2006 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM, J.

The above titled appeals have been directed against the order of Additional District Court of Criminal Jurisdiction, Hajira, dated 30-9-2005, whereby appellants were convicted. Muhammad Sharbat appellant was awarded death sentence under section 5, I.P.L. and 3 years' rigorous imprisonment along with Rs.5,000 Hukumat-e-Adle under section 15, I.P.L. Muhammad Khalil was sentenced to 14 years' rigorous imprisonment under sections 5, I.P.L., 34, A.P.C. and 3 years rigorous imprisonment along with Rs.5,000 Hukumat-e-Adle under section 15, I.P.L. while Muhammad Akbar and Muhammad Ashfaq were sentenced 3 years' rigorous imprisonment along with Rs.5,000 Hakumat-e-Adle each under section 15, I.P.L. and 34, A.PC.

2. Brief facts leading to the background of the appeals are that a case under sections 5/15 I.P.L., 307/34, 147, 148, 149, 109, A.P.C. and 14, E.H.A. was registered against appellants and others at Police Station Hajira on the complaint of Muhammad Ashfaq. It was alleged that an enmity was prevailing between the complainant and Sherbat Khan due to a case of kidnapping. On December 31, 1994 the complainant, Dr. Said Muhammad, Muhammad Aslam, Muhammad Imtiaz and Muhammad Fayyaz were about to go home from Hajira. The complainant was sitting in Annayat Bakery. Said Muhammad, Muhammad Aslam, Imtiaz Ahmad and Muhammad Fayyaz were standing outside the bakery. They were waiting for a bus. As the complainant came out from the bakery, Muhammad Arshad and Muhammad Arif caught him while Muhammad Khalil caught hold of Dr. Said Muhammad and Sharbat Khan started inflicting injuries with stick on his head. Muhammad Khalil inflicted injuries with stick at the head of the complainant. It was further alleged that Muhammad Khalil, Sharbat Khan, Muhammad Arshad and Muhammad Akbar gave kick blows to Said Muhammad, who was lying on the road. Imtiaz Ahmed intervened upon which Muhammad Ashfaq inflicted injury with stick on his head. Dr. Said Muhammad succumbed to the injuries.

3. A challan for commission of offences was submitted against the accused persons before the trial Court. After completion of the trial, the Court convicted the appellants through the impugned order. Hence the above titled appeals.

4. Since the reference and the appeals arise out of same order of the trial Court, therefore, these shall be disposed of through this common judgment.

5. I have heard the learned counsel for the parties and gone through the record of the case.

6. It is important to note that Qazi Sardar Muhammad Hanif Khan a Member of Tehsil Court of Criminal Jurisdiction, Hajira was cited as eye-witness in the case. On 16-10-2002 he appeared before the trial Court and recorded his statement in support of the prosecution version. Later on he was promoted as Additional District Qazi and was appointed as Member of the trial Court on 3-1-2005. As Member of Additional District Court of Criminal Jurisdiction, Hajira he proceeded with the trial of the case. From perusal of the record it appears that he recorded the statements of Dr. Muhammad Azeem, Dr. Allah Lok Sabir, Karamat Hussain, A.S.-I., Muhammad Munir Head Constable, Muhammad Faiz Khan Inspector C.I.A., Syed Zaman Ali Shah (Retd.) D.S.P., Muhammad Anwar Khan, S.H.O. and D.Ws. Muhammad Pervaiz Khan, Muhammad Younis, Mushtaq Ahmad and Arshad.

7. The point which needs serious consideration is that whether the learned Additional District Qazi who was a witness in the case was competent to try it. It may be mentioned here that any act of a Judge which can possibly give rise to an apprehension in mind of the parties that they will not get impartial trial is not warranted. Section 556, of Criminal Procedure Code does not allow a Judge to try any case in which he is interested. The aim is to avoid apprehension that a bias attributable to a Judge might have operated against either of parties and the objective is that justice must not only be done but must also appear to have been done. Reliance may be placed on AIR 1947 Mad. 118, AIR 1957 Supreme Court of India 425, PLD 1951 FC 62 and PLD 1957 Pesh. 128.

8. As stated earlier that in the present case the learned Qazi was a prosecution witness. He deposed against the accused appellants and after being appointed Member of the trial Court he started proceeding with the case. In my view it was improper for him to try the case as he had himself appeared as P.W. against the accused appellants. 8-A. In light of the facts listed above, the impugned judgment is set aside and the proceedings conducted by Qazi Sardar Muhammad Hanif Khan are hereby quashed. The case is remanded and the trial Court is directed to proceed with the case afresh to this extent and decide it in accordance with law.

9. It was brought in my notice that accused appellants were on bail during trial, therefore, they shall be released from custody on furnishing bail bonds in sum of Rs.5,00,000 with two sureties and personal bonds in the like amount to the satisfaction of any Magistrate 1st Class, Hajira. The reference and appeals stand disposed of accordingly. H.B.T./14/Sh.C.(AJ&K) Order accordingly.