2018 M L D 1529
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ
NOOR MUHAMMAD--- Petitioner
Versus
SPECIAL JUDGE ANTI -TERRORISM COURT, KHUZDAR and 5 others ---
Respondents
C. P. No.457 of 2016 and Crl. Revision No.23 of 2017, decided on 27th February, 2018.
Criminal Procedure Code(V of 1898) ---
----S. 540---Material witness, re- summoning of ---Scope ---Four prosecution witnesses had
resiled from their statements recorded under S.161, Cr.P.C.---Complainant and Special
Prosecutor r equested the Trial Court to declare the said witnesses hostile, but the request was
rejected ---Complainant filed application for calling of said witnesses as well as other
witnesses mentioned in the application as their statements were important and releva nt for
just decision of the case, but was rejected ---Validity ---Record showed that the statement of
four witnesses recorded under S.161, Cr.P.C. to some extent were informative in nature if the same be recorded before the court in its true perspective---Sa id witnesses had resiled due to
the reasons best known to them ---Neither the said witnesses had been declared hostile nor
any opportunity of cross -examination was afforded to the prosecution---Application under
S.540, Cr.P.C. for calling of witnesses of the complainant/ petitioner was declined without stating any reason ---Such decline, prima facie, caused prejudice to the prosecution---Petitions
were partly allowed by setting aside the impugned orders and case was remanded to the Trial Court with the direction that application under S.540, Cr.P.C. of complainant/petitioner was to be deemed to be pending along with the request of recalling of four hostile witnesses with the opportunity to cross -examine them ---Constitutional/revision petitions were disposed of
accordingly circumstances.
Habib -ur-Rehman for Petitioner along with Petitioner.
Muhammad Ibrahim Lehri for Respondents.
Ms. Noor Jehan Kahoor, A.P.G. for the State.
Date of hearing: 13th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Constitutional
Petition No.457/2016 and Civil Revision No.23/2017 filed by the petitioner Noor
Muhammad son of Usman, wherein seeking common relief on both petitions, C.P No.457/2016 filed with following prayers:
" ..It is therefore resp ectfully prayed that after calling record from the learned Special
Judge Anti -Terrorism, Khuzdar at Mastung and after perusal of the same, this Hon'ble
Court may be pleased to set -aside the impugned order dated 09.04.2016 and the
learned trial Court to dec lare the witnesses i.e. PW -5 to PW -8 hostile and the
prosecution be given opportunity to cross -examine the said witnesses, in the interest
of justice and equity."
Whereas in Criminal Revision Petition No.23/2017 seeking following relief:
"It is therefore r espectfully prayed that after calling record from the learned
Additional Sessions Judge -VII, Quetta and after perusal of the same, this Hon'ble
court may be pleased to set -aside the impugned order dated 13.06.2017 and allow the
applicant to produce the wit nesses before the trial court, in the interest of justice and
equity."
2. The main crux of both petitions are that FIR No.44/2012 was registered with Police
Station City Mastung under sections 302, 34, P.P.C. read with section 7 Anti -Terrorism Act,
1997 wi th the averments that on 21st May, 2012 at 05:30 AM, the complainant IP/SHO
received information that a dead body of a person lying on Alfalah Road, whereupon he
along with others police officials rushed towards the place and found a dead body on Alafalah Road near Agriculture Bank in a blanket. He was murdered by means of firearm and
later on identified as Shahzaman son of Noor Muhammad. Consequent, whereupon initially co-accused Amjad Khan son of Abdul Wahab and Abdul Baqi son of Abdul Ghafoor were
arrest ed, however, after completion of trial they were acquitted of the charge and the other
accused persons were convicted under section 21- L of Anti -Terrorism Act. It is further
submitted that thereafter accused persons namely Ali Ahmed, Mir Ahmed, Nazir Ahmed and
Wali Muhammad (respondents Nos.1 to 4) applied for bail before arrest to the trial Court, which was rejected on 9th February, 2015 due to their nonappearance and thereafter they have approached this Court in Criminal Bail Application No.40/2015 and the same was allowed and the learned trial Court was directed to decide the same in accordance with law. In pursuance of above order, the learned trial Court granted bail before arrest to the accused persons on 17th July, 2015.
3. Being aggrieved, the petiti oner filed Miscellaneous Bail Cancellation Application
No.127/2015 before this Court and pre -admission notices were issued to the accused persons.
However, during the pendency of the application, this Court observed that in the said incident
a girl namely Mst. Zaib -un-Nisa was also murdered and to her extent no FIR was registered
by the concerned Police Authorities and on direction of this Court FIR No.15/2015 was registered by the Police authorities. As the concerned officer was unable to investigate the matter properly thus by the direction of this Court, the above FIR was transferred from Police
Station City Mastung to Crime Branch for investigation vide order dated 2nd May, 2016. It is further submitted in the petition that on 9th April, 2016 the prosecution produced four witnesses namely PW -5 Syed Haider Shah, PW -6 Haji Suleman, PW -7 Taqari Moheem Khan
and PW -8 Haji Abdul Karim. While appearing in the witness box they resiled from their
statements of section 161, Cr.P.C. The counsel for the petitioner and Special Prosecutor requested the trial Court to declare the witnesses as hostile, but their request was rejected vide order vide order dated 9th April, 2016.
