2010 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Muhammad Asif son of Allah Rakha along with Muhammad Boota son of Barkat Ali, Mubashar alias Bhutto son of Bashir Ahmad, Kausar Ali son of Bashir Ahmad, Mst. Saleema Bibi widow of Allah Rakha, Muhammad Ameen son of Bashir Ahmad and others were nominated in case F.I.R. No. 149 of 2003, dated 21-5-2003, offence under sections 302, 109, 148, 149, P.P.C., registered at Police Station Saddar Pasrur, District Sialkot on the statement of one Muhammad Hamid son of Muhammad Ameen recorded under section 154, Cr.P.C: wherein it was stated that he is resident of Mouza Novel and is involved in Zamindara. About 8/9 months earlier, Muhammad Ameen, father of the complainant was murdered by Shaukat Ali son of Allah Rakha, Rajpoot by caste, resident of the same village etc. upon which murder case was registered against them, which was pending adjudication before the court of law. Due to previous enmity Sikander Ali, paternal uncle of the complainant, used to carry his licensed rifle 44-bore with him. On 21-5-2003 at about 7-15 a.m., the complainant along with Sikander Ali his paternal uncle, upon his Motorbike No. R.I.M./8577 proceeded for Pasrur whereas Amjad son of Ghulam Nabi, paternal cousin (phophizad) of the complainant and his mother Safia Bibi also left their house to see maternal grand parents in village Kullewal. Soon they reached near Kulaywali Morr. In the meanwhile, Mobushar alias Bhutto, Kausar Ali both sons of Bashir Ahmad, Rajpoot by caste, residents of the same village and Tariq Mahmood son of Muhammad Boota, caste Rajput, resident of Tayyub Bhatta along with two unknown persons, who were sitting ambushed, came forward at once and while raising lalkara to eliminate them resorting to firing. The complainant along with his maternal uncle speed up the motorcycle and soon they reached in front of haveli of Arshad son of Mehnga at about 7-30 a.m. On the main road Shaukat Ali, Muhammad Asif, both sons of Allah Rakha, caste Rajput and Muhammad Ameen son of Bashir Ahmad, while armed with fire-arms came in front of them. Shaukat Ali and others accused persons pursuant to lalkara raised by Bhutto and others started making firing upon the complainant and his paternal uncle namely Sikandar. Shaukat Ali made a fire shot, which landed on the mouth of Sikandar while Muhammad Asif made fire with his rifle, which hit paternal uncle of the complainant upon his neck from backside, who fell down and succumbed to the injuries at the spot. Accused Shaukat Ali and others also resorted to firing at the complainant who in exercise of his right of self-defence while holding the gun of his paternal uncle fired at the accused, which hit Shaukat Ali, one of the assailants, who after 'sustaining injuries raised hue and cry and the co-accused of Shaukat Ali took him on motorbike towards Maio Hospital in an injured condition and decamped from the place of occurrence. Shaukat Ali and others in furtherance of their common intention had committed the murder of Sikandar, paternal uncle of the complainant. The accused persons committed the occurrence on the instigation and conspiracy of Mst. Saleema Bibi and Muhammad Boota whereas the-occurrence was witnessed by Amjad Ali and Mst. Safia Bibi besides the complainant.

2. Shaukat Ali accused son of Allah Rakha had died on 4-6-2003 at 7-30 a.m. due to the injuries he sustained during the occurrence. Nasreen Bibi wife of said Shaukat Ali reportedly approached the local police for registration of counter-version, which was initially lodged but during the course of investigation, the same was dismissed. Said Nasreen Bibi in order to redress her grievance qua murder of her husband Shaukat Ali, filed complaint titled: Nasreen Bibi v. Muhammad Saleem and others in which she had mentioned Muhammad Saleem, Muhammad Hamid, Mushtaq Ahmed and Zahid as actual assailants who initiated the occurrence and in consequence whereof Shaukat Ali, her husband was murdered. The said complaint was entrusted to the court of learned Additional Sessions Judge by the orders of learned Sessions Judge, Sialkot dated 27-8-2003 in terms of section 193, Cr.P.C. Preliminary statement of Mst. Nasreen Bibi (P.W.3) was recorded and the matter was sent for holding regular inquiry under section 202, Cr.P.C. to the Area Magistrate. Learned Inquiry. Magistrate seized with the matter, after recording the preliminary statements of the prosecution witnesses forwarded his inquiry report to the learned Additional Sessions Judge recommending the complaint for holding trial. The learned trial Court summoned the nominated accused in the complaint except Sajid (since P.O.) in terms of section 204, Cr.P.C. The accused of the complaint were duly provided requisite documents/copies of the complaint and other annexures as provided under section 265(c), Cr.P.C. The accused of the complaint were also charge-sheeted but they did not plead guilty and claimed trial. After the completion of the preliminary proceedings qua the complaint case two parallel cases one challan case titled States v. Muhammad Boota and others and counter-version of the said challan case, complaint titled Nasreen Bibi v. Muhammad Saleem and others were dealt by the learned trial Court side-by-side.

