NAZIM HUSSAIN SIDDIQUI, J.-- This appeal, under Section 417 Cr.P.C., has been preferred by the State against the judgment dated 5-2-1989, passed by Miss Mah Jabeen, learned III Additional Sessions Judge, Karachi East, whereby she acquitted the respondents who were tried for the offences punishable under Sections 148/149 and 307 P.P.C. The facts relevant for decision of this appeal are as follows:- The case of prosecution, is that on 28-1-1979 complainant Pervaz Ansari lodged a report, which was registered at Police Station Malir City, stating therein that he was residing on upper floor of a building, known as, Madoodas Building, sitfiate at Malir City, and on the ground floor of said building there was an office of Muslim League and his brother Mukhtar Ansari was General Secretary for the Zone, while respondent Abdul Latif was member. It is alleged that respondent Abdul Latif wanted to convert said office into garage, but the complainant reported the matter to the members of Muslim League, who intervened and settled it. On the date mentioned earlier, at about 10.15 a.m.
The complainant was in his house when he saw respondent Abdul Latif alongwith his companions namely, Shahmir, Wazir, Siddique, Shabhir Patal, Sajid Patal, Muneer, Muhammad Patal, Abdul Samad Chohan, and Masoom Shah Mistri, affixing a board of garage infront of the office, he asked them not to do so and this annoyed respondent Abdul Latif, who instigated his companions to kill him (Complainants). It is also the case of prosecution that at that time Shahmir, Sajid, and Shabhir Patal were armed with hatchets, while the remaining had Iron bars . And Dandas. Absconding accused Shahmir caused hatchet blow to hi on his face and his upper lip was cut and teeth were broken. He raised cries which attracted P.Ws Qamer Irshad, Abdul Rasheed, Badaruddin, Qameruddin and Miraj. It is said in the meanwhile Shahmir again attempted to cause him another hatchet blow, but his maternal Uncle Abdul Rasheed warded off this blow and in the process his (Abdul Rasheed) little fingers of right hand were cut. Thereafter, Shahmir caused hatchet injuries to P.Ws Badaruddin and Qamer Irshad on their heads. Respondent Shabeer Ahmed had inflicted hatchet blow upon P.W. Miraj on his head. Respondent Sajid had given hatchet blow to Qameruddin. Respondent Latif had also caused injury to complainant on his waist by some pointed substance. Further, it is said that remaining accused/respondents had beaten complainant party with Iron bars and Dandas. According to prosecution, the incident was witnessed by P.Ws Syed Jamal Ahmed, Syed Muhammad Tariq, Awais Adeel and others.
2. The investigation of this case was conducted by Mirza Muhammad Rafiq who at trial was not examined as he had retired from service and his present whereabouts were not known to any body.
Learned Trial Judge Vide Order dated 24-7-1986 declared accused Masoom Shah Jaffri, Shahmir, and Siddiq, as proclaimed offenders, while the respondents Nos. 1 & 2 were declared proclaimed offenders by this court, as per Order dated 12-12-1989.
Necessary charge under aforesaid sections was framed against the respondents to which they did not plead guilty and claimed to be tried. At trial the prosecution examined Babu Khan Ex. 13, Pervez Ansari Ex. 14, Miraj Ansari Ex. 18, Qamer Irshad Ex. 19, Abdul Rasheed Ex. 20 Khadim Hussain Ex. 21, Muhammad Saddiq S.I.P. Ex.' 22, Muhammad Bashir S.I.P., Ex. 24, Syed Jamal Ex.25, Badaruddin Ex.26, Dr. Asad Ullah Khan Ex.27 and Qameruddin Ansari Ex.32.
The respondents in their statements recorded under Section 342 Cr.P.C, have denied prosecution, allegations and claimed to be innocent. They neither examined themselves on oath nor produced any witness in defence.
3. On the conclusion of Trial learned Additional Sessions Judge acquitted the respondents by the judgment, which has been impugned in this appeal.
It has been contended on behalf of appellant that the judgment of acquittal is based upon total misreading of evidence and it has resulted in miscarriage of justice. Learned State Counsel has also argued, that Mirza Muhammad Rafiq Investigation Officer at trial was not examined and no effort was made to secure his attendance. It is also contended that evidence of injured P.Ws namely, Pervaz Ansari, Miraj Ansari, Qamer Irshad, Abdul Rasheed and Badaruddin, has not been correctly appreciated by the learned Trial Judge.
A close scrutiny of the evidence brought on record reveals that the trial was not conducted properly and sufficient attention was not paid to the substantial and material points involved in the matter but only steps were taken to dispose of the . Matter, which, infact, caused failure of justice.
Muhammad Yousuf Process Server was given bailable warrants for P.Ws Awais Adeel, Syed Tariq, and Syed Jamal for execution. Instead of examining him, Khadim Hussain H.C. Was examined, who stated that said Process Server was working with him and above named P.Ws were not available.
