2022 P Cr. L J 1308
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
Sheikh ARSALAN ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 393 of 2019, decided on 13th September, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 392 & 34---Qatl -i-amd, robbery, common intention---Appreciation of
evidence--- Accused was charged that he along with co -accused snatched mobile phone and
also made firing upon the brother of the complainant, due to which he died--- Record showed
that the Trial Court in the impugned judgment neither framed any point for determination in
respect of unnatural death of the deceased nor any finding had been given thereof ---Said
facts were fatal to the prosecution case--- Appeal was allowed by setting aside convictions
and sentences recorded by the Trial Court and the case was remanded to the Trial Court for decision afresh after recording the testimony of witnesses of recovery memo along with case property.
Farrukh Sayyar and 2 others v. Chairman, NAB Islamabad and others 2004 SCMR 1
rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 392 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl -i-amd,
robbery, common intention---Appreciation of evidence ---Statement of accused was recorded
under S. 342, Cr.P.C. ---Scope ---Accused was charged that he along with co -accused
snatched mobile phone and also made firing upon the brother of the complainant, due to which he died ---Statement of the accused persons in terms of S. 342, Cr.P.C., had not been
recorded in accordance with its spirit ---Such departure was not permissible ---Record
transpired that the Trial Court, while convicting the accused, relied upon recovery of the crime weapon, i.e. pistol, and the allegedly snatched Nokia mobile phone of the deceased, but the Trial Court did not put any question in respect of recovery of crime weapon and alleged snatched mobile phone to the accused while recording his statement under S. 342, Cr.P.C. ---If any piece of evidence was not put to the accused i n his statement recorded under
S. 342, Cr.P.C., the same could not be used for his conviction---Appeal was allowed by setting aside convictions and sentences recorded by the Trial Court and the case was remanded to the Trial Court for decision afresh after recording the testimony of witnesses of
recovery memo along with case property.
Muhammad Shah v. The State 2010 SCMR 1009 and Qaddan and others v. The State
2017 SCMR 148 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 392 & 34---Qatl -i-amd, robber y, common intention ---Appreciation of
evidence--- Recovery of weapon of offence, mobile phone and crime empties ---Scope ---
Accused was charged that he along with co- accused snatched mobile phone and also made
firing upon the brother of the complainant, due t o which he died ---During the investigation
the alleged crime weapon, i.e. pistol along with snatched mobile phone, was recovered from
the possession of the accused, which was taken into possession through a recovery memo in the presence of the witnesses ---Crime empties which were allegedly recovered from the
place of occurrence and the crime weapon allegedly recovered from the possession of the accused were also sent to the Firearm Expert ---Investigating Officer also obtained a positive
report of a Firearm Expert ---Marginal witnesses of the recovery memo were cited as
prosecution witnesses in the challan filed against the accused ---Marginal witnesses was also
witness of the recovery memo of a copy of Call Data Record (CDR), who appeared before the court ---Sa id witness only gave a statement to the extent of recovery of CDR, but the
public prosecutor did not exhibit the recovery of crime weapon and alleged snatched mobile phone before the Trial Court ---Neither the material prosecution witness was summoned or
examined in the trial nor the case property---Appeal was allowed by setting aside convictions
and sentences recorded by the Trial Court and the case was remanded to the Trial Court for decision afresh after recording the testimony of witnesses of recovery me mo along with case
property.
(d) Criminal Procedure Code (V of 1898) ---
----S. 540 ---Summoning of witness ---Scope ---If evidence of any witness appears to the Court
to be essential to the just decision of the case, it was the power of the Court to summon a nd
examine or recall and re -examine any such person. [p. 1316] E
Muhammad Azhar v. Muhammad Iqbal and others PLD 1984 SC 95 rel.
Syed Ayaz Zahoor for Appellant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 2nd September, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant Sheikh Arsalan son of Sheikh Nazeer,
having been involved in case FIR No.07/2017 dated 21.05.2017 registered under sections 302, 392 and 34, P.P.C. at Police Station Jinnah Town Quetta, was tried by the learned Additio nal Sessions Judge -VI, Quetta ("trial court") and on completion thereof by means of
the judgment dated 24.09.2019 ("impugned judgment") convicted and sentenced the
appellant in the following terms: -
"25. ....Therefore, the accused Sheikh Arsalan son of Sheikh Nazeer is convicted for
an offence under section 302(b), P.P.C. and sentenced to suffer for Life Imprisonment with direction to pay Rs.500,000/ - (Rupees Five Lacks), as compensation under
section 544 -A, Cr.P.C. to the heirs of the deceased Najibullah. In default of payment
of the compensation amount of Rs.500,000/ - the accused Sheikh Arsalan shall further
to suffer simple imprisonment for a period of Six (06) months. The accused Sheikh Arsalan has already committed robbery under section 390, P.P.C. whi ch is punishable
under section 392, P.P.C. Therefore, the accused Sheikh Arsalan is further convicted and sentenced under section 392, P.P.C. for a period of four (04) years. He is also directed to pay fine of Rs. 10,000/ -. In default of payment of fine, he shall further to
suffer S.I for three (03) months. The sentences awarded to the accused Sheikh Arsalan in case FIR No. 71/2017 and 75/2017 of P.S Jinnah Town, Quetta shall run concurrently as connected cases. The Benefit of section 382- B, Cr.P.C. is also
extended in favour of the accused Sheikh Arsalan from the date of his arrest i.e. 04.06.2017."