3. The learned trial Court recorded the statements of Dr. Muhammad Junaid (P. W.1), Sarwar Ali (P.W.2) Naseer Ahmed (P.W.3), Zia-ul-Hassan draftsman (P.W.4), Muhammad Saleem (P.W.5), Muhammad Hamid (P.W.6), Muhammad Amjad (P.W.7) and Muhammad Arshad (P.W.8) in the challan case. After recording the statements of P.Ws. 1 to 8, learned trial Court recorded the statement of Muhammad Asif accused son of Allah Rakha, real brother of Shaukat Ali deceased of the complaint case. Thereafter, the learned trial Court besides recording the statements of four prosecution witnesses in the complaint case also recorded the statements of Muhammad Riaz Muhammad Younas S.-I. Investigating Officer of the challan case as court witnesses in the complaint case and vide judgment dated 30-11-2004, convicted Muhammad Asif, appellant of challan case, under section 302(b), P.P.C. and sentenced him to death with a direction to pay compensation of Rs. 200,000 to the legal heirs of deceased under section 544-A, Cr.P.C. in case of default he was to further undergo six months' S.I. Muhammad Hamid son of Muhammad Ameen, (complainant of the challan case and accused in complaint case), was convicted under section 324, P.P.C. and sentenced to 10 years' R.I. with fine of Rs. 20,000 in case of default he was to further undergo two years' R.I. Rest of the accused (both in State case as well as complaint case) were acquitted of the charge by the learned trial Court while extending them benefit of doubt.

4. Being aggrieved of the judgment of the learned trial Court, Muhammad Asif appellant filed Criminal Appeal No. 1971 of 2004, Muhammad Ali, appellant filed Criminal Appeal No. 2070 of 2004 whereas the learned trial Court forwarded Murder Reference No. 51 of 2005 as provided under section 374, Cr.P.C. for confirmation of death sentence inflicted upon Muhammad Asif appellant. Naseem Bibi filed Criminal Revision No. 1047 of 2004 for enhancement of sentence inflicted upon Hamid appellant.

5. At the very outset we were astonished to note that the learned trial Court skipped Muhammad Riaz S.-I. Muhammad Younas S.-I. and Muhammad Malik 1408/C to record their statements as prosecution witnesses in the challan case although names of all these three witnesses do find mention in the report prepared under section 173, Cr.P.C. in the supplementary challan. Moreover, after recording the statements of accused under section 342, Cr.P.C. in the aforesaid challan case, the learned trial Court also recorded the statements of Dr. Muhammad Faheem Butt as P.W.1, Muhammad Jameel (P.W.2), Mst. Nasreen Bibi .(P.W.3), Muhammad Sarwar (P.W.4) and Muhammad Riaz S.-I. (C.W.1), Muhammad Younas S.-I. (C.W.2) and Muhammad Malik 1408/C (C.W.3) in the private complaint as mentioned above. Although the gist of their statements is not available before us despite a clear-cut order was passed by this Court on 3-5-2010 to the office of this Court. As judicial record of the complaint case and the statements of the prosecution witnesses and court witnesses as stated above are grossly missing from the book of the Murder Reference, therefore much cannot be said about this, however, from the facts and circumstances gathered with the able assistance of learned counsel for both sides, three propositions of law have been established, which are to be redressed and evaluated in the parlance of judicial approach and in the light of judicial pronouncements made from time-to-time. (i) Whether the learned trial Court was competent to summon the Investigating Officers as court witnesses in the challan case? (ii) Whether the learned trial Court was competent to record the statements of prosecution witnesses in the complaint case and the statements of the Investigating Officers as C.Ws. in the absence of any prayer made by the complainant of the complaint case? and (iii) If both these propositions of law are taken correct, whether the learned trial Court was competent to pronounce consolidated judgment under single head while convicting each person from two different versions through a single judgment.

6. To evaluate all the three propositions of law suffice it to say that the learned trial Court had erred in appreciating the first proposition of law in toto. It seems that the learned trial Court is not aware with the basic scheme of law as enshrined in Chapter XXII of the Criminal Procedure Code, 1898. One of the simplest cases of cross-version was made so complicated and intermingled with each other it has become very difficult to segregate both in ordinary circumstances. The learned trial Court was bound to record the statements of prosecution witnesses duly mentioned in the list of the report prepared under section 173, Cr.P.C. in challan case as it was sent by the Investigating Officer. Mst. Nasreen Bibi widow of Shaukat deceased (one of the deceased and accused in the challan case) had preferred to file complaint when she was not satisfied with the findings of the Investigating Officer qua counter version of the occurrence brought on record earlier on the statement of said Mst. Nasreen Bibi. In these circumstances said Mst. Nasreen Bibi redressed her grievance through filing of complaint qua the murder of her husband Shaukat Ali and it was rightly done by her being alternate remedy. The learned trial Court though recorded the statements of four prosecution witnesses in the complaint case, besides recording the statement of three police officials as court witnesses. It has been informed to us that statements of above three court witnesses were placed on file of the challan case as well but without availing opportunity of seeing the original record, this Court lays hand to make an observation qua the mode of summoning these court witnesses during the course of trial in both matters. There is nothing on record to ascertain whether any application was moved by Mst. Nasreen Bibi to summon these persons as court witnesses. Similarly, the learned trial Court without recording the statements of the accused persons nominated in the complaint (as appraised by the learned counsel appearing for the complainant) concluded the trial and as such disposed off the matter through a consolidated judgment dated 30-11-2004.

