RAUF AHMED SHEIKH, J.---The appellant has assailed the judgment dated 24-12-2008 passed by the learned Additional Sessions Judge, Gujjar Khan in case. F.I.R. No,51 dated 2-4-2006 Police Station Jatli under sections 302/324, P.P.C. whereby he was convicted and sentenced as under:--
(i) Convicted under section 302(b), P.P.C. and sentenced to death and was also ordered to pay a sum of Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544(a), Cr.P.C. and in case of default to undergo S.I. for six months.
(ii) Convicted under section 324, P.P.C. and sentenced to 10 years' R.I. with fine of Rs,20,000 on two counts. In case of default to further undergo S.I. for six months:
(iii) Convicted under section 336, P.P.C. and sentenced to 10 years' R.I. and ordered to pay a sum of Rs,10,000 as Arsh and sentenced to 10 years' R.I as Tazir.
(iv)Convicted under section 337-A(i), P.P.C. and ordered to pay Rs,10,000 as Daman and sentenced two years' R I. as Tazir.
(v) Convicted under section 337-R(i), P.P.C. and ordered to pay Rs,10,000 as Daman and sentenced to one year R.I. as Tazir.
All sentences would run concurrently and the benefit under section 382-B, Cr.P.C. was extended to him.
2. The learned trial Court has also submitted the Murder Reference bearing No,40 of 2008 seeking confirmation or otherwise of the capital punishment awarded to the appellant. As both these matters are interconnected and interlinked so are being disposed of through this single judgment.
3. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PA) recorded on the statement (Exh.PFF) of Hafiz Muhammad Khan Zaman son of Muhammad Afzal caste Bhatti, aged 18 years, a student, resident of Jatli, District Rawalpindi, is that Muhammad Afzal father of the complainant was a contractor. Muhammad Afzal, his father's elder brother Abdul Aziz and one close relative Tariq Hussain son of Muhammad Akbar resident of Hassal came to Doultala. Muhammad Afzal and Abdul Aziz went inside Habib Bank Limited Doultala for opening an account for development projects, whereas the complainant and Tariq Hussain started shopping from the shop opposite to the bank. In the meanwhile Muhammad Siddique appellant/accused also entered in the bank.
After some time a noise arising from the bank was heard. The complainant and Tariq Hussain came to the gate of the bank on report of roise. Muhammad Siddique appellant/accused was altercating with Muhammad Afzal and Abdul Aziz regarding dispute over money transaction.
Muhammad Afzal and Abdul Aziz came out of the bank and were on the road. In their sight Muhammad Siddique appellant pulled out a pistol .30 bore and made repeated fires on Muhammad Afzal, which landed on his right thigh, front of forehead, and skull and the brain matter came out He fell on the ground. Then the appellant made tires, which hit Abdul Aziz on the back side of the left ear and back of neck. He also fell down. The appellant/ accused made more fires which hit Faisal Hamid son of Abdul Hamid caste Sheikh resident of Daultala on right thigh and right calf.
4. The appellant/accused was arrested on 25-4-2006. After investigation he was sent up to face the trial. He was charged under sections 302/324, P.P.C. He pleaded not guilty and claimed the trial.
5. The prosecution produced 14 witnesses. Complainant Hafiz Muhammad Khan Zaman appeared as P.W.9 and almost reiterated the contents of his statement Exh. PFF. Abdul Aziz P.W.11 stated that on 20-4-2006 he along with his brother Afzal Bhatti, Tariq Hussain and Hafiz Khan Zardan came to Daultala for opening an account in the bank. He and Muhammad Afzal entered in the bank whereas Tariq and Khan Zaman went to purchase some articles in the shop. After two minutes of their entry in the bank, the accused also entered there. Muhammad Afzal made demand of the money due from him, who exchanged hot words in retaliation, Barik Officer asked them to go out He and Muhammad Afzal came out of the bank and appellant/accused followed them. Suddenly, he pulled out a pistol and fired three shots on his brother Muhammad Afzal hitting him, on left thigh, forehead and head, who tell down. After hearing hue and cry Hafiz Khan Zarnan and Tariq attracted at the spot. The accused made .two fires on the witness, which hit him on the back side of the left ear and back of the neck. Two more shots were made which hit Faisal Hamid and the accused fled away. They were taken to RHC Daultala. He was unconscious and when he gained senses,' they were in Holy Family Hospital. Faisal Hamid P.W.12 stated that on 20-4-2006 at about 9- 00 a.m. he went to HBL Daultala for depositing the bill of electricity. He saw accused/appellant while making tiring on two persons. The, accused tired three fire shots on Muhammad Afzal deceased and two on Abdul Aziz, who fell down. He tried to run away but the accused made two fires hitting him on his left leg and near the thigh. He also fell down. Tariq Hussain P.W10 stated similar facts.