2. Aggrieved from the impugned judgment, the appellant Sheikh Arsalan son of Sheikh
Nazeer, has assailed his conviction and sentence through this criminal appea l.
3. The prosecution story as disclosed in the complaint (Ex.P/1 -A) recorded on the
statement of complainant Asadullah, son of Naimatullah (PW -1) is that on 21.05.2017 at
about 1:17 a.m. his younger brother Saifullah informed him through telephone that someone had made firing upon his brother Najeebullah who was doing business of property at Samanguli Road, who received injuries and lying in Civil Hospital Quetta. On the said
information he reached at Civil Hospital, and there he came to know that on the n ight of the
incident his brother had gone to his friend's house when he was coming back to his house on foot at about 12:52 p.m. when he reached I.T University near Smart School some unknown person snatched his mobile phone and also made firing upon him, d ue to which he received
injuries on his abdomen. He succumbed to the injuries at Civil Hospital. Hence, the crime report.
4. After completion of the usual investigation, the challan was prepared and submitted
before the trial court, wherein the appellant/ convict was formally charge -sheeted to which he
did not plead guilty and claim trial. The prosecution in order to prove its case produced twelve witnesses in all. After the closure of the prosecution witnesses, the statement of the appellant was recorded u nder section 342, Cr.P.C., wherein he denied the prosecution
evidence and professed innocence. The appellant opted not to record his statement on oath as envisaged under section 340(2), Cr.P.C., and also did not produce any witness in his defence.
5. On co nclusion of the trial, after hearing arguments from both the parties, the trial
court convicted and sentenced the appellant in the aforesaid terms. Whereafter, the instant appeal was filed.
6. Learned counsel for the appellant argued with great vehemence t hat 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 doubt s, which entitle the appellant to
outright acquittal. He contended that there is no eye -witness of the alleged occurrence, and it
is a case of circumstantial evidence, which was not proved by the prosecution. He submitted that the accused was convicted on the basis of recovery of the alleged Nokia mobile phone of
deceased Najeebullah and crime weapon pistol, which were not produced before the court,
and even the trial court relied upon the said pieces of evidence but did not put questions in
the statement o f the appellant recorded under section 342, Cr.P.C. in respect of recovery of
the said mobile phone and crime weapon, i.e. pistol. The last limb of his arguments was that despite the fact that there is no eye- witness of the occurrence, the trial court has erroneously
convicted the appellant.
7. The learned counsel appearing on behalf of the State contended that the recovery
witness of the crime weapon and allegedly snatched Nokia mobile phone was neither summoned nor called for by the trial court despite the fact that the said witnesses were cited in the challan; that even the case property, i.e. the unlicensed crime weapon and snatched Nokia mobile phone was not examined during the trial and in this respect the trial court has failed to exercise jurisdictio n under section 540, Cr.P.C.; that examination of the material
witnesses of the case in a trial has not been conducted in accordance with law; that opportunity of fair trial has been withheld, and the public prosecutor including the trial Court without ver ifying the record of the case concluded the trial, which caused a grave
miscarriage of justice. He lastly contended that this case may be remanded back with direction to the trial court to re -write the judgment after examining the recovery witnesses on
the basis of material available on record.
8. Arguments advanced from both sides have been heard. We have also minutely gone
through the record available on file with the able assistance of learned counsel for the parties.
9. Before attending merits of the ca se, here, it is necessary to refer to the provision of
section 423(1)(b) of the Code, which reads as under:
"(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction
subordinate to such Appellate Court or sent for trial,...."
Therefore, an order of retrial is never illegal unless the findings for such a conclusion
are established to be so. Reverting to merits of the case, after going th rough the evidence
available on record and hearing the learned counsel for the parties, we have found that it is a case of inadequate evidence from the prosecution side while from the side of the convict/appellant, the case was also not properly conducted for one reason or the other and last the trial court has also failed to call for proper evidence of the parties or itself to arrive at a just decision in the case.
