2012 P Cr. L J 614 [Baluchistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
Mst. PERVEEN KOUSAR and others ---Petitioners
Versus
SHAKIL AHMED and others ---Respondents
Criminal Revision No.34 and Criminal Appeal No. 379 of 2009, decided on 30th November, 2011. (a) Qanun -e-Shahadat (10 of 1984) ---
----Art. 140---Cross -examination as to previous statements in writing ---Procedure detailed.
(b) Administration of justice ---
----If any act is required to be done in a pa rticular manner, then it should be done in that
manner, otherwise it should not be done at all.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qanun- e-Shahadat (10 of 1984), Art.140---Qatl -e-amd----Accused not allowed
to confront Investigating Officer with previous statements of witnesses and improvements
made by them in court ---Trial Court had not allowed the accused to confront the Investigating
Officer with the previous statements of the witnesses and improvements made by them in their statements ma de in the court in terms of Art.140 of Qanun- e-Shahadat, 1984---Not allowing
the accused to confront the Investigating Officer during cross -examination with the said
previous statements and not bringing on record the contradictions made by the witnesses amounted to procedural defect and unfairness in trial resulting in miscarriage of justice and
serious prejudice to the accused ---Impugned judgment was consequently set aside and the case
was remanded to Trial Court with the direction to re -examine the Invest igating Officer and
provide an opportunity of cross -examination to accused in view of the observations of the High
Court strictly in accordance
-with law.
Ali Ahmed Lehri for Petitioner/Complainant. Ejaz Sawati for Convict/Appellant.
Haji Liaquat Ali for the State.
Date of hearing: 27th October, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Criminal Appeal No.379 of 2009 has been
filed by convict/appellant Shakil Ahmed son of Niamat Khan challenging the validity of
judgment dated 28th October; 2009 passed by the Additional Sessions Judge -1V, Quetta,
whereby he was convicted and sentenced unde r section 302(b) of the P.P.C. to suffer life
imprisonment as ta'zir and to pay compensation of Rs.200,000 (Rupees two lac only) to the
legal heirs of deceased Muhammad Yaqoob, in default whereof to further undergo S.I. for six
months with the benefit of s ection 382 -B of the Cr.P.C. Whereas the petitioner Mst. Parveen
Kousar has filed Criminal Revision Petition No.34 of 2009 for enhancement of the sentence. Since common question of law is involved in the matter and that both the matters are arising
out of one and same incident, therefore, we propose to dispose of the same by means of this common judgment.
2. The allegation against the convict/appellant is that he committed the murder of deceased Muhammad Yaqoob by means of dagger blows. The matter was repo rted to Police Station
Civil Lines, Quetta by complainant Azam Khan, who happens to be the brother of the deceased, and, consequently, a case vide Crime No.217 of 2008, under section 302 of the P.P.C. was registered against the appellant and he was arrested by the police.
3. After completion of usual investigation, the convict was sent up to face the trial before the Additional Sessions Judge -V, Quetta, who after framing charge and recording evidence of
the respective parties, by means of impugned judgmen t convicted and sentenced the
appellant, as mentioned above, hence(sic.)
4. At the very outset, learned counsel for the appellant drew our attention to the fact that the trial Court refused to allow the cross -examination of Investigating Officer with ref erence to
the dishonest improvements made by the prosecution witnesses. As per appellant's counsel, the appellant was denied an opportunity to confront the Investigating Officer with the previous statements of witnesses and improvements in terms of Article 140 of the Qanun- e-
Shahadat Order, 1984, which is not only failure of justice, but also has caused serious prejudice to the appellant. Before dilating upon the contention of learned counsel, it would be advantageous to reproduce the relevant portion of the order, whereby counsel for the appellant was refused to contradict the Investigating Officer, with the improvements made by the witnesses, which is as under: --
5. The right to cross -examine a witness includes the right to cross -examine him to any
previ ous statement made by him in writing or reduced into writing and relevant to matters in
question. Previous statement made by a witness, if relevant, is admissible in evidence, however, it is necessary that the witness should be confronted with his previous statement,
while he is
. in the witness box and where his attention is not drawn to the previous statement,
such piece of evidence cannot be taken into consideration on account of non- observance of
the provisions of Article 140 of the Qanun- e-Shahadat Orde r, 1984.
6. Although the rule of confrontation does not contemplate any prescribed form, however,
under Article 140 of the Qanun- e-Shahadat Order, 1984 a separate criterion has been
provided to prove the contradictions from the previous statement of a wi tness. The procedure
for obtaining contradictions of a statement recorded in Court from the statement recorded by the police under section 161 of the Cr.P.C. is that the attention of the witness is drawn
towards the said portion of the statement and if the witness admits the said portion, then an
explanation is required to be obtained from the witness about the contradictory statement
made by him in the Court from his statement recorded under section 161 of the Cr.P.C. If he
denies, then the same question i s required to be asked from the Investigating Officer, who
recorded such statement to ascertain whether he had recorded such statement and whether or not the witness has stated such facts in the said statement. After that, such contradiction is required to be exhibited in evidence and then it can be used while assessing the intrinsic
value of evidence of witness.
7. It is a settled principle of law that if any act is required to be done in. a particular manner,
'
then it should be done in that manner, othe rwise, it should not be done at all. Not allowing
the accused to confront ,the Investigating Officer with the previous statements of witnesses
and not bringing on record the contradictions made by the witnesses in their Court -
statements amounts to procedur al unfairness in trial, resulting in miscarriage of justice and
serious prejudice to the I accused. It appears that the trial Judge was ignorant of the above
provisions of law. When learned counsel for the complainant and State counsel were confronted with the above mentioned principle of law, they frankly conceded that the trial
Judge had fallen in error while not allowing the accused to confront the Investigating Officer with the previous statements of the witnesses and improvements made by them in their Court -statements.
For the aforesaid reasons, the appeal is partly allowed. The impugned' judgment is set aside. The case is remanded to the trial Court with directions to re -examine the Investigating
Officer of the case, while providing an opportunity of cross -examination to the accused, in
view of the above observations, strictly in accordance with law. Resultantly, the Criminal Revision Petition No.34 of 2009 is dismissed.
N.H.Q./165/Q
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