' SARDAR MUHAMMAD DOGAR, J.--- Mst. Naziran (appellant herein), got registered case F.I.R. No,30 of 1991 at Police Station Derawar, District Bahawalpur on 31-7-1991 at 3-30 p.m, It was recorded by Muhammad Abbas, S. -1. /S. H ' According to F.I.R. Mst. Naziran was about 14/15 years. Her father had gone to Chak No,24/DNB in connection with some personal matter.
' Seven days prior to registration of case Peer Bakhsh, Saifel, Dawood and Zahoor armed with Sotis entered her courtyard at about 9/10 p.m. She woke up when hand was placed on her mouth. She identified them in the moonlight. Saifel placed hand on her mouth and lifted her out of the house.
Peer Bakhsh, Dawood and Zahoor made a threatening show of Sotis, afraid of which she lost consciousness. She was taken to the road from where she was boarded in a wagon. On her alarm Muhammad Shafi and Muhammad Ramzan arrived and witnessed the occurrence. When they tried to rescue her, Saifel and Dawood threatened that if any one intervened he will not be spared.
She was taken to Chak Maddrassa Bahawalnagar on the wagon. She was kept there in a house.
There Saifel committed Zina with her forcibly. After the passage of three days Rashid Ahmad Numberdar and Sher Mian Abbasi got her released and took her to her house and handed her over to her mother.
' She explained that as her father had not returned, so she could not come earlier to report the occurrence and that she had come to report the occurrence on his return.
2. Investigation was taken up by Muhammad Abbas, S.-I./S.H.O.. Complainant's father was not satisfied with the investigation. He moved the D.I.-G. For transfer of investigation. The D.I.-G.
Entrusted the investigation to Ali Akbar, D.S.P. Crime Branch. In spite of the transfer of the investigation to Crime Branch, complainant and her father were not satisfied, as a result whereof she filed complaint Exh.P.A. Direct to the Court under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 363, P.P.C.
' In the complaint Muhammad Ramzan son of Khair Din and Abdul Rashid son of Muhammad Boota were also named as accused in addition to the four persons named as accused in the F.I.R. It was averred in the complaint that the police had refused to register case against Abdul Rashid and Muhammad Ramzan who had played incriminating roles after the abduction by the four accused named in the F.I.R. And was investigating the case unfairly.
' All the accused named in the complaint were summoned to face trial. In the meantime, the S.H.O.
Had also submitted challan to the Court. He had only challaned Saifel. Trial Judge recorded statements of five P.Ws. Including complainant, her father and the lady doctor who had medically examined her. After recording statements of the accused under section 342, Cr.P.C. He recorded statements of three D.Ws. Vide judgment, dated 15-1-1996 all the accused named in the complaint were acquitted.
3. Not being satisfied with the judgment the complainant filed Petition for Special Leave to Appeal.
On the Petition for Special Leave to Appeal being allowed the matter was converted into regular appeal and notices were sent to the respondents.
4. It came to light after the learned counsel for the appellant had taken us through the evidence that the learned trial Judge had not followed the procedure laid down for trial of the complaint case, by Supreme Court vide judgment published in PLD 1966 SC 708 (Nur Elahi v. The State, (2)
Zafarul Haq, (3) Nawaz-ul-Haq) where, challan is also pending before the trial Judge, alongwith complaint case.
Per judgment of the Supreme Court reported at page 708 of PLD 1966 SC the learned trial Judge seized of the complaint and challan case, has to take up the complaint case first for trial. In that, after recording statements of the complainant's witnesses, he has to record statements of P.Ws.
Named in challan case but not named as P.Ws. In the complaint case and produced by the complainant, as Court-witnesses, under section 540-A, Cr.P.C. So that they can be cross-examined by both the parties.
' Their Lordships of the Supreme Court have observed that such a procedure will enable the Court to have the whole evidence, included, in one trial and decision could be arrived at, after a proper consideration of the entire material relied upon by both the parties.
' In this case allegation of many omissions and undue commissions were levelled by the complainant and her father against the police. The police was alleged to have not registered the case as desired by the complainant. The Investigating Officer which included a Gazetted Officer of the Crime Branch appears to have come to the conclusion, that only one person, was needed to be tried. (This is obvious from the fact that challan has been submitted against only one person i,e, Saifel). That aspect of the case could not come on record because Of non-examination of the S.H.O./Investigating Officers.
' When we put the proposition before the counsel for the appellant, counsel for the respondents and counsel for the State, none of them could say that the trial Judge had followed the procedure laid down for trial of the complaint, by the Supreme Court of Pakistan. In fact all of them conceded that the learned trial Judge had committed error by not following the procedure laid down by the Supreme Court. However, learned counsel for the respondents submitted that the respondents have already undergone stress and strains of trial for a long time and if the case is remanded they will have to undergo more hardships. Nonetheless learned counsel for the respondents failed to cite any judgment on the basis of which we could overlook the failure of the trial Judge to follow to procedure laid down by the Honourable Supreme Court of Pakistan.
5. We are of the considered view that material irregularities/illegalities occurred due to non- following of the procedure laid down by the Supreme Court and if we go ahead to decide the appeal on the existing record it may affect one or the other party adversely. In the circumstances the impugned judgment, dated 15-1-1996, is set side and the case is remanded to the learned trial Judge. The trial Judge shall start the trial from the closing of the prosecution evidence. He shall record statements of the witnesses whose names are mentioned in the list of calendar of challan case, as Court-witnesses, unless the statement of any one of them have already been recorded as a P.W. After the recording of the statements of C.Ws. He will record statements of the accused under section 342, Cr.P.C. Afresh and afford them opportunity to make statements on oath under section 340(2), Cr.P.C. Also. After affording them opportunity to adduce evidence in defence also.
He will pass a fresh judgment after hearing.
6. We have consciously avoided discussing the evidence on record and the contentions of the learned counsel for the parties so that no one's case is prejudiced in any manner by our observations.
7. As the matter is pending for the last six years, the trial Judge is directed to conclude the trial before closing of the Courts for winter vacations i,e, 21st December, 1997. Record shall be sent back forthwith.