Nausher son of Shahanrad, aged 28 years and Ahmad Ali son f Waryam aged 25 years were tried by Mr. M. Masood Ahmad nsari, P. C. S. Resident Magistrate/Magistrate Section 30, Okara, istrict, Sahiwal for offence under section 307/34, P. P. C.
Finding both of them guilty of the above-noted offence, he convicted them for the same and sentenced each one of them to 5 years' R. I. by his judgment dated 18th November 1969. He also awarded them a sentence of five lashes each under the West Pakistan Whipping Ordinance, 1963 by the same judgment.
Both of them have come up in appeal against their conviction and sentences.
2. It is not necessary to narrate the facts of the case as the appeal has been filed on legal grounds only. Mr. Saeedur Rahman Farrukh, the learned counsel for the appellants urged that on 8-4-1969 the learned trial Magistrate had recorded the evidence of three prosecution witnesses namely Makhan P. W. 1, Muhammad Khan P. W. 2 and Muhammad Ishaq P. W. 3 in the absence of the counsel who represented the appellants at the trial and no cross-examination could therefore be conducted by the appellants. The learned Magistrate, however, recorded on the file that no cross- examination was conducted in the case of P. W. I and P. W. 2, although an opportunity having been given.
3. The learned counsel submitted next that on the 18th of November 1969, the learned trial Magistrate fixed the case at Renala Khurd where he had gone on tour. Mr. Zafar Iqbal, Advocate, the appellants' counsel at the trial, was busy in some other Court at Okara, which is at a distance of 13 miles from Renala Khurd. It was the first date for recording of the defence evidence. The appellants bad taken two defence witnesses with them, namely Ahmad Yar son of Ghulain resident of Chak No. 35/4-L and Anwar Arain resident of Chak No. 21/1-L who were, throughout, present outside the Court room at the Caml Rest House. Mr. Zafar Iqbal, Advocate realising that he may not be able to reach Renala Khurd in time, had sent an application in writing, through the appellants, praying that the learned trial Magistrate may accommodate him by taking up the case after 11 a.m as he (Mr. Zafar Iqbal, Advocate) would be reaching Renala Khurd at about 11 a.m. The learned Magistrate called the case at about 10 a.m. The appellants submitted the above- mentioned application of their counsel and also prayed orally that the hearing may be postponed till the arrival of their counsel. They also informed the learned trial Magistrate that two defence witnesses, named above, were present outside the Court, who would be examined by their counsel.
The learned Magistrate however, did not accede to the request. He did not pass any order on the application and instead of waiting for the appellant's counsel he asked them to put their thumb- impressions on certain papers and ordered them to wait outside the Court room. After some time the case was called out again and the learned trial Magistrate announced the judgment, convicting both the appellants. It is contended that Mr. Zafar Iqbal, Advocate reached at 11 a.m. and requested the Court to start the proceedings in the case but was informed that the trial was over and the accused had been sentenced.
4. Mr. Saeedur Rehman Farrukh, learned counsel for the appellants at this stage submits that the above-mentioned procedure adopted by the learned trial Magistrate was unwarranted by law and vitiated the trial inasmuch as it amounted to deciding the case without giving the accused a reasonable opportunity of defending themselves.
In support of these contentions the appellants have produced an affidavit of Nazra son of Waryam, the Special Attorney of the appellants as well as an affidavit of Mr. Zafar Iqbal, Advocate. The last mentioned affidavit is not traceable on the record but it is apparent from the order of my learned brother Mr. Justice Mushtaq Hussain Munir dated 11th February 1970, whereby his Lordship suspended the sentence of the appellants, that such an affidavit had in fact been produced before him. As a matter of fact the said order is mainly based on that said affidavit of Mr. Zafar Iqbal, Advocate. Mr. Saeedur Rehman Farrukh submits that he had personally submitted the affidavit before the learned Judge on that date, but it appears that the Reader of the Court failed to attach it with the file, in time, and the same therefore, got misplaced. Mr. Saeedur Rehman Farrukh, learned counsel for the appellants undertakes to supply another affidavit from Mr. Zafar Iqbal, Advocate, to be placed on the record. In the meanwhile he has placed on record a copy of the previous affidavit, which supports the submissions made by Mr. Saeedur Rehman Farrukh reproduced in paragraph 3 above.
5. I am not impressed by the first contention namely that the learned trial Magistrate proceeded lo examine three P. Ws. in the absence of the appellants' counsel, for the Court is not bound to wait for a counsel indefinitely and is not required to take up the case at his convenience. The second contention however, stands on a difi'erent footing. I have examined the order-sheet with regard to the proceedings of 18th of November 1969. It is ecordcd that 'Nausher accused has not produced the defence evidence and has closed his case', but in view of the affidavit of Mr. Zafar Iqbal, Advocate, 1 have no reason to disbelieve the assertion that two defence, witnesses namely Ahmad Yar and Anwar Arain had, in fact, been taken by the accused/appellants :o Renala Khurd and had been waiting outside the Court, to be xamined. Even though the learned trial Magistrate was not jound in law to wait for the counsel of the accused (appellants), ae might have given the two appellants the opportunity to examine he defence witnesses who were present outside, and had come ill the way to depose in the Court. The learned Magistrate '.ould have called thcrii inside and recorded their statements ersonally, if the accused-appellants were unable to do so.
6. I am of the view that the grievance of the appellants is enuine and the failure of the learned trial Magistrate to examine le defence witnesses brought by them amounts to denying them reasonable or proper opportunity to defend themselves and s thus caused them prejudice. The result is that the trial from t stage onwards is vitiated i.e. from the stage after the closing the prosecution case and the proceedings taken on 18th ember 1969, stands nullified. Consequently I allow the appeal and set aside their conviction as well as sentence awarded to them and direct that the case be remanded to the learned trial Court or his successor and the case be retried from the point of the conclusion of the prosecution evidence and the appellants be allowed to examine the above- mentioned two defence witnesses, whereafter the trial be brought to a conclusion, after the hearing of arguments, by a judgment of conviction or acquittal, as the case may be.
It may be mentioned that this view is supported by Moonda v. The State (1). In that case also the accused-appellants had been denied the opportunity to produce defence evidence, which according to their Lordships of the Supreme Court, was their vested right. Their Lordships therefore remanded the case to the trial Court, to be retried from the point of conclusion of the prosecution evidence. The petitioners who are on bail, shall continue to be on bail till the conclusion of the trial. . Case remanded.
(1) PLD 1958 SC (Pak.) 275