7. Be that as it may, this Court' after evaluating all the facts and circumstances has no other option except to remand the instant case to the learned trial Court for its rehearing to the extent that in the challan case the statements of the Investigating Officers are to be recorded as prosecution witnesses to evaluate the prosecution evidence and then to record the statements of accused under section 342, Cr.P.C. and if during the statement, any of the accused wishes to produce defence evidence, that is to be dealt as per law. However this observation made by us would remain only to the extent of Muhammad Asif appellant as rest of the co-accused of Muhammad Asif appellant had already suffered the incarceration of trial who were acquitted by the learned trial Court and the complainant had not preferred any appeal against their acquittal, therefore, to us the culpability of rest of the accused has already attained finality. In the circumstances the challan case of F.I.R. No. 149 of 2003, dated 21-5-2003, offence under sections 302, 109, 148, 149, P.P.C. registered at Police Station Saddar Pasrur, District Sialkot would only be triable to the extent of Muhammad Asif appellant, which has been remanded due to serious lapses at the part of the learned trial Court. We may also mention here that the interregnum period qua Muhammad Asif appellant during trial would be deemed as the status of an under trial prisoner. As far as the complaint case titled Nasreen Bibi v. Muhammad Saleem and others is concerned only Muhammad Hamid, appellant, was convicted by the learned trial Court. Sentence of said Muhammad Hamid has already been suspended by this Court, therefore, that would remain intact and he would enjoy the same concession but he would be liable to furnish fresh bail bonds as and when required by the learned trial Court to its satisfaction. As no appeal has ever been filed by Mst. Nasreen Bibi, complainant of the complaint case against acquittal of co-accused of Muhammad Hamid, therefore, they shall also enjoy the same premium as has been extended to co-accused of Muhammad Asif appellant.

8. In sequel to what has been discussed above, while remanding the case, the learned trial Court is directed to record the statements of remaining prosecution witnesses of the "challan case" and conclude the same afresh strictly in accordance with law preferably within the prescribed period as ordained in National Judicial Policy. Learned trial Court is further directed to record the statements of remaining witnesses of the "complaint" and the Investigating Officers if that is opted by the complainant of the complaint case or she moves any application for summoning the Investigating Officers of the case as court witnesses. Learned trial Court is directed to decide both the matters simultaneously just to avoid inconvenience to either of the parties for the safe administration of criminal justice. Office shall remit the record to the learned trial Court forthwith. The parties are directed to appear before the learned trial Court on 3-6-2010.

9. For what has been discussed above Criminal Appeal No. 1971 of 2004 filed by Muhammad Asif appellant and Criminal Appeal No.2070 of 2004 filed by Muhammad Hamid appellant are disposed of in the above terms. Criminal Revision No.1047 of 2004 filed by Mst. Nasreen Bibi complainant of `complaint case' for enhancement of sentence inflicted upon Muhammad Hamid appellant, from section 324, P.P.C;, to section 302, P.P.C., as well as for enhancement of compensation, at present has no force because of the remand order, therefore, the same is dismissed having become infructuous. Murder Reference No.51 of 2005 forwarded by learned trial Court in terms of section 374, Cr.P.C. is answered in Negative. Death sentence is not confirmed.

10. Before parting with this order it is worth mentioning that the reply of office in compliance of order passed by this Division Bench on 3-5-2010 was not only negligent and sketchy rather a stereotype reply was given by the office without inspecting the file and examining the same. Therefore, learned Registrar of this Court is directed to probe into the matter personally in light of order dated 3-5-2010, passed by this Bench, its reply by the office dated 8-5-2010 while keeping it in juxtaposition with the finding made in para No.5 above. He shall also ascertain the responsibility of delinquent official(s)/officer(s) and warn them strictly to be careful in future.

11. As far as legitimacy of the judgment dated 30-11-2004, passed by learned trial Court is concerned, we are astonished to see the conduct of the learned trial Court and are awfully disappointed .with the performance of Mr. Tariq Mehmood Iqbal Khan, learned Additional Sessions Judge seized with the trial. It seems that the learned trial Judge is not aware of the basic scheme of law on the subject as ordained in the statute and he requires refining. Learned Registrar is directed to convey the observations of this Court to the concerned Judicial Officer to remain careful in future.

12. Case is remanded. N.H.Q./M-350/L???????????????????????????????????????????????????????????????????????????????? Case remanded.