6. Dr. Muhammad Aslam P.W.6 has proved MLR Exh.PC. He stated that on 20-4-2006 at about-10 a.m. he examined Muhammad Afzal son of Muhammad Zaman, Abdul Aziz son of Muhammad Zaman and Faisal Hameed son Abdul Hameed, who were brought by Azhar Mahmood 3940/C in injured condition. He issued MLR Exh.PC, MLR PD and MLR Exh.PE. Dr. Nehmat Ullah Khan P.W.15 has stated that he conducted the autopsy of the dead body of the deceased on 20-4-2006 and found the following injuries on his person:--
(1) A fire arm wound 6x2 c.m. with irregular edges (broken edges of bone and brain matter emerging from wound) on right side just above afore head (pieces of bullet founded inside the cavity).
(2) On the right side of inguinal. ligament (between the joint of bally and upper thigh) (A bullet recovered- after dissection).
(3) Abrasion 4 iliac fossa. 1 cm on the right were pleaded
(4) Abrasion '4 x 1 cm on the right bypochondrium.
(5) A small, abrasion 5 x 5 on the right side of abdomen between the Injury .Nos.3 and 4.
He opined that, probable time between injuries and death was 2 to 3 hours and between death and postmortem was about 4 to 6 hours. According to him Injury No 1 damaged the vital organs like brain and was sufficient to cause death in ordinary course of nature. He proved postmortem report Exh.PX and pictorial diagram Exh.PX and Exh.PX/2.
7. Hafiz' Muhammad Khan Zaman P.W.9 and Tariq Hussain P.W.10 have proved the memo of recovery Exh.PR through which the Investigating Officer had secured 7 empties of .30 bore pistol.
Itrat Hussain Shah 817/HC P.W.13 stated that the accused while in police custody made disclosure and led to the recovery of pistol .30 bore P-17 along with two live bullets P-18 and P-19, which was secured by the Investigating Officer through memo. .Exh.P.W. attested by him and Naseer-ur- Rehman. Ghulam Abbas S.-I. who conducted the investigation had also proved these articles. The prosecution has also produced report of chemical examiner Exh.P-Z, report of serologist Exh.PZ/A and report of PSI., Exh.PY.
8. The accused/appellant in his statement under section, 342, Cr.P.C. denied the prosecution allegations and truthfulness of the witnesses produced by it. He contended that the false recoveries were plated against him and further stated as under:-- "I visited the HBL on the day of occurrence, where Muhammad Afzal deceased and his brother Abdul Aziz P.W. along with other relatives were present. Some altercation took between me and them. They abused me and one of them caught my testicles and damaged the same. They also snatched from me some bonds and pistol and went, outside the bank where they fired upon each other and consequently Muhammad Afzal was killed by them. I am innocent. I did not fire on anybody. I have falsely been implicated in this case. All the P.'Ws. are relatives inter se. Therefore, they all deposed against me."
He; however, opted neither to produce the defence evidence nor to appear as witness on oath under section 340(2), Cr.P.C.
9. We have heard the arguments advanced by Mr. Muhammad Asad Rajput, Advocate learned counsel for the appellant and Rana Kashif Saleem Law Officer assisted by Mr. Muhammad Aslam Qureshi, Advocate learned . counsel for the complainant.
