1. ' NASIM HASAN SHAH, ACTG. C.J.---This is a petition for review of this Court's judgment, dated 10-6- 1991 passed in Criminal Appeal No,112 of 1989.
2. ' The relevant facts of the case as summarised by the learned counsel for the petitioners are as follows: ' The occurrence took place on 20-7-1983 at peshiwela in village Okhley Mohalla, P.S. Gangial. F.I.R.
3. Was lodged by Sher Ahmad, real brother of Saleh Muhammad, deceased at P.S. Gangial on the same day at 4-30 p.m. Which was recorded by Gol Jhan, S.H.O. The incident related to triple murder of Saleh Muhammad, Ahmad Sher and Muhammad Sultan. Hakam Khan, Ahmad Yar, Zafar Iqbal and Muhammad Muzzaffar were named in the F.I.R. Alongwith Fazal Ellahi absconder and Fateh Muhammad since acquitted.
4. ' The motive for the occurrence as stated in the F.I.R. Was that Saleh Muhammad deceased had illicit relations with Mst. Nasreen, daughter of Fazal Ellahi absconder. To punish therefor, Fazal Ellahi alongwith other accused, made murderous assualt on Saleh Muhammad, ten months before the present occurrence and a case under section 307, P.P.C. Was registered on 29-9-1982.
5. Notwithstanding, his anger remained undiminished, resulting in the present occurrence.
6. ' As to manner of occurrence, the prosecution alleged that the three deceased and two witnesses, P.W.10 Jehan Khan and Jan Muhammad P.W. (not examined) hired a taxi which was brought by Fatch Muhammad, Taxi Driver. The complainant Sher Muhammad and Jan Muhammad (not examined) used a motor-cycle while the three deceased and Jehan Khan sat in Taxi Car and all of them left for the house of Mushtaq Mahajar in village Sheikhu to have a lunch there. Mushtaq, a friend of Ahmad Sher deceased who were living together in Saudi Arabia invited the members of the party. The complainant and the deceased while returning from Mushtaq's house after lunch were confronted with the accused who were travelling in a Wagon No,T.S.54, which was driven by aforesaid Fazal Ellahi. The Wagon struck against the Taxi Car. The Review petitioners and Fazal Ellahi armed with guns and rifles alighted from the wagon Fazal Ellahi raised Lalkara that they had come to take revenge of their insult and immediately opened fire on Saleh Muhammad deceased, who was hit, while sitting in the car while the other two deceased, Ahmad Sher and Muhammad Sultan received injuries while running to save their lives outside the car. However, Jehan Khan P.W.
7. Escaped unhurt. Sher Ahmad P.W.9 and Jan Muhammad P.W. (not examined) saw the occurrence, concealing himself behind the Sarkandas. After the departure of the accused the eye-witnesses namely Jehan Khan, Sher Muhammad, and Jan Muhammad came to spot and found that Saleh Muhammad, Ahmad Sher and Muhammad Sultan had succumbed to their injuries.
8. ' The review petitioners on being tried were convicted by the learned trial Judge for the offence under section 302/149, P.P.C. Hakim Khan, Ahmad Yar and Zafar lqbal and Muhammad Muzaffar were sentenced to life imprisonment, each, with fine of Rs,50,000 each on account of murdering Saleh Muhammad. Muhammad Khan for this murder was sentenced to death with fine of Rs,50,000 in default thereof to undergo for 4 years' R.I. For murdering Ahmad Sher and Muhammad Sultan, Hakim Khan, Ahmad Yar, Zafar Iqbal, Muhammad Muzaffar and Muhammad Khan were sentenced to death on either count and fine of Rs,50,000 each, or in default thereof to suffer 4 years each.
9. Fateh Muhammad accused was, however, acquitted and set at liberty.
10. ' The petitioners filed appeal before the Lahore High Court against their conviction and sentences; whereas the complainant filed a criminal revision against the acquittal of Fateh Muhammad. The Lahore High Court by its judgment and order, dated 6-7-1986 confirmed the death sentences of Hakim Khan, Ahmad Yar and Muhammad Khan, whereas the death sentence of NI uhammad Muzaffar and Zafar Iqbal for murdering of Muhammad Sultan and Ahmad Sher were altered to life imprisonment on each count. The sentences were ordered to run concurrently. However, the sentences of fine and sentences in lieu thereof were maintained. Muhammad Muzaffar and Zafar Iqbal were also extended benefit of section 382-B, Cr.P.C. Resultantly, the revision petition filed by the complainant was also dismissed.
11. ' Feeling dissatisfied all the five review petitioners aggrieved by the judgment of the Lahore High Court, Lahore, dated 6-7-1986 filed leave to appeal before this Court on 2-7-1989 (Criminal Appeal No, 112 of 1989). This criminal appeal came up for hearing on 27-5-1991 before the Bench comprising of Nasim Hasan Shah, Saad Saood Jan and Rustam S. Sidhwa, JJ., who after hearing both the parties reserved the judgment which was actually announced on 10-6-1991 at Lahore.
12. Herein, the judgment passed by the High Court was maintained and the conviction and sentences of the review petitioners were upheld under section 302/148/149, P.P.C. Hence this petition for review.
13. ' Mr. Ljaz Hussain Batalvi, learned counsel for the review petitioners, has urged, in the main, two grounds for review of this Court's earlier judgment:--
(a) The plea that a manifest contradiction existed between the medical and the ocular evidence which has not been legally or rightly attended to; and
(b) The Court received additional evidence after the conclusion of the hearing of the Criminal Appeal and before the announcement of the judgment, without following the course prescribed in this behalf by section 540, Cr.P.C.
