unthinking statue nor is a Court, holding a criminal trial expected to act only .as a dummy, leaving it to the contestants to do what they like. The main purpose of the entire judicial proceedings is to find out truth, arrive at a correct decision and to see that no innocent person is punished merely because of certain technical omission(s) on his part or on the part of his counsel. In case of capital punishment, the accused must be given reasonable opportunity of rebutting the evidence so brought on record. Admittedly, intentional or unintentional lapse on the part of complainant, prosecuting counsel or defence counsel is not to be allowed to stand in the way of justice, because it have a bearing on the determination of guilt or innocence of the accused. Such a power under Article 161 of the Qanun-e-Shahadat Order, 1984 and section 540 of the Cr.P.C. has been given to the criminal Court for the safe administration of justice. Fair and free administration of justice is primary and essentially an obligation cast on the Courts of law constituted for the purpose. Thus, we are of the opinion that the trial of the instant case has been conducted in violation of the settled principles of law, resulting in miscarriage of justice in a careless and ridiculous manner. The appellants have been deprived of their fundamental rights to be defended by a proper counsel. We are afraid that such practice will not only shake the confidence of general public, but will also damage the noble profession of law in the eye of community.

9. The record also reveals that the statement of P.W.6 Mst. Shahida has been recorded in violation of section 360 of the Cr.P.C. which speaks as under:--

360. Procedure in regard to such evidence when completed.

(1) As the evidence of each witness taken under section 356 or section 357 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary. (3) If the evidence is taken down in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so taken down shall be interpreted to him in the language in which it was given, or in a language which he understands. The object of the above provision to obtain an accurate record from the witness of what he really means to say and to give him an opportunity of correcting the words which the Sessions Judge or his clerk has taken down. Before a deposition is closed, the evidence must be read over to the witness, enabling him to protect himself against any inaccuracy in the words taken down from his lips. It is not sufficient compliance with the section merely hand over to the witness his deposition so that he may read it over himself. Although the deposition sheet endorsed a certificate of Sessions Judge, which states that the position was read out to the witness and that the witness admitted it to be correct, yet the record would show and suggest to believe that no proper attention was given by the Presiding Officer at the time of recording the statement of said witness. Admittedly, non-compliance with the strict provisions of this section is only an irregularity, which is cured by section 537 of the Code of Criminal Procedure, but in the instant case a serious prejudice has been caused to the appellants, resulting in grave miscarriage of justice. The Presiding Officer was required to record the evidence in his own hand and if it was not possible for him, then it should be taken down by the clerk/reader from direct dictation of the Presiding Judge. Needless to mention here that under chapter 25 of the Code of Criminal Procedure, the evidence of each witness was to be taken down in writing in the language of court by the Presiding Officer, or in his presence and hearing and under his personal direction and superintendence and signed by him.

10. It would be relevant to mention here that not a single bit of tangible evidence is available on record to connect the appellant Rahim Bakhsh alias Raja with the commission of the alleged offence. The eye-witnesses i.e. P.W.2 Mst.Meena, P.W.3 Hidayatullah, P.W.4 Farzana and P.W.5 Mst. Shahida have not uttered a single word 'against appellant Rahim Bakhsh alias Raja, as such, the appeal up to the extent of accused Rahim Bakhsh alias Raja son of Hidayatullah is allowed and he is acquitted of the charge. He be released forthwith, if not required in any other case. In the light of what has been stated and discussed above, the impugned judgment is set aside and case is remanded to the trial Court for re-trial. Order accordingly. H.B.T./71/Q Case remanded.