SABIT ULLAH KHAN, J:- This criminal appeal filed u/s 410 of the Code of Criminal Procedure, 1898 (Cr.P.C) is directed against the judgment of the learned Additional Sessions Judge, Upper Dir at Wari dated 20.03.2024 rendered in case bearing FIR No.318 dated 18.08.2021 registered under sections 302, 109, 127 PPC at Police Station Wari, District Dir Upper, whereby the appellant namely Muhammad Hayat was convicted and sentenced u/s: 1) 302 (b) PPC to undergo imprisonment for life, with directions to pay Rs.10,00,000/- as compensation to the legal heirs of deceased, which shall be recoverable u/s 544-A Cr.P.C or in default, to undergo 06 months SI 2) 427 PPC to undergo two years S.I with a fine of Rs.40,000/- or in default to undergo further 02 months S.I.
3) The benefit of section 382-B Cr.P.C was extended to the appellant/ convict.
2. Brief facts as glean out from murasila (Ex.PW1/1) are that on 18.08.2021 at 20:00 hours, the complainant namely Sajjad (PW-1) reported the matter to the local police that on the eventful day at 18:00 hours, he along with his deceased brother namely Noor Muhammad and other co-villagers namely Qaisar Hayat (PW-2), Samiullah (PW-), after offering ' Asar ' prayers, were present near the shop of co-accused namely Nabi Khan while his deceased brother proceeded to start his motorcar (Ghawagai) and seated on the driving seat, at that moment, the appellant/ accused namely Muhammad Hayat suddenly emerged from the shop of co-accused Nabi Khan duly armed with a Kalashnikov and opened firing at his brother, due to which, he sustained injuries on the back of his right shoulder and on the way to the hospital succumbed to the injuries. Previous blood feud was cited as motive behind the occurrence. It was further stated that the occurrence besides the complainant was also witnessed by PWs Qaisar Hayat and Samiullah. On the strength of the murasila, the instant FIR was registered against the present appellant and his co-accused Nabi Khan and Razi Khan.
3. On arrest of all the accused three accused persons including the present appellant and completion of the investigation, their case in shape of challan was put in Court for trial. To the charge, they pleaded not guilty and claimed a fair trial. The prosecution examined as many as 14 witnessed, followed by the statements of the accused recorded u/s 342 Cr.P.C wherein they neither wished to be examined on oath nor desired to produce evidence in defence. After hearing the arguments, the learned trial Court acquitted the co-accused namely Nabi Khan and Razi Khan while convicted and sentenced the present appellant namely Muhammad Hayat as per the details, mentioned in the first para of this judgment vide its impugned judgment dated 20.03.2024, hence, this appeal.
4. Arguments heard and record perused.
5. During the course of arguments, learned counsel for the appellant-accused invited our attention to the fact that during trial though the prosecution produced the eyewitnesses i.e., the complainant Sajjad as PW-1, Qaiser Hayat as PW-2 and Sami Ullah as PW-3 before the learned trial Court but out of them, only the former two were cross-examined whereas, the latter namely Sami Ullah (PW-3), after recording of his examination-in-chief, was not cross-examined by the defence rather he was abandoned by the prosecution without any plausible reason. The learned counsel for the appellant contended that the main reason behind the non-production of the said witness (PW-3) for his cross-examination was probably that in fact he was not an eyewitness of the occurrence irrespective of mentioning his name as such in the initial report and thus in case of his cross- examination by the defence, the truth would have come to surface. When the learned counsel for the complainant-side and the learned A.A.G representing the State were confronted with this fact regarding the abandonment of this star prosecution witness and that too after recording his examination-in-chief, they stated at the bar that the witness was ill and could not attend the Court, however, there is no reliable material in shape of medical document on record to support such an assertion of the prosecution, which could amount to exceptional circumstances. It was also admitted by the learned counsel for the complainant-side at the bar that the said Sami Ullah (PW- 3) is alive and available in the country. It may be highlighted here that had the witness been declared as hostile after his examination-in-chief or any plausible reason for his abandonment been offered then the situation would have been different but in the current situation, non- production of this witness in spite of recording of his examination-in-chief raises many questions in prudent mind. Legally, for many factors, this witness, who has already entered the witness box and recorded his examination-in-chief asserting therein certain facts posing himself to be the eyewitness of the occurrence, cannot be treated as a mere formal witness or a matter of prosecution's choice to abandon him without brining on record any valid justification particularly when he is admittedly alive. In this case, the other two eyewitnesses have already been examined and cross-examined but in the attending circumstances of the case, the cross-examination of PW3 was playing a decisive role. It may be observed here that when a witness once stepped into the witness-box and also recorded examination-in-chief then the prosecution cannot subsequently abandon that witness merely on the ground that other witnesses have already been examined. Once a witness enters the dock and gives a statement on material facts then in such an eventuality, the Court has a duty to regulate the proceedings and ensure that such a witness is cross-examined in accordance with law by the defence and if there is no compelling circumstances, the examination in chief and cross-examination of the same witness is required to be recorded on the same date. The Court cannot act as a passive bystander but it must actively steer and control the trial process to maintain fairness and balance between the parties for administering the justice. It was the responsibility of the learned trial Judge to have ensured uniformity and consistency in the examination process of the witnesses and to prevent the prosecution or any party including the defence from manipulating the legal proceedings only for the sake of their convenience. It may be said that if a prosecution witness is not cross-examined due to the prosecution's unilateral decision to abandon him and the Court fails to act as per law, it amounts to a miscarriage of justice. In this case in view of the factual aspect that "cross examination reversed", the prosecution cannot take the pela that the defence has waived off its right to cross-examine the witness. It is also a settled criminal jurisprudence that the exercise of cross-examination is not just a formality but it is a vested valuable right of the accused as provided by section 133 of the Qanun-e-Shahadat Order, 1982. The relevant portion of the said provision of law is reproduced below: "133. Order of examination. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined.
