MALIK HAQ NAWAZ, J.---The case in hand has a chequered history. The facts and legal implications involved and created in the case has made it more and more mysterious and tricky.
During arguments, the learned counsel for the petitioner stated at bar that Cr. Misc. No,142/2017 by co-accused Ghulam Hussan has also been filed, since the matter was arising out of one and same FIR and similar question of law and facts were involved, therefore, office was directed to submit the file of above case. Criminal Misc. No, 140/2017 filed by petitioner Akhtar Hussain and 142/2017 filed by petitioner Ghulam Hussain are being disposed of together.
2. As alleged in FIR the petitioner and co-accused attacked Ghulam Haider (deceased) with stones in presence of his minor sons namely Mohammad Ibrahim. As reflected in the prosecution story, the then injured Ghulam Haider sent his minor son Mohammad Ibrahim to his native village to inform his mother/relatives. On receipt of information the people from the village reached there and removed the injured to his village, where he died after two hours. The FIR lodger further disclosed that deceased himself named both the petitioners for the criminal assault, which later on resulted into his death.
3. Challan of the case was submitted before the trial Court and the trial Court after full-fledged trial convicted both the petitioners/accused. Accused Ghulam Hussain was awarded death sentence, while accused Akhter Hussain was awarded life imprisonment.
4. The convict/appellant filed Criminal Appeal No, 15/2009 against the above judgment/order of trial Court dated 11-08-2009. The Chief Court vide judgment dated 28-11-2011 accepted the appeal on the ground that the petitioner Akhtar Hussain was minor and his joint trial with co-accused Ghulam Hussain was illegal and unwarranted as under Juvenile Justice System Ordinance 2000, the accused was to be tried by a Juvenile Court established under the Ordinance. The appeal was allowed and the conviction so awarded to both the accused was set aside. In the same judgment Chief Court suspended sentence of the appellants under section 426, Cr.P.C.
5. It is pertinent to mention here that the State being aggrieved from the judgment/order of Chief Court filed an appeal before Hon'ble Supreme Appellate Court Gilgit and the Hon'ble Supreme Appellate Court upheld the judgment of Chief Court dated 28-11-2011 (wrongly mentioned as 11-08- 2009 in the order sheet of trial Court dated 10-12-2016). On 22-12-2016 the learned trial Court directed Special Public Prosecutor to file separate challan up to the extent of petitioner Akhtar Hussain which directions were again repeated on 28-02-2017, 14-03-2017. On 04-04-2017 the learned trial Court attached the salary of incharge SHO Kharmang and SP Kharmang was also directed to comply the orders of the Court and after using coercive measures the challan was filed against accused Akhtar Hussain on 14-04-2017. The case was fixed for framing of charge on 19-04- 2017, which was framed on 28-04-2017 and the case was fixed for prosecution evidence. The controversy which adulterated the proceedings started from this unfortunate stage of the case, when the DPP made a statement, that he does not want to re-examine the PWs and stated that he will rely on the statements of PWs already recorded. The case was fixed for recording of statement of accused under section 342, Cr.P.C. Accused filed an application for re-examination of PWs but the learned trial judge turned down the application vide order dated 20-06-2013. The petitioner filed a revision petition in Chief Court which was disposed of by the Chief Court but copy of the same has not been placed on record.
6. The petitioners Akhtar Hussain and Ghulam Hussain moved petitions under section 265-K, Cr.P.C., before trial Court for acquittal from the charge mainly on the ground that after direction of de- novo trial by the Chief Court the learned DPP abandoned his right to re-examine the PWs and the case was fixed for recording statements of accused under section 342, Cr.P.C. Further that no conviction could be based on the previously recorded statements of PWs and it has become a case of "No evidence".
7. The learned trial Court did not agree with the submission of learned defence counsel and turned down the petition vide order dated 04-08-2017.
8. The learned counsel for the petitioner has filed two separate petitions under section 439, Cr.P.C. read with section 561-A, Cr.P.C. for setting aside the order/judgment of the trial Court and acquittal of the petitioners from the charges. The learned counsel raised multiple grounds in the petitions but the main focus of the arguments of the learned counsel was that when the DPP has abandoned right of reexamination of PWs, and the case was fixed for recording of statement of accused under section 342, Cr.P.C., the summoning of PW again by the trial Court is illegal and unwarranted and the acquittal should be the ultimate result.
9. Chapter XXII-A contains the procedure/mechanism of the trials to be conducted before High Court and Courts of Session. Sections 265 to 265-H, Cr.P.C., provides a detailed and comprehensive procedure for a fair trial. Charge is framed under section 265-D and if an accused plead guilty, the Court will not straight way convict him, but will serve him with a show cause and then will record his plea, but at the same time if the charge of one of the capital punishment, the trial Court will summon the PWs and conduct a full-fledge trial and will decide the case according its own merits.
10. In the instant case when the de-novo trial was ordered by this Court vide judgment dated 28- 11-2011 and the same judgment was upheld by the Hon'ble apex Court, the statement of learned DPP before the trial Court made on 20-06-2013, that he does not want to produce PWs and rely on the statements of PWs already recorded, such a statement by the DPP regarding relying on the previous statements was a criminal negligence and is highly depreciated which created ugly situation for both the parties. When whole the proceedings were set aside, then how the statements of the pws could be relied or transferred in the case of de-novo trial. The learned trial Court as evident from the order dated 20-06-2013 went one step ahead and endorsed the illegal request of DPP and turned down the application of accused for re-summoning the PWs. Conduct of the learned trial Court is also against the one expected from head of a District Judiciary. The judges are not bound to act like an "obedient servant" of District Public Prosecutor and if a DPP raises/concedes a proposition, which does not have the sanction of law, the same should be thrown out and the judges should decide the cases on their own merits.
