' MUHAMMAD YUNUS SURAKHVI, J.- This appeal is directed against an order passed by the Shariat Court on 6-1-1999, whereby the Appeal No,15 of 1997 filed by respondents Muhammad Lal and Abdul Hameed was accepted by setting aside the judgment of District Criminal Court, Mirpur passed on 25-5-1997, and the case was remanded to the trial Court with the direction that it will record the evidence of P.Ws.5 and 9 and decide the case afresh in accordance with law, while Criminal Appeal No,16 of 1997 titled Abdul Aziz v. Lal and others filed by the appellant-complainant was dismissed.
2. The necessary facts, giving rise to the present appeal, are that on the written application of complainant a F.I.R. Was lodged at Police Station, Mirpur on 29-5-1989, at 8-20 a.m. Alleging therein that the land of his father Ghulam Nabi and respondent Abdul Hameed is adjacent to each other.
Respondent Abdul Hameed tried to construct a wall towards the side of the land of the father of the complainant six months prior to occurrence but his father stopped him to raise the said construction. Imam Din and Nazar Muhammad, the co-villagers, intervened and resolved the controversy for the time being. However respondents-accused Abdul Hameed, Muhammad Lal and Saved nourished a grudge against his father and other members of his family, particularly against the complainant. Because of the aforesaid motive, on 29-5-1989 at about 6 a.m. The respondents- accused started digging the wall of father of complainant. Muhammad Lal accused- respondent was armed with .32 bore revolver, Java' with .12 bore gun and Abdul Hameed, with a Khai. In the meantime Muhammad Siddique, who happens to be the real cousin of the complainant, came out of his house and tried to stop the accused from digging the wall. On this Abdul Hameed respondent raised a Lalkara and threatened Muhammad Siddique that he would not go alive. On hearing the noise the complainant and Abdul Hameed, son of Muhammad Shafi, came on the scene of occurrence. Abdul Hameed accused-respondent raised Lalkara and asked Muhammad Lal and laved accused not to let them go alive. On this, respondent Muhammad Lal, accused, fired on Muhammad Siddique with his .32-Bore revolver with an intention to kill him which hit him on his chest who fell down and died instantaneously. Respondent Saved accused also fired with his .12-bore gun on the complainant which caused two injuries on his right leg and ankle.
Abdul Hameed accused allegedly inflicted an injury on the head of Abdul Hameed son of Muhammad Shafi with a Khai. Resultantly Abdul Hameed son of Muhammad .Shafi was injured and fell down. It is also stated in the F.I.R. That Abdul Hameed inflicted injuries on the head and arm of the complainant with Khai. The occurrence was stated to have been witnessed by Daud son of Ali Shan and Gulab Din son of Hassan Muhammad. On this, report a case under section 5/15, I.P.L. Read with section 307/34, A.P.C. Was registered at Police Station, Mirpur. After necessary investigation the challan was presented against the accused-respondents before the District Criminal Court, Mirpur.
The trial Court after recording the evidence at the conclusion of the trial convicted respondent Muhammad Lal and sentenced him to 15 years' simple imprisonment along with payment of Rs,2,91,666.60 as Diyat, whereas respondent Abdul Hameed was sentenced to 10 years simple imprisonment along with a fine of Rs,50,000 and in case of default of payment of fine he was to undergo further imprisonment for three years under section 5/15, I.P.L and 307/34, A.P.C.
3. Against the aforesaid conviction order recorded by the trial Court, the respondents-convict preferred an appeal before the Shariat Court praying therein that they may be acquitted. The complainant Abdul Aziz also filed an appeal for enhancement of sentence of the convict- respondents and also to the effect that simple imprisonment may be converted into rigorous imprisonment. The Shariat Court vide its order impugned dated 6-1-1999, as said earlier, by accepting the Appeal No,15 of 1997 filed by accused Muhammad Lal and another set aside the judgment and order of the District Criminal Court, Mirpur passed on 26-5-1997 and remanded the case back to the said Court with the direction that after recording the evidence of P.Ws. 5 and 9 it shall decide the case afresh in accordance with law. However, Appeal No,16 of 1997 titled Abdul Aziz v. Lal and others filed by the appellant-complainant, herein, was dismissed. Hence this appeal.