No reason was given as to why said Process Server was not examined. The procedure adopted by learned Trial Judge is not warranted by law. As stated earlier, Rafiq Baig I.O. Has also not been examined. On this point Muhammad Bashir S.I.P, was examined, who deposed that said Investigation Officer had retired from service and his whereabouts were not known. In cross examination, he deposed that if time was given to him, he could try to find out his whereabouts. It appears that no time was given to him and nor he produced the summon in court allegedly given to him. Investigation Officer is a very important witness. Besides stating about the investigation conducted by him; he is also to depose about the contradictions covered by section 162 Cr.P.C.
Retirement from service does not mean that his attendance could not be secured, In fact, no efforts were made to secure his attendance.
Dr. Asad Ullah Khan has produced Medical Certificates of injured Pervaz Ahmed, Qameruddin, Miraj and Abdul Rasheed. These injured were examined by Dr. Moosa Brohi, who was also not examined at trial and nor any reason was given for not recording his evidence in court. Learned counsel for the respondents submitted that Dr. Moosa Brohi has left the country. There is, however, no evidence available on record to substantiate this contention. First Process Server, should have been examined on this point and thereafter the evidence of Dr. Asad Ullah Khan could be recorded.
Straightaway the evidence of the latter could not be brought on record. Besides. Dr. Asad Ullah deposed that some of the injuries on the persons of injured Pervaz Ahmed, Qameruddin, were reserved. No effort was made to bring on record the final report about the reserved injuries, In ease of conviction, nature of injury is always kept in view while awarding the sentence. For above reasons, the evidence of Dr. Asad Ullah Khan can not be considered.
4. The statements of respondents have not been correctly recorded. The examination of accused, under Section 342 Cr.P.C., is done with the purpose ol enabling him to explain the circumstances, which may appear against him. It is based on the principle of maxim, audi alterm Partem, which means that no one should be condemned un-heard. It is settled proposition of law that object >>1 examination of accused is two fold. Firstly, to apprise him about material facts or circumstances, which may have been brought on record against him and may be used as such, and secondly, to know about his explanation regarding those material facts or circumstances. Therefore, it is necessary that accused must be questioned separately about all the material circumstances, which may be used against him. To put a long composite question, as has been done in this case, is not the proper compliance of Section 342 Cr.P.C, In this case, no specific questions were put to respondents that what part each of them had played in the commission of this crime. Likewise, the names of eye witnesses were al>o not disclosed to him.
The provisions of Section 340(2) Cr.P.C., are mandatory. In case the accused declines to give evidence on oath in disproof of the charges or the allegations made against him, the court shall consider its impact while discussing the evidence brought on record.
5. Learned Trial Judge discarded the testimony of above named injured P.Ws on the ground that they are accused in case No. 1101/85, which according to counsel for the respondents, in a cross case between the parlies. Suffice it to say that presence of injured P.Ws is established at the place of occurrence and their testimony could not be discarded simply on the ground that they were accused in said case. The evidence of every witness is to be properly sifted and Weighed with necessary care and caution in the light of the facts of the case, which has not been done in this case.
Learned counsel for the respondents argued that accused persons of cross case have also been acquitted, as stich, the respondents arc also entitled to acquittal. It appears that no appeal has been preferred in said cross case, therefore, its finding can not be challenged in this mailer. It is the duly of court to make independent assessment of evidence in each case. On this point, reliance, is placed on the case reported in 1970 S.C.M.R. Pace No. 256, Wazid Moral alias Wazid Ali and 13 others Vs. The Stale and another. In this case, above principle of independent assessment of evidence in 'each case was laid down by Hon'ble Supreme Court, while dealing with the cross cases. In another case reported in P.L.D. 1971 Supreme Court Pane No. 713. Muhammad Sadiq Vs. The Stale and another, the Hon'ble Supreme Court held that general practice to try counter cases side by side till their conclusion and pronounce judgment in each case simultaneously is not absolute or inflexible.'
There could be departure from such, procedure on facts of particular case.
6. In view of the above discussion, the impugned judgment is set aside and the case is remanded to III Additional Sessions Judge Karachi. East lot deciding it afresh, keeping in view the observations made earlier. Learned Trial Judge would make efforts to secure the attendance of P.Ws Awais Adeel, Saved Tariq, Saeed Jamal, Dr. Moosa Brohi and Mirza Muhammad Rafiq Investigating Officer.
In case these witnesses are not available, then the Process Server, its required under the law, will be examined. Statements of respondents under Section 342 Cr.P.C., will be recorded afresh and for each and every allegation separate question would be put up. Learned Trial Judge shall take this case out of turn and complete its trial expeditiously. The respondents shall continue to be on bail till 18th August, 1992, by which lime they shall appear before the Trial Court and execute fresh bail bonds. By short order dated 16th July, 1992, we had allowed the appeal for the reasons mentioned above.