1. NASIM HASAN SHAH, J.-- On the morning of the 1st June, 1970 at about 8 a.m. Four persons, namely, Raja Khizar Hayat, his son Nazar Hayat, Jan Muhammad and Alam Sher were murdered in the house of Raja Khizar Hayat deceased, situate in Chak No.5/1-A.L. With in the limits of Police Station Renala Khurd in the District of Sahiwal, Five persons, namely, Umar Draz son of Aurangzeb, Umar Hayat son of Fateh Khan, Khizar Hayat son of Ahmad Nawaz, Sparis Khan son of Fateh Khan and Ghulam Hussain son of Muhammad Khan were accused of having committed these murders and were accordingly tried by the Additional Sessions Judge-II, Sahiwal. The learned trial Court, by its order and judgment dated 27-1-1976, however, found ail the accused persons to be not guilty and were, therefore, acquitted by him.
2. Dissatisfied with this pronouncement, the State filed an appeal under section 417, Cr.P.C. In the Lahore High Court at Lahore to challenge their acquittal. The said appeal came up for preliminary hearing on 22-9-1976 before a Division Bench of the said Court which decided to admit the said appeal observing that the reasons given by the trial Court while acquitting the accused- respondents required re-examination and issued non-bail able warrants against them. It appears that subsequently, by different orders, made during the pendency of the appeal all the accused- respondents were enlarged on bail. The appeal against acquittal ultimately came up for hearing on the 1st July, 1980, before the Division Bench of the High Court consisting of Khalil-ur-Rehman and Nisar Ahmad, JJ. (as they then were). The said appeal was heard by the Division Bench on the 1st, 2nd and 5th July, 1980 and where after the judgment was reserved. It appears that the judgment, which was written by Khalilur Rehman, J. Was ready by 10-7-1980 as Nisar Ahmad, J. (as he then was) while signing the same appended also the date on which he signed the judgment viz. 10-7- 1980. However, the judgment was actually announced on 13-7-1980 but not by a Judge who was a member of the Bench but a different Judge, namely Mehboob Ahmad, J. By this judgment, the appeal of the State was accepted in so far as it was directed against the acquittal of Umar Draz son of Aurangzeb and he was found guilty under section 302, P.P.C. On four counts and was sentenced to death on each count; but it failed in so far as the remaining four accused- respondents, namely, Umar Hayat, Khizar Hayat, Sparis Khan and Ghulam Hussain were concerned and the order of acquittal passed in their favour by the Additional Sessions Judge-II, Sahiwal, was maintained.
3. Aggrieved by the aforesaid judgment, Umar Draz son of Aurangzeb, who was convicted for the first time, filed a direct appeal in this Court (Cr. A.No.72 of 1980). Likewise, the complainant in the case, Muhammad Iqbal, who felt dissatisfied by the judgment in so far as it maintained the acquittal of the four accused, namely, Umar Hayat, Khizar Hayat, Sparis Khan and Ghulam Hussain, filed a petition in this Court to challenge the order of their acquittal (Cr. P.S.L.A. No.475 of 1980). The State also was dissatisfied with the judgment of the High Court on the same ground and filed a petition to challenge the judgment and order of the High Court in the Court (Cr.P.S.L.A.No.586 of 1980). The criminal appeal, as well as the aforesaid two petitions for leave to appeal have now come up for disposal before us.
4. After the case had been argued on the merits at some length, Mr. Ijaz Hussain Batalvi, learned counsel for the appellant, Umar Draz (in Cr. A No.72 of 1980) raised a point to the effect that the impugned judgment of the High Court announced on 13-7-1980 was a nullity in the eye of law because the Division Bench of the High Court, which passed the said judgment comprising of Mr. Justice Khalil-ur-Rehman and Mr. Justice Nisar Ahmad (as they then were), could not have done so, as on the date on which the judgment was actually announced viz.13-7-1980 one of the members of the Bench, namely, Mr. Justice Nisar Ahmad had ceased to be a Judge of the High Court.
5. Since this point went to the root of the case we have gone into this aspect of the matter carefully. It transpires that Mr. Justice Nioar Ahmad was appointed as a Judge of the High Court for a period of one year on 10-7-1979 and entered upon the execution of his duties on 11-7-1979 and that his term of office exired on 10-7-1980 where after it was not extended. Thus, on 13-7-1980 when the judgment was announced he was, indeed, not a Judge of the High Court. The question, therefore, is whether the judgment of the Division Bench which was announced on 13-7-1980 can, in the above circumstances, be considered a valid judgment of the Division Bench of the High Court?
6. All the parties agreed that this matter is governed by Rule 6 of Chapter 4-F, Part II (Civil) of the Rules and Orders of the Lahore High Court. This rule is in the following terms: 6."When a case has been heard by a Bench of the Court, the written opinions of the Judges who heard the case, but who have ceased to be attached to the Court before delivery of the judgment, shall, unless delivered by another Judge of the Benchwhich heard the case, be deemed to be minutes merely and not judgments."
7. Since we heard the parties at considerable length, we may observe that the High Court, while rehearing the case, may, if it considers appropriate, examine whether this is not a fit case where the Court should recall Abdur Rehman, P.W. Who could not be fully examined on the, point of identification of the accused on account of the intervention of the Public Prosecutor to have him declared hostile before he had concluded his statement on this point; and also whether it should summon the relevant register and other evidence relating to the gun licence allegedly left by the culprits at the spot for deciding as to whom it belonged. It is observed that in case the above questions fall within the ambit of the second part of section 540, Cr. P.C. Then it would become essential for the Court to summon all the relevant evidence for the just decision of the case (see PLD 1984 SC 95).
8. The overall result is that the two leave petitions are converted into appeal and, thus, all the three appeals are partly allowed with the finding that the judgment of the High Court dated 13-7-1980 are only "minutes merely" of the High Court and not a judgment against acquittal in the High Court.
9. The appeal shall be deemed to be still pending and shall be reheard for decision afresh. This matter will, therefore, be placed for this purpose before the High Court. In the meanwhile, Umar Draz (appellant in Cr.A. No. 72 of 1980) will be taken out of the death-cell and shall be placed amongst the under-trial prisoners.
10. However, it will be an open question before the High Court whether he should be enlarged on bail during the pendency of the appeal.
11. All the above matters stand disposed of in the above terms.