2012 P Cr (PLP)

QAISER RASHID KHAN, J.

Appellants have impugned the judgment/order passed by learned Additional Sessions Judge, Tank on 15-1-2010, vide which they have been convicted under section 302(b), P.P.C. on two counts and sentenced to life imprisonment and were ordered to pay Rs.9,30,000 for each deceased as diyat, payable to the legal heirs of both the deceased, recoverable as arrears of land revenue. Benefit of section 382-B, Cr.P.C. has been extended to them.

2. The prosecution case, as per narration of the F.I.R. is that Maveej in injured condition along with the dead body of his brother Ghulam Rashid on 2-7-2006 at 09:45 hours lodged the report with the police in Civil Hospital, D.I. Khan to the effect that on the eventful day, he along with his deceased brother were present in the hotel of one Sher Daraz in Tank Bazar, when at about 09:15 hours, both the accused/appellants Azmat Khan and Jabir Khan duly armed with daggers along with their absconding co-accused Hidayatullah and Gul Zamir came there and called them to come out of the hotel. All the accused complained to him that he had communicated some remarks to one Mohibullah, to which he showed ignorance but the accused got infuriated with his reply and made assault on them. Co-accused Hidayatullah made firing with a pistol, whereas the convict/appellant Azmat and Jabir and other co-accused Gul Zameer started giving blows with daggers to him and to his deceased brother. Resultantly, Ghulam Rashid died at the spot and the complainant sustained injuries. Hence, case F.I.R. No.355 dated 2-7-2006 was registered under section 302/34, P.P.C. at Police Station, Tank.

3. On completion of the investigation challan was submitted before the trial Court, the appellants were formally charged to which they did not plead guilty and claimed trial. The prosecution in order to prove the case produced and examined ten witnesses.

4. On closing the prosecution evidence, statement of the appellants under section 342, Cr.P.C. were recorded in which they denied the allegations levelled against them but did not opt to record their statements under section 340(2), Cr.P.C. and also did not wish to produce evidence in their defence.

5. The learned trial Court after evaluating the materials brought on record and considering the arguments of the learned counsel of parties, passed the impugned judgment of conviction and sentence, hence the instant appeal.

6. Learned counsel for the appellants argued with great vehemence that the impugned judgment of conviction is not sustainable under the law because the prosecution had not been able to prove its case against the convicts beyond any shadow of reasonable doubt. He argued that the prosecution case is replete with grave doubts which entitle the appellants to outright acquittal. He contended that the site plan prepared by the Investigating Officer in the case in hand is of his own imagination because at the spot none was present to have pointed out the presence of the accused and the deceased on the relevant points. He submitted that both the deceased had many blood feud enmities with different people and thus the involvement of the appellants in their killings is highly doubtful. He urged that there was no convincing and corroborative evidence brought on record to support the prosecution version and, therefore, the learned trial Judge has wrongly passed the impugned judgment of conviction. He submitted that in view of the serious injuries sustained by the complainant/deceased, he was unable to talk and give the details of the occurrence coherently. He argued that the case of the prosecution rests on the solitary testimony of the complainant Maveej Khan and after his death the same was wrongly considered as dying declaration. The last limb of his arguments was that despite the fact that the occurrence had allegedly taken place in a thickly-populated place, but no evidence through independent source has been brought on record by the prosecution to substantiate the charge against the accused/appellants.

7. On his turn, learned counsel for the complainant refuted the aforesaid submissions of the learned counsel for the appellants by drawing our attention to the case F.I.R. No.356 dated 2-7-2006, a copy of which he produced before us. The said F.I.R. is a cross-case lodged by the appellant Azmat Khan son of Sheikh Ali pertaining to the same incident which forms the basis of case F.I.R. No. 355 of even date. He invited our attention to the order sheets of the trial Court dated 25-4-2009, 12-5-2009, 23-5-2009, 6-6-2009, 18-6-2009 and 27-6-2009, wherein the record of case F.I.R. No.356 lodged by the convict/appellant was ordered to be requisitioned. The said record was accordingly transferred by the learned Sessions Judge to the learned trial Court on 4-9-2008 and after its receipt, the same was consigned to record room on 5-9-2008. The record is, however, silent with regard to the site plan of the said alleged cross-case F.I.R. No.356 including the statements of the official witnesses, if examined.

8. The learned Deputy Advocate-General representing the State supported the arguments of the learned counsel for the complainant in toto.

9. We have carefully scrutinized the record and considered the arguments of the learned counsel for the parties.

10. We have noticed with deep concern that the trial Court has also not performed its duty as was required under the law. When the record of the said F.I.R. No. 356 was requisitioned on the specific request of the defence, then it was the bounden duty of the Court to have examined witnesses about the cross-version. The prosecution too, failed to perform its job in a befitting manner as sans the examination of the witnesses of the cross-version, the true and correct picture would not emerge as has been done in the instant case when the proceedings in the cross-version were shelved with a saintly indifference. Little wonder, that the trial Court did not notice the explicit language of section 540, Cr.P.C. through which ample powers have been conferred on the court to summon any witness at any stage of the trial whose examination is essential for the just decision of the case, but still the same was overlooked

11. Such being the case, we earnestly feel that we are unable to decide the case according to the settled principles of law and justice. Thus in order to meet the ends of justice and more so for doing substantial justice, the remand of the case becomes all the more essential in view of the peculiar circumstances of the case when neglect and failure to perform duty have become the hallmark of the present case which have thus attracted our attention at the appellate stage.

12. Accordingly, we accept this appeal, set aside the impugned judgment of conviction and sentences awarded to the appellant and remand the case to the trial Court for decision afresh after examining the essential witnesses as court witnesses of the cross F.I.R. No. 356 dated 2-7-2006. Besides, the appellants would also be at liberty to lead their own evidence regarding the said F.I.R. No.356 or record statements on oath. The case should be re-decided after holding trial only to the above extent. However, the entire process referred to above shall positively be completed within three months after receipt of record which shall be sent back forthwith to the trial Court and during this period the appellants shall be kept as under trial prisoners. H.B.T./372/P Case remanded.