P L D 1967 Karachi 186 (PLP)

3. In order to establish the identity of the author of this letter an attempt was made. by Sub‑Inspector Mahfooz‑ul‑Bari (P. W. 4) to obtain a specimen writing from the first appellant in the presence of a Magistrate, but the appellant refused to comply, with the result that the prosecution placed reliance on two documents Exh. 1/A and Exh. 1/B said to be in the handwriting of this appellant. This fact was sought to be proved by the evidence of the Assistant Superintendent, Jail, Muhammad Yusuf (P. W. 1), who deposed that as an official working at the Montgomery Central Jail he was familiar with the handwriting of Sardar Muhammad Akbar Khan Bugti and that the two documents in question had passed through his hands. He also identified the writing in the offending letter Exh. 1/C to be that of Bugti. This fact was further supported by the evidence of the Handwriting Expert Mukhtar Ahmed (P. W. 6).

4. Both the appellants pleaded not guilty at the trial and asserted that they had been falsely implicated. The second appellant denied that he was present in Karachi on the relevant date. They did not, however, produce any defence evidence.

5. On behalf of Sardar Muhammad Akbar Bugti Mr. Fazeel has strenuously contended that the two documents Exh. 1/A and Exh. 1/B could not be used in evidence against this appellant for the reason that they were not put to him when he was examined by the trial Court under section 342 of the Criminal Procedure Code. He has further contended that even otherwise the authorship of these two documents as well as of the offending letter Exh. I/C is not at all satisfactorily proved on the record, especially when note is taken of the important circumstance that this appellant being confined in the Montgomery Central Jail was not free to send out letters as he pleased, and every piece of writing material had to be obtained through the jail authorities after they had initialled each paper supplied to him.

6. On behalf of the second appellant, Mr. Riaz Hashmi has contended that it is not at all proved on the record that the bush?-shirt from the pocket of which the offending letter was recovered belonged to Mir Gul Khan Nasir; that in fact it is not even established that the room in which the bush‑shirt was hanging, was occupied by this appellant.

7. As I propose to accept the contention raised by Mr. Fazeel on behalf of Sardar Muhammad Akbar Khan Bugti with reference to the admissibility of the specimen writings Exhs. 1/A and 1/B, I consider that it is not necessary to examine the other contentions raised by the two learned counsel appearing in this case. The principle is now well‑established that if an important piece of evidence is not put to the accused under section 342 of the Criminal Procedure Code and he is not given an opportunity to explain that evidence, then it cannot be used against him. See Rahim Bakhsh v. Crown (P L D 1952 F C 1), Aminul Haque v. Crown (P L D 1952 F C 63), Abdul Wahab v. The Crown, (P L D 1955 F C 88) Abdus Salam Molla v. The Crown (P L D 1955 F C 129) and Munawar Ahmed v. The State (P L D 1956 S C (Pak.) 300). ???????????????????????

8. The two documents in question form an important part of the prosecution evidence and if they are excluded, the only evidence left on the record to establish the authorship of the letter Exh. 1/C would be that of the Assistant Superintendent of the Montgomery Jail, namely, Muhammad Yusuf (P. W. 1). Mr. Ata Ullah Sajjad, the learned Additional Advocate‑General, appearing for the State, has frankly stated that he is not prepared to argue the prosecution case solely on the basis of the testimony of Muhammad Yusuf, as the two documents Exh. 1/A and Exh. I/B are of great importance in establishing the charge against the first appellant. In these circumstances, it is clear that the conviction already recorded by the trial Court against this appellant cannot be sustained and has to be set aside, as it is based on evidence which could not be legally used against the appellant. The question, however, is whether the appellant should be re‑tried or not.

