' ASIF SAEED KHAN KHOSA, J.--- Zahid Karim, Hafiz Shafiqur-Rehman and Habib-ur-Rehman appellants were convicted on two counts of an offence under section 302, P.P.C. Read with section 34, P.P.C. Vide judgment, dated 16-3-1999 handed down by Sardar Mashkoor Ahmad Sindu Judge, Anti-Terrorism Court-II, Multan and were sentenced to death each as Qisas on each count and were ordered to pay a sum of Rs,5,00,000 each on each count to the heirs of the two deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each on each count. All the three appellants were also convicted on two counts of an offence under section 324, P.P.C. Read with section 34, P.P.C. And were sentenced to rigorous imprisonment for ten years each on each count and to pay a fine of Rs,25, 000 each on each count or in default of payment thereof to undergo rigorous imprisonment for one year each on each count. The amount of fine, if realized, was ordered to be given to the injured victims by way of compensation. The above mentioned three appellants were further convicted by the learned trial Court on two counts of an offence under section 337-A(i), P.P.C. Read with section 34, P.P.C. And were sentenced to rigorous imprisonment for two years each on each count and to pay a sum of Rs,10,000 each as Daman to each victim on each count. All the sentences of imprisonment passed against the appellants were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to them. Zahid Karim appellant has filed Criminal Appeal No,9 of 1999, Hafiz Shafiqur-Rehman has preferred Criminal Appeal No,10 of 1999 and Habib-ur-Rehman appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,11 of 1999. We have heard all these appeals together along with Murder Reference No,4 of 1999 seeking confirmation of the sentences of death passed by the learned trial Court against the appellants. We propose to decide all these matters together through the present consolidated judgment.
2. During the pendency of the above mentioned appeals Criminal Miscellaneous No,108/M of 2002 had been filed before this Court in Criminal Appeal No,9 of 1999, Criminal Miscellaneous No,109/M of 2002 had been filed in Criminal Appeal No,10 of 1999 and Criminal Miscellaneous No,110/M of 2002 had been filed in Criminal Appeal No,11 of 1999 wherein it had been maintained that the trial of the appellants had been ordered by the competent authority to be held inside the premises of New Central Jail, Multan but on 25-9-1998, 28-9-1998, 14-10-1998, 10-11-1998, 11-11-1998, 12-11-1998, 26-11- 1998, 1-12-1998, 10-12-1998 and 2-2-1999 the Presiding Officer of the trial Court namely Sardar Mashkoor Ahmad Sindhu, Judge, Anti-Terrorism Court-II, Multan never conducted any proceeding within the jail premises and through false preparation of the judicial record it had been shown that on the said dates statements of P.Ws. Nos.13, 14, 15, 16, 18, 19, 20, 21, 22, 23 and 24 had been recorded within the jail premises in the presence of the appellants. Such a controversy could not be resolved by us without examining the record of the said jail so as to establish as to whether the above mentioned Presiding Officer had actually visited the said jail on the above mentioned dates and had conducted proceedings in the appellants' trial within the jail premises on those dates or not.
The Superintendent, New Central Jail, Multan has appeared before this Court in person today along with the record of visits to the said jail on the above mentioned dates. We have gone through the original record with the assistance of the learned counsel for the parties as well as the Superintendent, New Central Jail, Multan and have found that the Presiding Officer of the trial Court had not visited the relevant jail on 25-9-1998 and on 10-12-1998 and that no proceeding of the appellant's trial had been held on those dates within the premises of that jail. The judicial record of the present criminal case, however, shows that the statements of three eye-witnesses namely Ahmad Ali (P.W.12), Khadim Hussain (P.W.13) and Abdul Sattar (P.W.14) had been recorded by the trial Court on 25-9-1998 and the statement of a recovery witness namely Gul Muhammad (P.W.22) and the statement of an Investigating Officer namely Muhammad Riaz, S.-I. (P.W.23) had been recorded by the trial Court on 10-12-1998 inside the jail premises. We have also observed that affidavits have already been submitted by Malik Sarfraz Hussain Dogar, Advocate and Syed Athar Hussain Bokhari, Advocate, two of the learned counsel representing the appellants before the trial Court, to the effect that on the above mentioned dates of hearing the trial Court had conducted the proceedings of the appellants' trial outside the jail premises and in the absence of the appellants. In the presence of the above mentioned documentary evidence based on the official record of the relevant jail we have no other option but to conclude that the statements of P.W.12, P.W.13, P.W.14, P.W.22 and P.W.23 had been recorded by the trial Court in the absence of the appellants and at a place other than the notified place of the appellants' trial, i,e, New Central Jail, Multan. This was done by the Presiding Officer absolutely in violation of the mandatory provisions of section 353, Cr.P.C. Such contravention of the provisions of section 353, Cr.P.C. Cannot be termed as an error, omission or irregularity so as to be curable under section 537, Cr.P.C. As such a violation of the mandatory provisions of section 353, Cr.P.C. Was nothing but a downright illegality vitiating the relevant proceedings of the appellants' trial.
3. For what has been discussed above all the above mentioned appeals are allowed, the convictions and sentences of all the three appellants recorded by the learned trial Court are set aside and the matter is remanded to the learned Judge, Anti-Terrorism Court-I, Multan for recording the statements of P.W.12, P.W.13, P.W.14, P.W.22 and P.W.23 afresh within the premises of the relevant jail in the presence of the appellants and then to decide the case afresh after hearing fresh arguments of the learned counsel for the parties.
4. Murder Reference No,4 of 1999 is answered in the negative and the sentences of death passed by the trial Court against the appellants are not confirmed.
5. Before parting with this judgment we must observe that we have been dismayed by the fact that the Presiding Officer of the trial Court namely Sardar Mashkoor Ahmad Sindhu had not only violated the official notification pertaining to the appellants' trial within the premises of New Central Jail, Multan on the above mentioned dates of hearing but had also prepared false judicial record showing holding of the appellants' trial within the premises of the said jail on the above mentioned dates of hearing. Such conduct of a Presiding Officer of a trial Court cannot be accepted by us as something done in good faith. Such falsification of judicial record by none other than a Presiding Officer of a criminal Court shakes the confidence of the litigants in the fairness of the judicial process and goes a long way in bringing bad name to the judiciary as a whole. The Registrar of this Court is, therefore, directed to bring this aspect of the matter to the notice of the Honourable Chief Justice for taking or initiating an appropriate action against the above-mentioned Presiding Officer of the trial Court, if so advised.