P L D 1962 (W P) Quetta 5 (PLP)

Dates of hearing : 18th and 19th October 1961. This is a petition by Muhammad Usman who was convicted under section 147, Kalat Penal Code, by the Sessions Judge, Kalat Division, by his judgment dated 2t-6-58. This petition which is dated 15-12-60 was treated as an appeal and was admitted as such by A. R. Khan, J., on 7-7-61. I have however, treated it as a revision, since as an appeal it would be barred by time.

2. The facts relevant for the consideration of this petition may be shortly stated : Accused Usman was alleged to have committed adultery on 13th April 1957 with Mst. Fatma, wife of Habibullah. He was, however, not apprehended and it was alleged that he had escaped. Habibullah killed his wife for siahkari (adultery) by shooting her and the matter was then reported to the Tehsildar. The Tehsildar held the preliminary inquiry in the course of which he recorded the statements of witnesses, and then submitted his report to the Nazimul Hakumat, Sarawan on 23-4-57, in which he recommended that Habibullah, the husband of the deceased Mst. Fatima, might be discharged. The learned Nazimul Hakumat having received this report proceeded to frame issues without taking any evidence himself. These issues were framed on 24-4-57 and the case was then referred to the Jirga, which found the petitioner guilty of the offence of siahkari. It was alleged that this award was accepted by the petitioner. The matter then came back to the learned Sessions Judge before whom the petitioner asserted that he had accepted the award of the Jirga at the instance of one Sardar Behram Khan otherwise he had neither committed adultery nor he had admitted this before the Jirga. The learned Sessions Judge rejected this plea. He then went on to observe as follows :- "There have been, as usual, procedural irregularities. The evidence had not been recorded in presence of the accused nor the accused had the chance of cross-examining the witnesses. But the finding of the Jirga could not be set aside on this account. The admission of Muhammad Usman of his own commission and acceptance by him of Jirga award indicated beyond doubt that such irregularities had neither prejudiced his case nor caused failure of justice." He then went on to say that he saw no reason to differ' from the award of the Jirga as far as Muhammad Usman was concerned and he accordingly convicted him under section 147, Kalat Penal Code and sentenced him to 5 years' rigorous imprisonment and a fine of Rs. 500 or in default of payment of fine further one year's rigorous imprisonment.

3. In the consideration of this case I have had the assist ance of Mr. Zahoorul Haq, the learned counsel appearing for the State and also Mr. Iqbal Muhammad Khan, the Public Prosecutor, Kalat. The Kalat Criminal Procedure Code, by which the present case must be governed, lays down the method of inquiry and trial of criminal cases and a great deal of it is analogous to the procedure provided by the Pakistan Criminal Procedure Code, Chapter VII of the Kalat Criminal Procedure Code provides for the inquiry into an offence. Section 47 of that Chapter provides that the inquiry officer or the enquiring Court, if it is of the opinion that there was sufficient evidence against the accused person, shall submit the case to the Court having jurisdiction. The succeeding chapters provide the procedure for inquiry by the Court having jurisdiction. Section 65, which occurs in Chapter XI, expressly provides that all evidence shall be taken in the presence of the accused, and if his presence has been dispensed with then in the presence of his pleader. Section 73 entitles the Court to frame issues upon which the opinion of the Jirga may be required. This provision is followed by certain matters relating to the procedure before the Jirga who are required to make an award by following that procedure, which award comes back to the. Court.

4. Now, in the present case, the Court having jurisdiction I took no evidence and all that there was before the Jirga was some statement recorded by the inquiry officer, namely, the Tehsildar, all of which had been admittedly taken behind the back of the accused person. Obviously it was the duty of the Nazimul Hakumat, Sarawan, to take evidence himself in the presence of the accused person and afford him an opportunity to cross examine the witnesses if he so desired. He could not have, merely upon the report of the Tehsildar, struck issues and sent the matter for the award of the Jirga. The learned Sessions Judge is clearly wrong when he says that all this merely amounts to an irregularity, and since he thought that no prejudice had been caused to the accused person, the proceedings were in order. To afford an opportunity to accused person to cross-examine prosecution witnesses is one of the basic requirements of a criminal trial. In the present case, such witnesses, as the inquiry B officer chose to examine, were so examined behind the back of the accused. The Nazimul Hakumat acted in a manner which suggested that he was anxious to get rid of this matter as soon as he could, and for this reason he did not hesitate to violate the mandatory provision of the Code which enjoined upon him the duty of examining the witnesses In the presence of the accused person and afford him an opportunity to cross-examine them. This cannot be considered as a mere irregularity. This goes to the root of the whole trial. This cannot bed cured upon the ground that the accused bad accepted the award of the Jirga. It may be that if the Nazimul Hakumat had examined the witnesses in the presence of the accused anal if those witnesses had been cross-examined, the Nazimul Hakumat might have been presuaded to discharge the accused person and then there would have been no occasion to submit this matter to the Jirga. Even before the Jirga there was only the statements of these witnesses which had not been subjected to cross examination and which had been recorded in the absence of the accused person. I have, therefore, no hesitation in holding that the whole trial in this case is vitiated and the conviction of the petitioner cannot be substained. I must, therefore, set it aside. The further question which remains is whether I should remand the case and order further inquiry in this matter. I do not think that this is a fit case for that purpose for the simple reason that the petitioner has already suffered more than 3 year's imprisonment. 1, therefore, set aside the conviction and sentence passed upon the petitioner and order that he should be set at liberty forthwith. The fine, if paid, shall be refunded to the petitioner.

5. I cannot part with this case without depreciating the reprehensible practice which, I am informed by the learned counsel appearing before me, is frequently followed by the magistracy in making a short shrift of a criminal case in deliberate disregard of the procedure for it. To ride roughshod over the procedure may avoid the inconvenience which an officer may have to suffer In conducting these proceedings. But, if such an officer considers the procedure as a matter of unnecessary bother then he is certainly not fit to be in the place which he occupies. These criminal proceedings affect the life and liberty of the people and it is essential that in the conduct of it the provisions of law should be strictly adhered to. I may mention that neither the learned counsel for the State nor the Public Prosecutor were able to support the conviction of the petitioner inasmuch as it was based upon an inquiry which was in violation of the mandatory provisions of the Code of Kalat. A copy of this judgment shall be sent to the Commissioner, Kalat Division. S. B. Conviction set aside.