ABDUL QADEER CHAUDHRY, J.--The appellants have been convicted under section 302/34, P.P.C. By Sessions Judge, Karachi East by Judgment dated 27-11-1985 and have been sentenced to suffer imprisonment for life and to pay fine of Rs.2,000 each in default of payment of fine to further suffer R.I. For .Six months. Rs.5,000 was awarded as compensation against each of the appellants to be paid to the heirs of the deceased and in default of payment of compensation six months' more R.I.
2. The facts in brief are that the appellants were tried under section 302/34, P.P.C. On the allegation that in furtherance of their common intention Abdul Hassan fired at the deceased as a result of which he died subsequently in the hospital. The report was lodged by the deceased Liaquat Ali himself wherein he has stated that he was working as dispenser. Noor Hasan alias Hanan and Muhammad Hasan alias Koka were living in the same street in which complainant Liaquat Ali was living. His cousin Shamsher Ali and younger brother of the appellants had quarrel on the morning of the previous day. The complainant had also quarrelled with them in lqbal Park and on account of this there was some ill-will between the parties. On 2-7-1983 at about 2.00 p.m. The complainant was returning from his work to his house when he reached near corner of the street, both the brothers (appellants) were standing. Noor Hassan alias Hanan fired three revolver shots at him and one of which hit him on his forehead and two fires missed. In the meantime, Shamsher Ali and Zafar Ali also reached there. He then lodged the First Information Report Exh.17. After usual investigation the appellants were sent to stand trial on the said charge.
3. It is not necessary to refer to the entire evidence recorded against the appellants in this case.
However, the case against the appellants rests on the ocular evidence of P.Ws. Abdullah, Zafar Ali and Shamsher Ali, dying declaration of the deceased corroborated by P.W. Shaukat Ali, medical evidence of Dr. Zulfiqar Ali, motive as stated in the first information report--supported by the witnesses and absconsion of accused Abdul Hassan. The learned trial Judge considered all the pieces of evidence against the appellant.
4. We have heard learned counsel for the appellant, State and the complainant. We have also read the record with the assistance of the learned counsel. In this case investigation was conducted by A.S.I. Ghulam Hyder P.W.7, who recorded the F.I.R. Which he produced as Exh.17. He has admitted in his deposition that he recorded further statements of deceased Liaquat Ali P.Ws. Shaukat Ali, Abdullah, Shamsherali and Zafarali. He has produced the photostat copies of statements recorded under section 161 of the deceased and the prosecution witnesses as Exhs.18 to 22 and according to him they are in his handwriting. These copies have been produced by the witness while he was under cross-examination. In this statement he has stated that he does not know where are the originals of these exhibits 18 to 22 but he remembered that he had produced the police papers in the Court of learned IIIrd Additional Sessions Judge in bail application from where Mr. Gul Zaman Advocate had taken out the same and got the photostat copies of the same and then did not return the originals to him. The A.P.P. Did not arise any objection when these photostat copies were produced. However, subsequently when reference was made to the statement of the deceased Exh.17 by P.W. Ghulam Hyder the A.P.P. Objected to these questions as the statements are not in his file and the same are photostat copies and the same have not been supplied by the prosecution to the accused. The Court however, allowed the questions on these exhibits on the ground that the witness had admitted that the same are in his handwriting and are recorded by him and, therefore, the objection was overruled and in the interest of justice the defence counsel was allowed to put the questions. In Exhs.18 to 22 some new facts have been included which were contrary to the facts mentioned in Exh.17, the first statement of the deceased and the statements of the witnesses recorded initially under section 161, Cr.P.C.
An application under section 265-F, read with section 540, Cr.P.C., was moved by the Assistant Public Prosecutor wherein it is stated that A.S.I. Ghulam Hyder who partly investigated the case is mixed up with the accused party and hp had deliberately prepared certain false and incorrect statements alleged to have been given by certain witnesses with a view to help the accused and to damage the prosecution case which statements are Exhs.18 to 22. He therefore, requested that Mr. Muhammad Hayat Junejo and Mr. Gul Zaman Khan Advocates may be examined as witnesses.
This prayer of the A.P.P. Was rejected by the Court on 14-2-1985. The Advocate for the accused moved an application under section 540, Cr.P.C., on 16-6-1985 for recalling P.W.7 for further cross- examination of P.W.7 but the said application was withdrawn by the defence. The counsel for the complainant moved en application on 27-6-1985 with a prayer that the accused had not produced the originals of the Exh.18 to 22 nor have disclosed as to where are the originals of the same. The accused are mixed up with P.W. 7 A.S.I. Ghulam Hyder and they have forged the statements with a view to damage the prosecution case. A prayer has been made in this application that the accused be directed through defence counsel to produce the originals of the photostat copies of the alleged statements. The learned Additional Sessions Judge dismissed this application on the ground that the case is fixed for final arguments but the final arguments could not be heard due to the interlocutory applications moved by the parties counsel. Advocate for the accused has clearly stated that he cannot produce the original of the photostat copies of the statements filed by the accused alongwith this statement, therefore, at the most these photostat copies of the statements can be discarded at the time of. Judgment after hearing final arguments.
In fact when these Exhs. Were produced by the defence the court should have considered the objection of the A.P.P. But the trial court allowed the photostat copies of the documents to be placed on record without, first ascertaining whether the originals are available or not. If the primary evidence is available then the secondary evidence could not be, produced. The A.S.I. Has been cross-examined by the defence on, these documents and alleged contradiction has been brought on record. While addressing the arguments in appeal the learned counsel for the appellant has referred to the admission made by P.W.7 in cross examination. We are of the view that it has not been established either by the defence or by the prosecution that the statements. Exh.18 to 22 have been recorded during the investigation. The witnesses have denied their statements but A.S.I. Has alleged that he has recorded such statements.
We, therefore, direct the trial Court to re-examine P.W.7 Ghulam Hyder and P.W.10 Sultan Mulk who was the S.H.O. At the relevant time and partly investigated the matter. The Court may also examine any other witness for coming to a definite conclusion whether further statements of the deceased and witness (Exh.18 to 22) were really recorded during investigation. Exh.18 to 22 should be considered in the light of such evidence.
We have also noticed that an application was moved by the A.P.P. On 6-11-1984 for the examination of Doctor Bashir who had examined the deceased on 2-7-1983. On this application an order was passed that issue S.S. To Doctor and all other remaining P. Ws. But the doctor has not been examined. Examination of the doctor who has examined the deceased on 2-7-1983 is necessary to ascertain what was the condition of the injured at the time as the deceased had died on 11-7-1983 that is after nine days of the incident. The examination of Dr. Bashir would also be relevant in order to ascertain if the injured was properly treated.
After taking the further evidence, the appellants be examined on any further incriminating evidence recorded against them and they be given opportunity to lead evidence, if any. The trial Court should consider the evidence already recorded and the fresh evidence recorded after the remand and decide the matter afresh.
The appeal is, therefore, accepted. The judgment, dated 27-11-1985 is set aside and the case is remanded for retrial and decision in the terms stated above.