2012 Y L R 112
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
MUHAMMAD BAKHSH and 3 others ---Petitioners
versus
THE STATE ---Respondent
Criminal Appeal No.(s) 11 of 2011, de cided on 28th July, 2011.
(a) Criminal Trial ---
----Administration of justice ---Courts of law were not to sit entirely unconcerned during the
proceedings, nor was a court, holding a criminal trial expected to leave it to the contestants to
do what the y liked ---Main purpose of the entire judicial proceedings was to find out truth,
arrive at a correct decision; and to see that no innocent person was punished, merely because
of certain technical omission (s) on his part; or on the part of his counsel ---In case of capital
punishment, accused must be given reasonable opportunity of rebutting the evidence so
brought on record ---Intentional or unintentional lapse on the part of complainant, prosecution
counsel or defence counsel was not to be allowed to stand in the way of justice, because it
had a bearing on the determination of guilt or innocence of accused ---Such a power under
Art.161, Qanun -e-Shahadat, 1984 and S.540, Cr.P.C. had been given to criminal court for the
safe administration of justice ---Fair and free administration of justice was primary and
essentially an obligation cast on the courts of law constituted for the purpose.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S.360 ---Qatl-e-amd---Appreciation of
evidence ---Administration of justice ---Trial of the case had been conducted in violation of the
settled principles of law, resulting in miscarriage of justice in a careless and ridiculous
manner ---Accused persons had been deprived of their fundamental rig hts to be defended by a
proper counsel ---Such practice, would not only shake the confidence of general public, but
would also damage the noble profession of law in the eye of community ---Statement of the
prosecution witness had been recorded in violation o f S.360, Cr.P.C., object of which was to
obtain an accurate record from the witness of what he really meant to say; and to give him an
opportunity of correcting the words which the court or his clerk had taken down ---Before a
deposition was closed, the evi dence must be read over to the witness enabling him to protect
himself against any inaccuracy in the words taken down from his lips ---Serious prejudice had
been caused to accused, resulting in grave miscarriage of justice ---Presiding Officer was
required t o record the evidence in his own hand; and if it was not possible for him, then it
should be taken down by the clerk/reader from direct dictation of the Presiding Judge ---Not a
single bit of tangible evidence was available on record, in the present case, t o connect
accused with the commission of alleged offence ---Eye-witnesses had not uttered a single
word against one accused --Appeal up to the extent of said one accused was allowed and he
was acquitted of the charge and ordered to be released forthwith ---Impugned judgment was
set aside and case was remanded to the Trial Court for retrial of other accused.
Abdul Jalil Lehri for Appellants
Kamal Khan Kakar for P.G. for the State
Date of hearing: 20th June, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed against the
judgment dated 23rd February, 2011, passed by Sessions Judge, Dera Allah Yar, whereby
appellants Muhammad Bakhsh, Zulfiqar, Zulqarnain and Rahim Bakhsh alias Raja were
convicted and sentenced under section 30 2(b) of the P.P.C. to suffer life imprisonment and to
pay Diyat amount to the legal heirs of deceased Azizullah, with benefit of section 382 -B
of the Cr.P.C.
2. The relevant facts, arising out instant appeal, are that on the Fard -e-Bayan (Exh.P/3)
of complainant Hidayatullah dated 22nd May, 2010, a case vide F.I.R. No.24 of 2010
(Exh.P/7), under section 302 read with sections 201, 109 and 34 of the P.P.C., was registered
at Police Station, Suhbat Pur District Jaffarabad. It was alleged by the complai nant that he
owned 18 Acres of land, which he has handed over to his son Azizullah for cultivation, due to
which his other sons and grandsons used to quarrel with Azizullah and advanced threats of
dire consequences. On above date, he, along with his daught ers Farzana and Meena Bibi, was
present in his house, when at about 6 -30 a.m., his son Raheem Bakhsh alias Raja came there,
consulted his son Muhammad Bakhsh and grandsons Ghulam Haider, Zulqarnain and
Zulfiqar that their father has given the entire land t o Azizullah, therefore, he must be killed
and thereafter he went away, whereas his son Azizullah also went to the landed property. At
about 10 -00 a.m., as soon his son Azizullah entered in the house, his grandson Zulqarnain,
having spade (Kudal), spit on t he face of Azizullah and when Azizullah asked as to why he
spit, his son Muhammad Bakhsh, armed with an agriculture tool i.e. 'Tekam', grandsons
Ghulam Haider and Zulfiqar, having an Iron rod (Hambi) and spade `Kudal' respectively
started beating him and c ommitted his murder and thereafter thrown his dead body in a dirty
water dig and buried it with garbage. The complainant further alleged that he and his
daughters appealed not to do so, but they could not. Resultantly, aforesaid F.I.R. was
registered.