10. The trial court in the impugned judgment neither framed any point for determination
in respect of unnatural death of the deceased Najeebullah nor any finding had been given
thereof. In the case of Farrukh Sayyar and 2 others v. Chairman, NAB Islamabad and others, 2004 SCMR 1, the Hon'ble Supreme Court of Pakistan remanded the case to the tria l Court,
due to non- framing of point for determination and observed as under:
"It is a mandatory requirement of section 367, Cr.P.C. that a Court while writing a
judgment shall refer to the point or points for determination, record decision thereon and al so give reasons for the decision. The Court shall also specify the offence of
which, and the section of the Pakistan Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced. In the present case the learned trial Court overlooked the mandatory provisions of section 367, Cr.P.C. and rendered a judgment which falls short of the requisite standard. Failure to specify the points for determination as required under section 367, Cr.P.C. is an omission which is not curable under section 537, Cr.P.C."
11. At the outset, it may be observed that statement of the appellants in terms of section
342, Cr.P.C. had not been recorded in accordance with its spirit, and such departure therefrom is not permissible. The use of the word "shall" in the latter part of subsection (i) of
section 342, Cr.P.C. indicate that the examination of the accused is mandatory and not discretionary. If after the conclusion of trial it is found by the trial court that any circumstances appearing in the evidence against the accused is lightly helpful towards his conviction, then the court would not be competent to take the same into account without questioning him on that point so that accused may be able to explain his position properly.
12. The reco rd transpires that the trial court, while convicting the appellant, relied upon
recovery of the crime weapon, i.e. pistol, and the allegedly snatched Nokia mobile phone of the deceased, but the trial court did not put any question in respect of recovery of crime
weapon and alleged snatched mobile to the appellant while recording his statement under
section 342, Cr.P.C. Under the law, if any piece of evidence is not put to the accused in his statement recorded under section 342, Cr.P.C. the same cannot be us ed for his conviction,
which is exactly the position in the instant case. In this respect, reliance is placed on the case titled as Muhammad Shah v. The State (2010 SCMR 1009), wherein the Hon'ble Supreme Court has held as under:
"11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross -examination for
convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumst ances
appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination- in-chief are put to the accused but the
circumstances appearing in cross -examination or re -examination are also required to
be p ut to the accused, if they are against him, because the evidence means
examination -in-chief and re- examination, as provided under Article 132 read with
Articles 2(c) and 71 of Qanun- e-Shahadat Order, 1984. The perusal of statement of
the appellant, under s ection 342, Cr.P.C., reveals that the portion of the evidence
which appeared in the cross -examination was not put to the accused in his statement
under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well- settled that if any piece of evidence
is not put to the accused in his statement under section 342, Cr.P.C. then the same
cannot be used against him for his conviction. In this case both the Courts below without realizing the legal posit ion not only used the above portion of the evidence
against him, but also convicted him on such piece of evidence, which cannot be sustained".
Reliance can also be placed in the case of Qaddan and others v. The State reported as
2017 SCMR 148; the Hon'ble Apex Court has held as follows:
"3. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence not put to an accused person at the
time of recording of his statement under section 342, Cr.P.C. cannot be considered against him."
In view of what has been observed hereinabove, coupled with the dictum laid down
by the Hon'ble Supreme Court in the cases ref erred to hereinabove, we are of the considered
opinion that the trial court, while passing the impugned judgment, has committed illegality and violated the provisions of section 342, Cr.P.C.
13. The other aspect of the case is that during the investigation the alleged crime weapon,
i.e. pistol along with snatched Nokia mobile phone, was recovered from the possession of the appellant, which was taken into possession through a recovery memo in the presence of the witnesses. The crime empties which were allegedly recovered from the place of occurrence, and the crime weapon allegedly recovered from the possession of the appellant were also sent to the Firearm Expert. The investigation officer also obtained a positive report of a
Firearm Expert (Ex.P/12 -D). The m arginal witness of the recovery memo namely Shahid
Qadeer SI and Kamran ASI, were cited as prosecution witnesses in the challan filed against the appellant. The marginal witness Shahid Qadeer was also witness of the recovery memo of a copy of Call Data Rec ord (CDR), who appeared before the court as PW -9. He only gave a
statement to the extent of recovery of CDR, but the public prosecutor did not exhibit the recovery of crime weapon and alleged snatched mobile phone before the trial court. So far, the other marginal witness, i.e. Kamran ASI is concerned; neither the aforesaid material prosecution witness was summoned or examined in the trial nor the case property, i.e. unlicensed pistol and snatched mobile phone allegedly recovered from the appellant's posses sion were produced before the court. Moreso, the last order sheet of the trial court
dated 19.09.2019 reads as under:
"Accused Sheikh Arsalan, present in custody. The State Counsel and counsel for the accused are present. Statement of witness Nizam -ul-Haq was recorded. Prosecution
side is closed. Adjourned for statement of accused under section 342, Cr.P.C. on 20.09.2019."
