Muhammad Ashraf Bhatti, J.--The above cited criminal appeal and the murder reference have arisen out of a judgment handed down by the learned Additional Sessions Judge, Khanpur on 29.4.2004 whereby Muhammad Siddique, appellant was convicted and sentenced to death under Section 302(b) PPC. He was also held liable to pay Rs, 2,00,000/- as compensation in terms of Section 544-A, Cr.P.C. to the legal heirs of the deceased, also recoverable as arrears of land revenue and in default of payment thereof to further undergo six month's S.I., which we intend to dispose of through this common judgment.
2. Occurrence in this case took place on 23.2.2003 at about 2.00 a.m. in the house of Allah Wasaya, brother of the complainant Mst. Ghulaman Mai situated at Chak No, 126/I.L falling within the area of Police Station Islamgarh, District Rahim Yar Khan for committing Qatl-i-Amd of Ghulam Hussain, reported by Mst. Ghulaman Mai, complainant mother of the deceased vide FIR No, 17 dated 23.2.2003 under Sections 302 PPC.
3. Abdul Razzaq Shakir, S.I PW-7 was the I.O. of this case who after usual investigation submitted challan in the Court concerned finding the appellant involved in the said murder where he was charge sheeted on 2.9.2003 but pleaded not guilty and claimed trial.
4. At the trial the prosecution produced as many as 9 witnesses in order to bring home the charge against the appellant. Dr. Rashid Iqbal (PW-6) furnished the medical evidence whereas ocular account was provided by PW-1 Mst. Ghulaman, complainant and PW-2 Abdul Salam who was `Mamoo' of the deceased. They also identified the dead body. The remaining witnesses being formal in nature need not be mentioned.
5. The learned trial Court after hearing the arguments of the learned counsel for the parties recorded the conviction and awarded sentence to the appellant, as mentioned in the opening paragraph of this judgment. Hence, the aforesaid matters for disposal.
6. At the very outset of the arguments our attention has been drawn to the material discrepancies committed by the learned trial Court, which go to the very roots of this case. Firstly, an incomplete challan was submitted by the I.O./PW-7 on the basis of which the learned trial Court initiated proceedings without awaiting the complete challan nor any direction was apparently given on its part to get the same completed and submitted by the concerned I.O.
7. Leaving the above aspect of the case aside, it is also noticeable that the learned trial Court did not provide copies of the documents to the appellant, as required under Section 265-C Cr.P.C. before framing the charge against him. This omission is manifest from the availability of copies of statements of Abdul Sattar and Muhammad Rehan constables, recorded u/S. 161, Cr.P.C. on the judicial record, which were required to be handed over to the accused/appellant at the trial. These officials were cited as witnesses in the complete challan submitted during, the trial on 30.12.2003 and examined as (PW-9) and (PW-8), respectively. The introduction of these two witnesses after framing of the charge and during the course of trial has in itself prejudiced the rights of the accused/appellant. We have also seen the confrontation vide Ex.D-1 highlighted on the part of the accused/appellant during the trial regarding statement of Abdul Salain (PW-2) u/S. 161, Cr.P.C. but to this effect there is no corresponding order available on judicial record that such a copy was given to the accused/appellant before the framing of the charge. We understand that the same might have been furnished to the accused on his asking at the cross-examination of this witness.
Indeed, we have been unable to trace any interim order passed by the learned trial Court whereby all the documents, as mentioned u/S. 265-C, Cr.P.C. were supplied to the accused/appellant before framing of the charge on 2.9.2003.
8. When confronted with the above position of the case the learned Deputy Prosecutor General has been unable to controvert the legal position that it is a mandatory requirement, which was not got fulfilled by the learned trial Court before framing the charge against the appellant. Indeed, the rationale behind the provision of the copies of documents in terms of Section 265-C, Cr.P.C. is to inform the accused of the allegation/charges levelled against him so that he may be in a position to give answers to the questions that may be put to him during the course of framing of charge without which the very framing of charge becomes irrelevant. Further, the supply of the requisite material enables him to properly defend himself against the accusations made. Therefore, non- compliance of this provision of law may surely jeopardize his rights to have a fair and impartial trial. For facility of reference Section 265-C, Cr.P.C. is reproduced below: "265-C. Supply of statements and documents to the accused: (1) In all cases instituted upon police report, copies of the following documents shah be supplied free of cost to the accused not later than seven days before the commencement of the trial:--
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recorded under Section 161 or Section 164, Cr.P.C., and
(d) the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any: Provided that, if any part of a statement recorded under Section 161 or Section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.
(2) In all cases instituted upon a complaint in writing:
(a) the complaint shall;
(i) state in petition of complaint the substance of the accusation, the names of his witnesses and the gist evidence which he is likely to adduce at the trial, and
(ii) within three days of the orders of the Court under Section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused; and
(b) copies of the complaint and any other documents which the complainant has filed therewith and the statements under Section 200 or Section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial."
9. Bare reading of the above Section 265-C of Cr.P.C. reveals that it is the statutory right of accused to have copies of all the documents mentioned therein prior to the commencement of the trial and framing of the charge. The position would not change even if it is a complaint case. Then, of course, requirements as set out in sub-section (2) thereof are to be met with in the first instance before embarking upon framing of charge. The omission to supply such documents, therefore, as per provisions of Section 265-C Cr.P.C., mandatory in nature, vitiates the whole trial as held in Nadeem Ahmed Khan and others Vs. The State (2007 P.Cr.L J. 233). Similar view was taken by this Court in case Muhammad Akram and another Vs. State (PLJ 1999 Cr.C. (Lahore) 775). In a similar situation the case was remanded for re-trial treating the provision contained in Section 265-C, Cr.P.C. mandatory and non compliance thereof vitiating the whole trial. Reference is made to Mst. Nusrat Mai and another Vs. State (PLJ 1997 FSC 61)
10.It may be observed that all the witnesses are not necessarily required to be cited in the Schedule of Witnesses nor the prosecution is be bound to produce all the witnesses, if cited therein; but copies of statements of such witnesses recorded under Section 161, Cr.P.C. have to be provided to the accused within 7-days before the initiation of trial, which of course, commences once the charge in the first instance is framed and prosecution evidence requisitioned. Reference may be made to Haq Nawaz and 3 others Vs. The State (PLJ 1989 Cr.C. (Lahore) 56).
11. Therefore, in the light of what has been discussed above, we find that the conviction and sentence recorded on the part of the learned trial Court vide impugned judgment dated 29.4.2004 is not sustainable legally, the same, while accepting the above cited criminal appeal, is set aside and the case is remanded back to the learned trial Court for trial afresh.
12. Consequently Murder Reference No, 32 of 2004 is answered in the NEGATIVE and the death sentences awarded to Muhammad Siddique, appellant is NOT CONFIRMED.
13. Let the record of the case be transmitted to the learned Sessions Judge, R.Y. Khan who shall decide the case himself or make it over to a Court of competent jurisdiction for trial within a period of four months positively from the date of entrustment. Parties are directed to appear before the learned Sessions Judge, R.Y. Khan on 22.11.2008.