3. After registration of the F.I.R., investigation of the case was entrusted to P.W.7 Qadir
Bakhsh, SI, who went to the place of occurrence, exhumed the dead body of deceased,
inspected the site, prepared site sketch, secured blood -stained earth, prepared in quest report
and sent the dead body for examination to BHU, Sohbat Pur. On 23rd May, 2010, he arrested
the accused persons Muhammad Bakhsh, Zulfiqar and Zulqarnain and on the same day,
accused persons Muhammad Bakhsh and Zulfiqar made disclosure and on the basis thereof,
recovery of crime weapons i.e. spade (Kudal) and Teekam, were effected through recovery
memo. On the same day, complainant produced the blood -stained clothes of deceased. He
sent the blood -stained earth and clothes to FSL, Quetta for analys is and remanded the
accused persons to judicial custody. On 14th June, 2010, he arrested accused Rahim Bakhsh,
who made disclosure on 24th June, 2010 in respect of the comission of the offence, at which
he prepared disclosure memo and shifted him to judici al custody. Thereafter, he placed the
papers before S.H.O., who prepared incomplete challans.
4. On the stated allegations, a formal charge was framed and read over to the accused
persons on 23rd November, 2010, to which they did not plead guilty and cla imed trial. The
prosecution, in order to prove the accusation, produced seven witnesses. PW -1 Dr. Barkat
Ali, Medical Officer, BHU Suhbat Pur, examined the dead body of deceased and issued
certificate Exh.P/1. P.W.2 Mst. Meena alleged to have witnessed the occurrence and is also
witness of the site inspection note, recovery memos of crime weapons, blood -stained clothes
etc. P.W.3 Hidayatullah is complainant of the case, who exhibited his Fard -e-Bayan Exh.P/3.
P.W.4 Mst. Farzana and P.W.6 Mst. Shahida also a lleged to have witnessed the occurrence.
P.W.5 Muhammad Shoaib, constable, is witness to the disclosure memo of accused Rahim
Bakhsh Exh.P/5 and P.W.7 Qadir Bakhsh, S.I., is the Investigating Officer of the case. Then
the prosecution closed its side.
5. Thereafter, the appellants were examined under section 342 Cr.P.C. They denied the
prosecution allegation and claimed to be innocent. They, however, did not opt to record their
statements on oath as provided under section 340(2), Cr.P.C. nor produced any evidence in
defence. The trial Court, after close of the parties' evidence, vide impugned judgment,
convicted and sentenced the appellants, as mentioned hereinabove, hence, this appeal.
6. Mr. Abdul Jalil Lehri, learned counsel for the appellants, argued that there is no
incriminating evidence available on record, tending to connect the appellants with the
commission of crime. The evidence produced by the prosecution is self -conflicting and self -
contradictory and on the basis thereof, no conviction could at all be recorded. He further
contended that the medical certificate with regard to injuries is totally contradicted to ocular
version, which has created serious doubt, but the trial Court, without any proper application
of mind, convicted and sentenced t he appellants.
7. Mr. Kamal Khan Kakar, Advocate, representing the state, opposed the arguments of
appellants' counsel and contended that the trial Court, after proper appraisal of evidence and
record, has rightly convicted and sentenced the appellants.