14. From the above, it transpires that the prosecution side was closed in haphazard
without examining the record of the cas e, without assigning any reason thereto and without
exhibiting the case property crime weapon, i.e. pistol and snatched Nokia mobile phone allegedly recovered from the possession of the appellant. In this regard, we would say that
the Code provides only tw o provisions which deal with the examination and production of
witnesses, i.e. 265 -F and 540. The former is the absolute prerogative of the parties, i.e.
prosecution and defence, and their discretion to examine; withhold or give -up any witness or
document cannot be questioned, but the court can competently consider the consequences
thereof. However, the latter is an exception. It is noteworthy to further elaborate that
provision of section 265- F of the Code provides a mechanism for the prosecution and
defen ce (accused) to get a witness(s) or document(s) exhibited at their own while by the
provision of section 540, Cr.P.C. is not limited for the benefit of any of either side but it is
aimed for just decision.
15. The provisions of section 540, Cr.P.C. cast a legal duty upon the Court/Judge to see
that the witnesses, who have been cited by the prosecution, are produced by it or, if summonses are issued, they are actually served on the witnesses, if the trial Court is of the opinion that the material witnesses have not been examined. It should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all its witnesses, but that does not necessarily mean that the prosecution can choose not to examine any witness. T he public or Special Prosecutor, who conducts the trial, has a
statutory duty to perform. He is not supposed to be negligent or take things in a light manner.
The Court also is not expected to accept the version of the prosecution as if it is sacred. It ha s
to apply its mind on every occasion. Non- application of mind by the trial Court has the
potentiality to lead to the paralysis of the conception of a fair trial. The trial Court cannot be
a silent spectator or a mute observer. If evidence of any witness a ppears to the Court to be
essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re- examine any such person.
16. Section 540, Cr.P.C. should be resorted to only with the object of finding out the truth
or obtaining proper proof from such facts, which will lead to a just and correct decision of the case. The object of aforesaid provision simultaneously imposes a duty on the Court to determine the truth and to render a just decision. Section 540, Cr.P.C. has two parts; in the first one, the discretion lies with the Court to examine or not to examine any person as a witness, but according to the second part of the section, the Court is bound to examine any person as a witness, if his evidence appears to be e ssential for just decision of the case
irrespective of the fact that any party had requested for it or not. This legal proposition has been explained by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Azhar v. Muhammad Iqbal and others (PLD 1 984 SC 95). It had been observed at page 118 of the
judgment as under:
"The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/admit the same by virtue of power under section 540, Cr.P.C. It reads as follows: "Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summ oned as a witness, or recall and re -examine any
person already examined; and the Court shall summon and examine or recall and re -
examine any such person if his evidence appears to it essential to the just decision of the case."
"This provision is divided into two parts: one where it is only discretionary for the
Court to summon a Court witness suo motu or on application, and the second part
where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is t hat the evidence to be summoned under this part should
appear to the Court to be essential to the just decision of the case. As has already been observed the evidence in question relating to Nikah was undoubtedly essential for the just decision of the case . In the circumstances of this case the failure of the learned
trial Judge to act under the said part of section 540, Cr.P.C. has not only deprived the appellate Courts of essential material for the justice decision of the appeal, but has also occasioned m iscarriage of justice."
The observation at page 120 of the above judgment read as under:
"The failure of the parties to produce sufficient evidence after introducing this subject should not have deterred the trial Court in performing the duty under the s econd part
of section 540, Cr.P.C. The trial Court has, as discussed above, failed to do so and therefore on this account also the case merits remand for fresh trial."
The legal position was further explained at page No.121, which is reproduced:
"It need s to be observed that for purpose of acting under section 540, Cr.P.C.
(whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if
evidence in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different."
17. In the instant case, the appellant was arrested and after recovery of crime weapon and
the allegedly snatched mobile of the deceased Najeebullah from possession of the appellant through recovery memo attested by the prosecution witnesses namely, Shahid Qadeer SI and Kamran ASI, who were also cited as witnesses in the challan but due to negligence of special prosecutor neither aforesaid material witnesses were examined, nor the case property was produced. The trial court, while conducting the trial, had not even bothered to verify whether the prosecution exhausted its material witnesses along with the case property; thus the impugned judgments cannot be sustained. For a just decision of the case, the Court was placed under obligation to call for proper evidence from both sides and also to call for necessary evidence on its own, if need be, as envisaged by section 540, Cr.P.C.
18. Such being the case, we earnestly feel that we arc 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.
Accordingly, we partly 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 recording the testimony of witnesses of recovery memo along with case property, thereafter recording the statement of the accused/appellant under section 342, Cr.P.C. and provide an opportunity for recording his statement under sectio n 340(2), Cr.P.C.
if the defense so decides in accordance with law within a period of three months after the
announcement of this judgment.
JK/172/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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