4. In support of appeal, it was vehemently argued by Mr. Muhammad Abdul Khaliq Ansari, the learned counsel for the complainant-appellant, that the only ground made basis for accepting the appal of accused-respondents and remanding the case to the trial Court was that without recording the evidence of P.Ws. 5 and 9 the conviction order recorded against the accused persons was bad in law as the aforesaid P.Ws. Were material witnesses in the estimation of the Shariat Court. The learned counsel contended that the prosecution was not bound to produce all the witnesses cited in the calendar. These witnesses, according to the learned counsel were unnecessary as all the other material witnesses were produced by the prosecution. The learned counsel strenuously argued that by non-producing the aforesaid witnesses, if at all, any disadvantage was caused, it was to the case of the prosecution and not to the defence. In the estimation of the learned counsel for the complainant-appellant it was all done to give undue advantage to the accused-respondents so that after setting aside their conviction they may be released on bail and the same happened virtually. The learned counsel submitted that by reversing the judgment of the trial Court merely on the basis of conjectures and surmises and by an illegal approach the Shariat Court has committed an illegality resulting into miscarriage of justice. The learned counsel contended that if the P.Ws.5 and 9 were not examined by the prosecution, the defence was at liberty to examine the aforesaid witnesses as its own witnesses or to have them examined as Court witnesses, but the defence failed to avail either of the aforesaid remedies. If the evidence of the aforesaid witnesses was so essential to the just decision of the case, the Court itself was also competent to call them as Court witnesses. The learned counsel contended that the case of the prosecution mainly rests on the ocular testimony of the eye- witnesses namely Abdul Aziz, Abdul Hameed and Gulab Din, who were examined by the prosecution supported by medico-legal evidence. According to the learned counsel the testimony of the eyewitnesses could not be doubted as they were injured in the occurrence which took place in a broad daylight. Even the presence of aforesaid eye-witnesses is admitted by the defence, submitted the learned counsel. The salient features of the prosecution case, according to the learned counsel for the complainant-appellant, are that the time of occurrence, date and place of occurrence, the presence of eye-witnesses and the accused stood admitted. It was also established on the basis of material brought on record that the deceased was done to death by revolver shot of accused Muhammad Lal. The learned counsel also contended that the accused- respondents took a plea of self-defence which is indicative of the fact that the prosecution version, as alleged, stands proved, but the Shariat Court without any justifiable reason remanded the case to the trial Court on the basis of artificial grounds. The learned counsel for the appellant further maintained that the evidence of P.W.5 Nazar Muhammad was only .Relating to the motive, whereas the evidence of P.W.9 Sajawal Khan pertained to recovery memos. The learned counsel maintained that the prosecution in order to establish the motive need not examine the said P.Ws. As there is other sufficient material on the record admitting the motive for the crime. Similarly the evidence of Sajawal Khan, P.W.9, which pertains only to recovery memos. Was not so essential as the other witnesses relating to the same recovery memos., have already been examined by the prosecution The Investigating Officer who effected the recoveries was also produced by the prosecution. In this view of the matter the evidence of P.Ws.5 and 9 being immaterial for the purpose of proving the guilt against the accused-respondents, the Shariat Court remanded the case to the trial Court on the basis of purely artificial and flimsy grounds. The learned counsel also contended that the case was remanded merely to give advantage to the accused-respondents to release them on bail, therefore, it is enjoined upon this Court to cancel the concession of bail allowed to the accused- respondents and to commit them to custody.