4. Being aggrieved, the petitioner filed the instant petition No.457/2016 before this
Court and meanwhile the petitioner being complainant filed an application under section 540,
Cr.P.C. for calling of aforesaid witnesses brought resiled from their statement recorded under
section 161, Cr.P.C. as well as for calling of certain witnesses names whereof mentioned in
the application under section 540, Cr.P.C. as their statements are of important and relevant in nature for just decision of case, but the learned trial Court after hearing the parties, rejected the application vide order dated 13th June, 2017. Hence petitioner filed Criminal Revision Petition No.23/2017 for setting aside of above order and allowing the application of petitioner filed under section 540, Cr.P.C. for calling of said witnesses including private and official respondents.
5. Though the learned counsel for the petitioner was present, but the petitioner preferred
to argue the matter by itself, as such, he was permitted to argue the matter, the petitioner contended that entire case of prosecution revolved around the statement of star wi tnesses i.e.
PW-5 Syed Haider Shah, PW -6 Haji Suleman. PW -7 Takari Moheem Khan and PW -8 Abdul
Kareem they have initially in their statements under section 161, Cr.P.C. specifically
nominated the accused persons for commission of offence, but however, there after due to
threat and coercion of accused persons, being highly influential, the witnesses have resiled
while recording statements before the Court; that the complainant as well as the Public Prosecutor strongly requested that the same be declared as hos tile and opportunity of cross -
examination be offered, but such opportunity was withheld; that due to the refusal the petitioner was highly deprived from the opportunity of cross -examination of hostile witnesses
and the case of prosecution would badly effec ted if the witnesses mentioned in the
application under section 540, Cr.P.C. are not recalled for recording evidence then there is every likelihood that the accused/respondents would be acquitted of the charge case of double murder.
6. Conversely the learn ed counsel for the private respondents in both petitions
vehemently opposed the arguments so advanced by the petitioner and contended that the prosecution has failed to prove its case through confidence inspiring evidence and the witnesses so brought on re cord did not support the version of prosecution and their recalling
would be futile exercise and no fruitful result could be achieved. He further contended that the matter has been prolonged by the conduct of petitioner by filing of miscellaneous applicati ons in the trial Court as well as before this Court, just to harass and blackmail the
respondents; that the trial Court after proper appreciation had rightly rejected the application/ request of the petitioner.
7. On the other hand, the learned Additional Prosecutor General appearing on behalf of
the State has fully supported the version of petitioner.
8. Heard the learned counsel for the parties and perused the record minutely, which
reveals that FIR No.44/2012 was registered by the SI/SHO P.S City Mastung under sections 302, 34, P.P.C. read with section 7 Anti -Terrorism Act, 1997 against unknown accused
persons for commission of murder of unknown deceased, however, thereafter his name was known as Shahzaman son of Noor Muhammad (petitioner) and duri ng the course of
investigation of referred to FIR, it was also brought in the notice of this Court that murder of one girl namely Zaib -un-Nisa was also taken place, thus and on the direction of this Court
FIR No.15/2016 was registered in the same Police St ation against the private respondents and
others and both the cases were initially tried by the ATC and thereafter transferred to the ordinary court by the orders of this Court and thereafter on the application of petitioner, the case was transferred from Sessions Judge, Mastung to Additional Sessions Judge -VII, Quetta
for further proceedings.
9. The case of petitioner/ prosecution was mainly relied upon the star witnesses i.e PW -5
Syed Haider Shah, PW -6 Haji Suleman, PW -7 Taqari Moheem Khan and PW -8 Haji A bdul
Karim, and also on the witnesses named in the application filed under section 540, Cr.P.C.
Perusal of the record revealed that initially the statements of above four witnesses were recorded under section 161, Cr.P.C. on 3rd July 2012. Their (witnesses ) statements were to
the effect that they have been informed by Wadera Abdul Rasheed Lehri and others that they have murdered Shahzaman son of Haji Noor Muhammad and Zaib- un-Nisa Lehri on account
of Siya Kari, but when appeared before the trial Court resil ed from their statements under
section 161, Cr.P.C., as such, on the day of recording evidence before the trial Court the learned counsel for the complainant along with Public Prosecutor requested for declaring them as hostile, however, their request was t urndown vide impugned order dated 9th April,
2016 and thereafter the application for calling of the other witnesses filed under section 540, Cr.P.C. by the petitioner was also declined by the learned trial Court vide order dated 13th June, 2017. After thor ough examination of record and hearing the arguments of the parties we
have safely arrived to the conclusion that the statements of above mentioned four witnesses recorded under section 161, Cr.P.C. to some extent have informative in nature if the same be recorded before the Court to its true perspectives, but for the reasons known by them (witnesses) they have resiled from their statements recorded under section 161, Cr.P.C. The perusal of record reflects that neither the witnesses have been declared hosti le nor any
opportunity of cross -examination was afforded to the prosecution. While the application
under section 540, Cr.P.C. for calling of witnesses of the petitioner was also declined without stating any reason. Such declining of opportunity prima facie cause prejudice to the
prosecution. The trial Court required to record reasons for its decision which was not done.
In view of the above, the petitions are partly allowed and impugned order dated 9th
April 2016 and 13th June 2017 passed by the trial are set aside and the case is remanded to the learned trial Court with the direction that the application under section 540, Cr.P.C. of petitioner (complaint) deemed to be pending along with the request of recalling of four hostile witnesses with an opportunit y to cross -examine them, with further directions to decide
the same in accordance with law after providing full and fair opportunity to the parties in shortest possible time, whereafter proceed with the case in accordance with law. Petitions are disposed of in the above terms.
JK/26/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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