(2) ......................."
The plain reading of this provision of law would clearly indicate that the statement and testimony of the witness cannot be considered as admissible in evidence unless such a witness is subjected to cross-examination by the defence. In other words, it may be stated that the cross-examination of a witness is the fundamental and statutory right of the accused and the same cannot be taken away from him, save in accordance with law, which is not the position in the case in hand. It is also a settled principle of law that when a thing is required to be done in a particular manner that must be done in that manner and not otherwise.
6. In quite similar controversy emerged before this Court, in the case of "Akhtar Ali and 02 others Vs. Amir Hatam and another" (2021 PCr.LJ 1439), where a star prosecution witness even after recording of his examination in chief was abandoned by the prosecution and the accused persons were awarded imprisonment for life, has allowed the appeal of the convicts, the judgment of the trial Court was set aside by remanding the case with directions to the learned trial Court to re- summon that relevant PW namely Momin Khan for recording his cross-examination and thereafter shall decide the case in accordance with law. For ready reference, the relevant portion of the said judgment of this Court, is reproduced as under: "Record depicted that examination-in-chief of a witness was recorded on 14.06.2017 but he was abandoned by ADPP and counsel for the complainant on 25.04.2018 on the ground that other eye witnesses had already been examined. Even his statement was relied upon by Trial Court at the time of passing the impugned judgment. High Court observed that view of the Trial Court that mere production of a witness and recording his examination-in-chief would not take away from prosecution the right to abandon a witness save in exceptional cases, were misconceived. No doubt, prosecution or a party to a /is was at liberty to abandon a witness but once a witness came into the dock and he opened his mouth with regard to facts of the case then in that eventuality he could not be abandoned by prosecution rather it was the duty of the court to take the proceedings into its own hands. Court had prime duty to steer, control and regulate the course of examination of a witness on proper lines and to strike a fair balance between the parties before it for bringing uniformity and consistency in process of examination. Courts were also required to act vigilantly and not to remain oblivious of their duty in controlling and regulating the process of examination of a witness. In the present case, the court had not discharged its duty and had acted as a silent spectator by allowing the prosecution to deal with the witnesses according to their own whims. Nothing was on record to show that the defence had ever given up its right of cross-examination rather the defence counsel had time and again requested the Trial Court for re-summoning of the witness for cross-examination. Appeal was allowed and the matter was remanded the Trial Court with directions to summon the witness for his cross-examination and thereafter decide the case after hearing the parties."
In the case titled "Muhammad Zaheeruddin Anwar Vs. The State" (1986 SCMR 620), the apex Court, while addressing the issue that as to whether the prosecution witness had put his appearance before the Court or not when noted that such a witness was not cross-examined by the defence, has directed the trial Court to re-summon the witness and provide an opportunity for cross-examination to the defence. For such a purpose, the matter was remanded by the apex Court to the trial Court. The relevant portion of the said judgment of the Apex Court reads as under: "In the impugned order the learned High Court Judge observed that after considering the submissions made by the learned counsel for the petitioner, he was not persuaded to agree with him as there was no affidavit of the learned counsel for the petitioner placed on the record to the effect that the petitioner had come to take him to the Court and that when they appeared before the learned Special Judge, Anti-Corruption, the evidence of Abdul Majid P.W. 1 had already been recorded in the absence of the accused. It was further observed by the learned Judge that it was within the discretion of the Court to re-summon or refuse to re-summon the witness for cross- examination, and, therefore, the order of the learned trial Court was neither perverse nor illegal."
The situation is almost the same, which was before this Court in Akhtar Ali's case (supra), therefore, the impugned judgment on the appreciation of the available evidence without affording an opportunity to the defence for cross-examining Sami Ullah (PW-3) whose examination-in-chief has already been recorded, cannot sustain rather remand of the case for his re-summoning/ re- examination is inevitable in the circumstances. At his moment, all concerned including the learned counsel for the complainant-side and the learned A.A.G expressed their consent when remained unable to wriggle out of the above legal position.
7. It is worth mentioning here that through the impugned judgment, the present appellant was convicted and sentenced whereas the co-accused namely Razi Khan and Nabi Khan were acquitted of the charge. However, neither the prosecution nor the complainant has showed dissatisfaction with the decision of the learned trial Court to the extent of the afore-said acquitted co-accused because no appeal was filed before this Court against said judgment, therefore, in such circumstances, the impugned judgment of the learned trial Court to the extent of the acquitted co-accused merits to be maintained.
8. In view of the above discussion coupled with the dicta laid down in the referred to above cases, the instant appeal stands allowed, the impugned judgment of the learned trial Court dated 20.03.2024 only to the extent of the present appellant namely Muhammad Hayat is set aside and consequently, the case to his extent is hereby remanded to the learned trial Court with directions to re-summon Sami Ullah (PW-3) for his cross-examination and thereafter decide the case in accordance with law but after hearing the parties. The appellant shall be treated as under trial prisoner. Since, the appellant/ accused was arrested in the instant case on the very date of occurrence i.e., 18.08.2021, therefore, the learned trial Court is expected to complete the required exercise and decide the case within a period of two months if not earlier.