5. Ch. Muhammad Mushtaq, the learned Additional Advocate-General, supported the arguments advanced by the learned counsel for the complainant-appellant.
6. In reply Mr. Sher Zaman Chaudhry, the learned counsel for accused-respondents 1 and 2, controverted the arguments advanced by the learned counsel for the complainant-appellant. The learned counsel pressed into service the submission that it is wrong to suggest that the accused were released on bail by the trial Court after remand of the case by the Shariat Court. As a matter of fact, according to the learned counsel, the accused faced their trial for more than two years and during the trial they were given the concession of bail as the trial could not be concluded within a period of two yep -s and as such they were given the benefit of amended proviso of section 497, Cr.P.C. However, after their conviction by the trial Court, the conviction was set aside by the Shariat Court on the ground of non-production of two prosecution witnesses and as. The accused- respondents remained on bail during the trial, the trial Court after remand of the case again released the accused on bail. The learned counsel also pointed out that after the remand of case by the Shariat Court, the order of granting bail to accused-respondents was not assailed by the prosecution or for that matter the complainant before a proper forum i,e, the Shariat Court, therefore, the matter of cancellation of bail not Tieing before this Court, could not be considered by the Court, especially so when the order of grant of bail to the accused-respondents is not before the Court. The learned counsel also contended that there were serious infirmities and illegalities in the conviction order recorded by the trial Court, therefore, the accused-respondents were rightly released on bail.
7. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated at the very outset that it is not the duty of the prosecution to produce each and every witness cited in the calendar of challan. It depends on the will of the prosecution to produce such witnesses whom it deems necessary for proving the guilt of the accused, However, if the evidence of any of the witnesses is so material that in absence of it no just decision could be pronounced by the Court, the court is competent to summon such witness and record his statement. Therefore, the argument advanced by the learned counsel for the complainant appellant that for proving the prosecution case the evidence of P.Ws.5 and 9 was not material is not without substance. The prosecution was not bound to produce each and every witness cited in the calendar of challan. If the evidence of P.Ws.5 and 9 was at all material that would damage prosecution case and not the defence. In this view of the matter, we agree with the contention of the learned counsel for the appellant that in the circumstances of the case when the other recovery-witnesses on the same point were examined by the prosecution, the evidence of P.W.9 which relates to certain recovery memos. Was not essential. Similarly as stated by the learned counsel' for the complainant-appellant that if the motive as alleged by the prosecution stands established from other material brought on record, the evidence of P.W.5 was also not material.
Thus, the ground made basis for remand of case, in our view, does not sound good and the same is therefore, rejected.
8. So far as the plea of the learned counsel for the appellant that this Court should in the interest of justice cancel the bail of accused-respondents as the remand order was passed merely to give undue benefit to the accused-respondents for their release on bail is concerned, the same has not persuaded us because the accused-respondents were initially bailed out by the trial Court as the trial could not be concluded within a period of two years. Later on, when the case was remanded the trial Court was within its competence to release the accused on bail if it was satisfied that there were some infirmities in the case of the prosecution by tentative assessment of the prosecution evidence. As the accused were released on bail by a separate order which was not assailed by way of appeal before' the Shariat Court, we are reluctant to agree with the contention of the learned counsel for the complainant-appellant. Against the order of grant of bail a particular forum is provided i,e, the Shariat Court, and then after that, this Court, but the prosecution did not seek the redressal of its grievance by resorting to proper course. Therefore, we are not inclined to accept the contention of the learned counsel for the complainant-appellant, the same, therefore, stands repelled. However, we have noticed that the accused are facing the agony of trial for the last about more than 10 'ears, thus it would be in the interest of justice that the Shariat Court should hear and dispose of the case within a period of three months from the date of this order.
9. In the light of what has been stated above, by setting aside the impugned order of the Shariat Court, we accept the appeal and remand the case to the Shariat Court for deciding the appeals afresh within a period of three months from the date of order of this Court.