8. We have heard the learned counsel for the parties and have perused the record with
their valuable assistance. At the very out set, we painfully observed that it is a textbook
example case of malpractice, resulting miscarriage of justice. The defence counsel has
cross -examined P.W.6 Mst. Shahida in the following manner: ---
It can easily be inferred from the above trend of cross -examination that either the defence has
joined hands with the prosecution or the evidence has been tampered with by the s taff of the
trial Court with male fide intention or no attention was paid by the Presiding Officer at the
time of recording the statement or may be a result of typical/clerical mistake, showing
inefficiency of the staff. It is a case under section 302 of t he P.P.C., which entails capital
punishment of death or life imprisonment, as such, even if it was/is a typical or clerical
mistake, it was obligatory upon the Presiding Officer of the trial Court as well as the defence
counsel, after going through the con tents of said cross -examination, the same should have
been rectified. There is no cavil to the proposition that the Courts of law are not to sit entirely
unconcerned during the proceedings like an unthinking statue nor is a Court, holding a
criminal trial expected to act only .as a dummy, leaving it to the contestants to do what they
like. The main purpose of the entire judicial proceedings is to find out truth, arrive at a
correct decision and to see that no innocent person is punished merely because of ce rtain
technical omission(s) on his part or on the part of his counsel. In case of capital punishment,
the accused must be given reasonable opportunity of rebutting the evidence so brought on
record. Admittedly, intentional or unintentional lapse on the par t of complainant, prosecuting
counsel or defence counsel is not to be allowed to stand in the way of justice, because it have
a bearing on the determination of guilt or innocence of the accused. Such a power under
Article 161 of the Qanun -e-Shahadat Order, 1984 and section 540 of the Cr.P.C. has been
given to the criminal Court for the safe administration of justice. Fair and free administration
of justice is primary and essentially an obligation cast on the Courts of law constituted for the
purpose. Thus, we are of the opinion that the trial of the instant case has been conducted in
violation of the settled principles of law, resulting in miscarriage of justice in a careless and
ridiculous manner. The appellants have been deprived of their fundamental righ ts to be
defended by a proper counsel. We are afraid that such practice will not only shake the
confidence of general public, but will also damage the noble profession of law in the eye of
community.
9. The record also reveals that the statement of P.W.6 Mst. Shahida has been recorded in
violation of section 360 of the Cr.P.C. which speaks as under: --
360. Procedure in regard to such evidence when completed. ---(1) As the evidence of each
witness taken under section 356 or section 357 is completed, it sh all be read over to him in
the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and
shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is
read ove r to him, the Magistrate or Sessions Judge may instead of correcting the evidence,
make a memorandum thereon of the objection made to it by the witness, and shall add such
remarks as he thinks necessary.
(3) If the evidence is taken down in a language di fferent from that in which it has been
given and the witness does not understand the language in which it is taken down, the
evidence so taken down shall be interpreted to him in the language in which it was given, or
in a language which he understands.
The object of the above provision to obtain an accurate record from the witness of what he
really means to say and to give him an opportunity of correcting the words which the
Sessions Judge or his clerk has taken down. Before a deposition is closed, the e vidence must
be read over to the witness, enabling him to protect himself against any inaccuracy in the
words taken down from his lips. It is not sufficient compliance with the section merely hand
over to the witness his deposition so that he may read it o ver himself. Although the
deposition sheet endorsed a certificate of Sessions Judge, which states that the position was
read out to the witness and that the witness admitted it to be correct, yet the record would
show and suggest to believe that no proper attention was given by the Presiding Officer at the
time of recording the statement of said witness. Admittedly, non -compliance with the strict
provisions of this section is only an irregularity, which is cured by section 537 of the Code of
Criminal Proced ure, but in the instant case a serious prejudice has been caused to the
appellants, resulting in grave miscarriage of justice. The Presiding Officer was required to
record the evidence in his own hand and if it was not possible for him, then it should be t aken
down by the clerk/reader from direct dictation of the Presiding Judge. Needless to mention
here that under chapter 25 of the Code of Criminal Procedure, the evidence of each witness
was to be taken down in writing in the language of court by the Presi ding Officer, or in his
presence and hearing and under his personal direction and superintendence and signed by
him.
10. It would be relevant to mention here that not a single bit of tangible evidence is
available on record to connect the appellant Rahim Bakhsh alias Raja with the commission of
the alleged offence. The eye -witnesses i.e. P.W.2 Mst.Meena, P.W.3 Hidayatullah, P.W.4
Farzana and P.W.5 Mst. Shahida have not uttered a single word 'against appellant Rahim
Bakhsh alias Raja, as such, the appeal u p to the extent of accused Rahim Bakhsh alias Raja
son of Hidayatullah is allowed and he is acquitted of the charge. He be released forthwith, if
not required in any other case.
In the light of what has been stated and discussed above, the impugned judgm ent is set aside
and case is remanded to the trial Court for re -trial.
Order accordingly.
H.B.T./71/Q 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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