11.After order of de-novo trial the separate challan under Juvenile Justice System 2000 was submitted before the trial Court. The trial Court was bound to frame the charge afresh, which was framed, but the miseries of appellant/accused started, when as discussed above an illegal/unwarranted statements was made by DPP, without having knowledge of the facts and law that the evidence which has been recorded in the case earlier has been declared illegal because of joint trial of both the accused, when one of them was minor the transfer of the evidence was neither permissible nor allowed under law. Even otherwise if a statement is transferred, the opportunity of cross-examination has to be provided to the defence to cross-examination the prosecution witnesses.
12.The plea of the learned counsel for the petitioners that after statements of DPP that he does not want to adduce fresh evidence, the chapter of evidence has finally been closed, is not tenable.
It may be mentioned here that learned counsel filed an application on 22-05-2013 before the trial Court for re-summoning of the PWs, which was turned down on 20-06-2013 and the learned counsel filed a Revision Petition No, 12/2013 before this Court for setting aside the order/judgment of learned trial Court and with the prayer, that the PWs be summoned for cross-examination.
13.The 1st charge of petitioner/accused Akhtar Hussain, after remanding of the case from Chief Court was framed on 12-06-2012 and the record reveals that on 28-04-2017 another charge was framed, which is illegal. It is evident from record that fresh charge of accused Akhtar Hussain was framed when his separate challan was not before the court and separate challan of the accused as a juvenile offender was filed on 14-04-2017 and charge was framed on 28-04-2017. The charge framed on 12-06-2012 before separation of challan was illegal and without lawful authority. The proceeding will continue on the charge framed on 28-04-2017. The contention raised at bar in Cr.
Misc. No, 142/2017 (Ghulam Hussain v. The State) also carries weight. When the appeal bearing No,15/2009 was allowed by this Court, and conviction/sentence were set aside and it was ordered that separate challan of accused Akhtar Hussain be submitted before juvenile Court then it is beyond understanding that how the statements of PWs recorded in the proceedings of joint trial could be relied and transferred. Article 47 (old Article 33) deals with the transfer of the statements, which is reproduced as under:- Article 47 of Qanun-e-Shahadat.
47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considered unreasonable; Provided that; The proceeding was between the same parties or their representatives-in-interest; The adverse party in the first proceeding had the right and opportunity to cross-examine; The question in issue were substantially the same in the first as in the second proceeding."
It is brought to my notice that the case of petitioner Ghulam Hussain (in Cr. Misc.-142/17) is at the stage of recording of statements of accused under section 342, Cr.P.C., as the statements recorded in joint trial have been transferred and relied which is against the mandate of Article 47 of Qanun- e-Shahadat, 1984. The wisdom could be drawn from 1972 PCr.LJ 734, where it has been held:- "Evidence Act (I of 1872), S. 33---Evidence---De novo trial---Evidence recorded in previous trial-- -Cannot be read as evidence in any subsequent proceedings--- Such evidence relevant only if witness not to be found for reasons mentioned in ' S. 33---Court erroneously placing reliance upon evidence recorded during previous trial--On proceedings of de novo trial, held, vitiated."
Another judgment reported in PLD 1997 Karachi 146 is also relevant, which is re-produced as under:-
(a) Qanun-e-Shahadat (10 of 1984)- ----Art. 47---Relevance of evidence given in an earlier proceeding to prove a fact in subsequent proceedings---Conditions precedent for admission of a previous deposition for consideration, enumerated.---1 Evidencel. Article 47 of the Qanun-e-Shahadat, 1984 prescribes the conditions under which secondary evidence of testimony of a witness in the former proceeding, civil or criminal, is admissible in subsequent proceeding or in a later stage of the same proceeding where the question in controversy in both proceedings is identical and where the witness is dead or cannot be found or is incapable of giving evidence. Before such evidence could be made admissible, the following conditions are necessary to be complied with; (i)That the earlier evidence was taken in judicial proceedings.
(ii)That the first proceeding was between the same parties.
(iii)That the parity against whom deposition is tendered had, a right and full opportunity of cross- examining the deponent when the deposition was taken.
(iv)That the issues involved are the same or substantially the same in both proceedings.
(v)That the witness is incapable of being called at the subsequent proceeding on account of death, or incapability of giving evidence or being kept out of way by the other side or an unreasonable amount of delay or expenses.
In view of above, old statements transferred in the -case of accused/petitioner Ghulam Hussain are also declared illegal and unwarranted though the proceedings were between same parties but those proceedings were not approved by this Court. The trial Court will examine all the PWs afresh in both the cases. Fair trial is right of an accused. The interest of complainant/accused are to be safe guarded by the Court by keeping the scale of justice even and to provide level playing field to both the parties. Chief Court is competent to mould a relief even if the same has been claimed or not by exercising inherent D power under section 561, Cr.P.C. provided the jurisdiction of the Court remains intact. Despite of the facts that both the petitions were meritless up to the extent of prayer for acquittal, the inherent defect in the proceedings have been rectified up to the possible extent.
14.The order of the learned trial Court dated 04.08-2017, which has been assailed before this Court has been examined and no infirmity has been found, which is upheld. The case is one of the oldest one and the learned trial Court is directed to take up proceedings of the ease on day to day basis and decide the same within a period of two (02) months positively. Compliance report shall be submitted to the Registrar of this Court for my perusal in Chamber.
15. Needless to mention that the cases should always be decided on merits and not on the basis of some technicalities. No party should suffer because of an act of the Court. The instant revision petitions under section 439, Cr.P.C. read with section 561-A, Cr.P.C., are disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.