1995 P Cr (PLP)

Ss. 324 & 337-D

Appreciation of evidence

Investigating officer was not cross-examined by counsel for the accused and cross-examination by accused himself was no substitute of cross-examination by his counsel

Magistrate had only narrated the arguments of both the sides in his judgment and stated that points raised by the prosecutor were supported by the record

Convictions and sentences of accused were set aside in circumstances and the case was sent back to trial Magistrate for fresh decision in accordance with law after affording opportunity to accused to cross-examine the witness.

[Evidence]. 1971 PCr.LJ 1054; Syed Saeed Muhammad Shah and another v. T he State 1993 SCMR 550; Issa Khan v. The State PLD 1987 Quetta 174; Muhammad Bukhsh v. The State 1991 PCr.LJ 367 ref. Nasir Saeed Sheikh for Appellant. Raja Muhammad Ayyub Kiani for the State. Date of hearing: 30th March, 1995. Muhammad Khan, appellant was tried under section 324, P.P.C. by the learned Magistrate Section 30 and sentenced to undergo five years' R.I. on each head under sections 324 and 337-D, P.P.C. vide judgment, dated 24-11-1993. Both the sentences were ordered to run concurrently. One-third of the Diyat amount amounting to Rs.56,869 was also to be paid to, Noor Khan and in default thereof to undergo further R.I. for one year.

2. Learned counsel for the appellant has argued that the learned trial Magistrate while passing the impugned judgment did not put the defence version in juxtaposition with prosecution evidence. He submitted that the statement of the Investigating Officer was recorded on 28-6-1993 when learned counsel for the accused was not present and as such the opportunity to cross-examine the witness was not provided. An application being C.M. No.640 of 1994 was also moved in this Court for recalling the Investigating Officer so as to cross-examine the witness. This application was ordered to be heard alongwith appeal. In support of submission, learned counsel has relied on 1971 PCr.LJ 1054 and 1993 SCMR 550.

3. It was next argued that the Courts are bound to discuss the evidence of both the sides and after putting the prosecution and defence version in juxtaposition give their own verdict. Reliance was placed op PLD 1987 Quetta 174 and 1991 PCr.LJ 367.

4. I have heard learned counsel for the parties at length and have gone through the record with care. The law laid down in the case of Issa Khan v. The State PLD 1987 Quetta 174 was that proper judgment must specify points for determination and reasoning of the Court for deciding such points and the trial Court is obliged to thoroughly examine all evidence adduced by the parties as well as arguments raised by each side and to appreciate same according to law. It was further held by their Lordships of the Quetta High Court that the conclusion drawn in respect, of each point should be based on strong grounds and reasoning. In the case of Muhammad Bukhsh v. The State 1991 PCr.LJ 367 the Honourable Judge (as his Lordship then was) set aside the conviction of the petitioner by observing that the learned Assistant Commissioner has simply narrated the evidence given by the D.Ws. but has neither discussed nor disbelieved the same.

4. It is an admitted fact that the Investigating Officer was not cross-examined by learned counsel for the accused petitioner. Hence in view of the law laid down by their Lordships of the Supreme Court in the case of Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 that cross-examination by accused himself is no substitute of cross-examination by the counsel coupled with the fact that the learned trial Magistrate has only narrated the arguments of learned counsel for both the sides and then stated that points raised by the prosecutor are supported by the record, I accept this appeal, set aside the impugned judgment, dated 24-11-1993 of the learned Magistrate 30 who shall decide the case after affording opportunity to the appellant to cross-examine the witness, in accordance with law. The appellant is behind the bars since 24-11-1993 and as such after a lapse of period of more than one year, I am of view that ends of justice would be met by releasing the appellant on bail on his executing bail bonds in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of learned trial Court. N.H.Q./M-2083/L Case remanded.