9. In the cases already mentioned the learned Judges did not order a re‑trial while excluding the evidence which had not been put to the accused persons under section 342 of the Criminal Procedure Code. However, some observations were made in Aminul Hoque's case which give some guidance in the matter of ordering a re‑trial. These observations are as under:‑ "In conclusion, it was contended on behalf of the Crown that Aminul Heque should be retried so that the prosecution may be able to produce Maulvi Abdul Bari as a witness at the trial. Ali Akbar net with his death as long ago as the 10th of July 1949. The appellant. had to undergo the worry and anxiety of a prolonged trial for a period of over two years." "It would be highly unfair to him if he is allowed to be retried in order to enable the prosecution to fill the gaps in the prosecution case. We are not, therefore, prepared to grant the prayer made on behalf of the Crown at this stage."

10. Again, the question of re‑trial was discussed in Nur Hussain v. Emperor (A I R 1931 Lah. 767). That was a case where the joint trial of two persons was found to be illegal, but the learned Judge refused to order re‑trial in view of the fact that they had already undergone six months' rigorous imprisonment each, out of the one year's sentence imposed on them, and the period of detention prior to their conviction was also taken into account. In other words, it was considered that if the accused person had already remained in detention for a sufficient period, considering the nature of the allegations against him, a re‑trial need not be ordered. In Alfred Granville Ross v. The Queen (P L D 1957 P C 151) their Lordships ordered a re‑trial, repelling the contention that the re‑trial would have the effect of enabling the prosecution to fill a gap the evidence which had been due to its own default. In the case of Abdus Salam v. The State (P L D 1960 Dacca 425) a learned Single Judge observed that:‑ "Re‑trial is not and should not be treated as a method for enabling the prosecution to improve upon the evidence which was led at the original trial nor should it be resorted to for giving the prosecution a second opportunity of getting the accused persons convicted. But the question as to whether there should or should not be a re‑trial should be based upon "an assessment of the evidence already on the record. If that evidence does disclose with reasonable certainty that an offence has been committed, then the accused should not be allowed to go scot‑free merely on a technical ground which renders the trial itself bad." Lastly, reference was made to Attai Khan v. The State (P L D 1962 Pesh. 87) in which a re‑trial was ordered by a Full Bench of this Court, but this case does not contain any discussion of the principles which should guide the Court in this matter.

11. From the cases cited at the Bar, it is clear that if conviction is to he set aside on the ground of an illegality in the trial, re‑trial should not generally be ordered to enable the prosecution to fill the gaps in their case, nor should a re‑trial be ordered where an accused person has already remained in custody for a sufficiently long period in relation to the nature of the offence alleged against him. On the other hand an offender is not to be allowed to escape punishment on the ground o technicalities if the evidence on the record discloses a prima facie, case against him and there is no question of any undue hardship to the accused person on account of having been in detention for a long period. Now, in the present case, the prosecution has already brought on the record the entire evidence on which it wished to place reliance, but two important pieces of evidence cannot be considered because of the failure of the trial Court to comply with the provisions of section 342 of the Criminal Procedure Code. The first appellant, who is the main accused, is no doubt in detention, but he is undergoing imprisonment in another connection and it cannot, therefore, be said that he has already suffered due 'to being detained in this case. In these circumstances I consider that this is a fit case where a re‑trial should be ordered with regard to the first appellant Sardar Muhammad Akbar Khan Bugti. Accordingly, I set aside his conviction and sentence and direct that he be retried in accordance with law.

12. The circumstances of the second appellant, namely, Mir Gut Khan Nasir appear to me to be somewhat different. He has been accused only of abetment, as he is not the author of the offending letter Exh. 1/C. He has already been in detention in connection with this case since the 6th June 1965, i.e. for over 14 months. The learned trial Magistrate bad sentenced him to undergo rigorous imprisonment for two years only. In other words, this appellant has already been in detention for a sufficiently long period, considering the sentence which was awarded to him by the trial Court. In view of this, following the course adopted in Nur Hussain v. Emperor. I would merely set aside his conviction and sentence but would not order a re‑trial. The result is that he stands acquitted, and shall be released forthwith, if not required to be detained in any other connection.

13. The appeal is accordingly accepted to the extent indicated above. K.B.A. Appeal partly accepted.