10.The learned counsel for the appellant at the very outset has contended that the appellant was not provided the legal assistance and has thus been deprived of his right to defend himself. It is urged that the evidence was recorded in the absence of the defence counsel, who discontinued appearance and then the appellant was asked to cross-examine the witnesses but he could not achieve the objects of the same. It is urged that it was the duty of the court to provide him a counsel at State expenses, who was really interested in defending him and his engagement should not have been made just to fulfil the formality. In support of the contention reliance is placed on 2011 SCM R 23.
11. Controverting these arguments, the learned counsel for the complainant and Law Officer have contended that the appellant did not produce the counsel engaged by him so Raja Omar. Farooq, Advocate was appointed as defence counsel at. State expense but the appellant did not repose confidence in him and refused to have the service of any counsel at State expenses and opted to cross-examine the witnesses so the Court was left with no option but to proceed with the case and decide it in accordance with law. It is urged that it is a promptly lodged F.I.R. and there was no chance of misidentification or substitution. It is urged that both P.W.11 and P. W.12 were injured during the occurrence and presence of P.W.11 and P.W.12 is fully established through their evidence has to be relied upon as there was no motive for them to depose falsely. It is urged that strong and trustworthy ocular account is fully corroborated by the recovery of weapon of offence and positive report of FSL, which is sufficient to prove the guilt of the appellant beyond reasonable doubt and as such the judgment of the learned trial. Court does not call for any interference. It is also urged that the appellant himself had admitted the presence of the witnesses at the place of occurrence and his own presence while armed with pistol and has put up an un-plausible version.
12. The perusal of record reveals that after framing of the charge two adjournments were granted due to non-availability of the learned counsel for the appellant. The evidence of P. Ws. was recorded on 14-9-2006 in the absence of the learned counsel for the appellant. The learned trial Court also recorded examination-in-chief of P.W.3, P.W.4 and P.W.6 in the absence of the learned counsel for the appellant. Sortie adjournments took place due to transfer of the learned Presiding Officer and due to non-service of the process. Some adjournments took place as the accused was not produced from the Jail. On 9-4-2008, 10-5-2008, 9-7-2008, 12-8-2008, 28-8-2008, 17-10-2008, 29-10-2008, 10-11-2008, 14-11-2008 and 17-11-2008 the adjournments were granted due to non- availability of the learned counsel for complainant for different reasons. Thereafter on 18-11-2008 the appellant himself opted to cross-examine the witnesses and stated that he had no confidence on the counsel provided at State expense or any other counsel. The numerous adjournments granted by the Court due to non-availability of the learned counsel for the complainant warranted an adjournment to enable the appellant to engage counsel of his choice or some other counsel in whom he had reposed confidence should have been engaged at' State expenses, who could have conducted the case on his behalf by inspiring and maintaining the confidence between the counsel and the client.
13. The above resume of the order sheet would reveal that most of the adjournments took place due to non-availability of the learned counsel for the accused or non-service of the process. In these circumstance's the learned trial Court could not have justifiably asked or allowed the appellant to cross-examine the witnesses in murder case in which the capital punishment may be awarded. The cross-examination is an important source to unearth the truth. The art of cross- examination is learnt on completion of education in the field of law and expertise in this regard is attained with hard work and experience. An ordinary man cannot be expected to effectively cross- examine the witnesses in order to bring the truth on the file. Many witnesses were left uncross- examined in addition to the cross-examination put by the appellant himself on some of them. In these circumstances, we are of the considered view that the appellant was not provided fair chance to defend himself and in such circumstances, the apprehension of miscarriage of justice always exists.
For the reasons supra, we are of the considered opinion that the conviction recorded and sentence awarded to the appellant are not sustainable. The appeal preferred by the appellant against impugned judgment is accepted. His conviction and sentence are hereby set aside. The case is remanded to the learned trial Court with a direction to give an opportunity to the appellant to engage counsel of his choice and if he is unable to do so, a counsel at State expenses from the panel of three local advocates be appointed after obtaining his preference. Thereafter the P.Ws. be re-summoned and the learned counsel so appointed be given fair chance to cross examine them. The ease be decided afresh within two months from the receipt of this order. The Murder Reference is answered in the negative.