Purgation of witnesses

Record transpired that accused was not confronted with the documentary evidence, i.e. site plan, details of site plan and post-mortem report during his statement under S.342, Cr.P.C.

Omission on the part of Trial Court was not merely an irregularity incurable under S. 537, Cr.P.C. but the same was downright illegal, which had vitiated the conviction and sentence

Where a piece of evidence was not put to the accused while recording his statement under S. 342, Cr.P.C., the appellate court had the option either to remand the case for re-examination of the accused or exclude such piece of evidence from consideration

Purgation of the prosecution witnesses was not conducted under S. 26(2) of Azad Jammu and Kashmir Islamic Penal Laws Act Act, 1974 which was necessary and judgment pronounced without purgation of witnesses was illegal

High Court remanded the case to the Trial Court for re-trial from the stage of recording the statements of accused under S. 342, Cr.P.C. and for re-writing the judgment after conducting purgation of the prosecution witnesses.

In second purgation report, the word "Adil" was not used; whereas in first purgation report, it was clearly mentioned that witnesses were found "Adil"

Qazi or Judge, could conduct purgation of the witness, either publicly in the court or secretly outside the court

In order to avoid creation of bad blood and disturbance of peace in the society, the eminent jurists of Islamic Fiqa had commented secret purgation of a witness

Method for conducting purgation, was that the Qazi would write a secret private letter to 'Muzakki', the person who had to conduct purgation, describing to him the full names, parentages and addresses etc., of the witnesses, the title of the case and the matter involved therein

'Muzakki' after enquiry would return his findings in a sealed letter privately

Purgation of the witnesses had to be done after and not before they had given their evidence; as the requisite scrutiny under 'Sharia' about the witnesses being 'Adil', would arise only after their evidence had been recorded and not before

In the present case, evidence of prosecution witnesses was recorded from 4-11-2002 to 5-7-2005 and the Trial Court sought purgation of witnesses on 13-9-2005, which would mean the same was sought after recording prosecution evidence, wherein, the witnesses were found 'Adil'

In presence of earlier purgation report, there was no need to conduct second purgation by the Trial Court on 17-7-2009, which was rightly not relied upon by the court below.