14. ' So far as the first contention is concerned, it is submitted that this Court in para. 19 of its order (impugned herein) has itself observed that the medical testimony shows that there are no bullet injuries of any rifle on any of the three accused, whereas according to the P.Ws. Some of the review petitioners had fired upon the deceased with their rifles. This inconsistency was dealt with by this Court by observing:-- "It is alleged that there were no bullet injuries on any of the deceased. Unfortunately, the bodies of the three deceased were not ex-rayed. Six empty cartridges of 7 mm were recovered from the spot.
15. In these circumstances, it cannot be said that no rifle was used. The medical testimony therefore does not contradict the ocular account in any substantive measure as to render it doubtful."
16. (Underlining is ours)
17. ' It is urged that the above finding is based on a conjecture and, therefore, needs review.
18. ' We do not agree. According to P.Ws. It was Zafar lqbal and Muhammad Muzaffar (review petitioners Nos. 3 and 4) who were armed with rifles. They were awarded the lesser sentence on the ground that the shots fired by them had not, in all likelihood, hit Ahmad Sher and Muhammad Sultan deceased. The finding recorded by this Court, therefore, that the medical testimony did not contradict the ocular testimony "in any substantive measure as to render it doubtful" does not suffer from any infirmity.
19. ' The second ground urged by Mr. Ijaz Batalvi is about additional evidence having been received after the conclusion of the arguments. In this connection, it is submitted that the learned author Judge (Rustam S. Sidhwa, J.) had summoned the Investigating Officer to explain certain questions arising in this case and the said Investigating Officer appeared before the learned Judge in his Chamber On 5-6-1991 and made some statement before his Lordship. Neither the counsel of the parties nor the parties were summoned by the learned Judge when this statement was heard. The course adopted of summoning the said witness and receiving answers ex parte to questions posed to him was a clear violation of the provisions of section 540, Cr.P.C.
20. ' At first blush the objection raised to the course adopted seems serious. On deeper examination and further reflection this impression is dissipated. The learned counsel for the petitioners was unable to show how the petitioners had been prejudiced by the learned Judge's effort to satisfy himself on some question on which he required some Clarification. He could not show that any part of the judgment delivered was based on material not on the Court record or how any miscarriage of justice had occurred by putting some questions to the Investigating Officer in regard to his statement made in Court. It should be clearly understood that the duty of the Court is to do justice, in accordance with the law. And in doing so the foremost task of the Court is to endeavour to discover the truth in the matter before him to the extent that is humanly possible. Undoubtedly, in this endeavour of trying to discover the truth he cannot act in manner or adopt a procedure which causes prejudice to one of the parties or places any party in a disadvantageous position and where such a procedure is adopted it cannot be countenanced. But by the same token no artificial limitations or inhibitions can be placed upon the powers of the Court in following any course which enables it to do complete justice in the cause. All efforts in this direction subject to the restraints stated above would be quite unobjectionable and indeed laudable.
21. ' There is no merit in this petition for review. Dismissed.
22. ABDUL SHAKURUL SALAM, J.---I have gone through the proposed judgment of the learned Acting Chief Justice, my learned brother Mr. Justice Dr. Nasim Hasan Shah but regret that I cannot subscribe to the view that after hoaring a criminal appeal by the convicts when judgment is reserved, it is open to the Judge to call the Investigating Officer and examine him in the absence of the convicts or their counsel and then write the judgment and announce it.
2. As far as this petition is concerned the relevant facts are that the petitioner convicts' appeal was heard alognwith the complainant's appeal for enhancement of sentence of two convicts. Appeals were heard by a Bench of three learned Judges of this Court on 27-5-1991. Judgment was reserved.
23. It was announced on 10-6-1991 dismissing both the appeals. The petitioners seek review of the judgment dated 10-6-1991 on various grounds, including: "That the Review Petitioners have learnt that this hon'ble Court recorded additional evidence and was pleased to send for the Investigation Officer of the case, whose statement/deposition was received by this hon'ble Court. At the time of receiving deposition of the I.O. By the hon'ble Court, the Review Petitioners were neither informed nor represented through their counsel to assist the Court by cross-examining the witness. This course allowed by section 540 of Cr.P.C. Would still require the presence of the petitioners or their counsel in Court. Thus the judgment by this hon'ble Court requires review."
3. Learned counsel for the petitioners has produced a photostat copy of a communication from Police Lahore to S.P., Mianwali to direct the Investigating Officer to talk on phone with the learned Judge, who it appears had been assigned the case to write the judgment. In the petition it is stated that the Investigating Officer was sent for and examined.
4. No doubt, section 540 of the Cr.P.C. Provides that: "Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine and such person if his evidence appears to it essential to the just decision of the case."
24. ' But all this is to be done by the Court obviously in open Court, in the presence of the parties. From a perusal of the judgment it does not appear that the Investigating Officer was examined or heard with the concurrence of the other two learned Judges, nor the fact is mentioned in the judgment.
25. Whether the petitioners were prejudiced by the unorthodox procedure in the writing of the judgment calls for no more comment than that there is no way of saying that what the learned Judge had learnt from the Investigating Officer did not affect his mind in writing the judgment. It is obvious that there was some doubt or the learned Judge wanted to be sure about some facts of the case when he called the Investigating Officer and it is after hearing him that the mind was made up and judgment written. In all the circumstances of the case I am of the view that the matter requires rehearing. Let a notice be issued to the respondent and the complainant Sher Ahmad.
26. ' SALEEM AKHTAR, J.---I agree. Let notice be issued.
27. ' ORDER OF THE COURT ' In accordance with the view of the majority that the matter requires rehearing, issue notice to the respondent-State and the complainant Sher Ahmad to show cause why this review petition be not accepted.