' This appeal is directed against the judgment, dated 30-8-1997 passed by the learned Ilnd Additional Sessions Judge, South Karachi, whereby the appellants were convicted under section 392, P.P.C. And sentenced to three years' rigorous imprisonment. Benefit of section 382-B, Cr.P.C.
Was extended to the appellants.
2. Briefly stated, the prosecution case, as gathered from the record is that on 4-2-1995 a report was lodged by one Suleman Masood son of Masoodul HasSan with Gizri Police in District South Karachi wherein, it was alleged that on the same day at about 7-30 hours when his parents were available on the first floor of the house and his wife and son, namely, Kamal had gone out of the house, in order to do their morning exercise, two unknown dacoits duly armed with fire-arms, forced their entry in his house and on gun point, robbed away a sum of Rs,75,000. Eight pairs of tops, four golden chains with lockets and four pairs of bales. It was also alleged that in addition to the above three gold sets of precious stones were also taken away. On the stated allegations a formal F.I.R.
Bearing No,23 of 1995 was registered under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and in consequence thereof accused/appellants were arrested by the police. It appears from record that accused/appellants of first instance were arrested by Ferre Police in another case, but subsequently they were brought to the Police Station Gizri. Their identification parade duly supervised by a Magistrate was also arranged wherein; one of the eye-witnesses, namely Masoodul Hassan duly identified them to be the dacoits. On the completion of investigation the accused/appellants were challenged to the Court of trial.
3. Charge was accordingly framed, to which both the appellants pleaded not guilty and claimed trial.
4. At trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the accused/appellants produced five witnesses in all. P.W.1 Muhammad Rafique deposed that he subsequent to the registration of the case had visited the place of occurrence and in presence of the complainant had inspected the same in order to prepare the inspection report. He produced in Court the inspection report as Exh.P.7. P.W.2 Liaqat Ali deposed that in February, 1995 he was posted as S.H.O. Police Station Gizri. In pursuance of information received from Frere Police Station, he had arrested the accused/ appellants, in the instant case, vide memo. Exh.11. P.W.3 Masoodul Hassan is eye-witness of the occurrence. He reiterated the version contained in the F.I.R.
And Confirmed that accused/appellants were the same who had committed robbery in his house.
He was subjected to lengthy cross-examination but nothing favorable to the defense and damaging to the prosecution was elicited from him. He further, deposed that he in the course of identification parade had identified the-accused appellants. P.W,4 Ali Murad deposed that the police had arrested the accused in his presence. He produced memo. Of arrest as Exh.13-A. P.W.5 Irfan Ahmad is the Investigating Officer of the case. He deposed that the accused/appellants were initially arrested by Frere Police in Crime No,49 of 1996, wherein they were subjected to interrogation and in course thereof, it was disclosed that they had also committed robbery in the house of complainant. They as such, were also arrested in the instant case, and put to the identification test wherein, they were correctly identified by the witnesses in presence of the Magistrate to he the dacoits. He further, deposed that in the course of interrogation Phool Chand accused told him that he had sold the jeweler to one Rafique Jeweler at Korangi and that he, subsequent to receipt of the information had gone to the said shop, but it was found closed. The witness further deposed that on inquiry was made by him relieve upon it was learnt that the owner of the shop had left the same. For good. He prodded photo copy of the memo. Of identification as Exh.16. He too, was subjected to lengthy cross-examination but his testimony remained unshaken
5. On the completion of prosecution evidence the accused/appellants were examined under section 342. Cr.P.C. Wherein they denied the charge and pleaded that they were innocent. They, however, refused to lead any evidence in their defense or appear as their own witnesses in terms of section 340(2), Cr.P.C.
6. After hearing arguments of the parties the learned trial Court convicted and sentenced the appellants as mentioned in the opening para. Hereof.
7. I have heard Mr. Shaukat Hayat. Advocate. Learned counsel for the ,appellants, Mr. .Laved Akhtar.
Advocate. Learned counsel for the State and have also gone through the relevant record with their help.
8. Mr. Shaukat Hayyat, Advocate, learned counsel for the appellants has contended that evidence produced by the prosecution was defective and insufficient to prove the charge of robbery so as to warrant conviction of the appellants under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
' He has further contended that the learned trial Court while recording conviction against the accused/appellants has primarily relied upon the statement of P.W.3 Masoodul Hassan and has sought corroboration from the identification of the accused/appellants by him in the course of identification parade. Learned counsel for the appellants argued that learned Court below in doing so has gone wrong in law by taking into consideration the identification parade memo. In spite of the fact that the same was not proved at the trial in accordance with law. He maintained that only a photo copy of the said memo. Was produced before the Court by P.W.5 Wan Ahmad which, despite objection from the defense, was taken on record as Exh.16. However, neither original thereof, was produced in Court nor the same was compared with the original, therefore, the document in question being inadmissible could not have been read in evidence. Mr. Laved Akhtar, Advocate, learned counsel for the State while confronted with the above proposition candidly conceded that in fact original memo. Of the identification parade was not produced at the trial, but the prosecution in doing so was precluded by this fact that the original documents, at the relevant time, was lying on the file of Magistrate No,5, Karachi East in another case. He pointed out that the direction for production of the same was made to the concerned Magistrate by the learned trial Court, but needful was not done. Thus, there was no deliberate omission at the part of the prosecution. He, however, submitted that in order to do complete justice to the parties as well as the proceedings an opportunity may be provided so that the document in question in original may be produced and proved on record.
' In order to ascertain as to whether there is substance in the contentions raised by the learned counsel for the parties I have minutely gone through record of the case myself. It reveals that a photo copy of the document in question was produced before the Court by P.W.5 as Exh.16, but production thereof was objected to by the learned counsel for the defense. It appears that in view of the objection made by the defense counsel it was ordered by the learned trial Court that the original identification parade memo. Should be produced on the next date. Relevant portion of the statement of P.W.5 which contains the direction reads as follows:-- "I produce memo. Of identification parade its photo copy produced as Exh.16. Objection raised by D.C. It is not admissible as the original is not produced before the Court and yet to be determine either it is an attested copy of original or not subjection to objection this memo. Bring on record with direction to Investigating Officer to produce its original on next date. A letter of Magistrate of Court No,V South, Karachi for producing the original memo. Of identification parade."
' It appears that despite clear directions original identification parade memo. Was not produced before the trial Court and the case was decided on the basis of the evidence already available on record. It may be observed here that in order to prove a document a particular mode has to be adopted under the law. Reference in this regard, may be made to Articles 73 to 76 of the Qanun- eShahadt Order, 1984 wherein it has been clearly provided that except in the cases covered by Article 76 of the Qanun-e-Shahadat Order, 1984 all documents must be proved by primary evidence. Needless to point out that Article 73 of the Qanun-e-Shahadat Order, provides that primary evidence means document itself produced for the inspection of the Court. Thus, to my mind, the learned trial Court was not justified to take on record photo copy of the document in question and that too. Without making a comparison with the original. Such casual approach is not appreciable.
9. It also appears from the record that subsequent to the passing of the above order neither any serious attempt was made by the prosecution to produce on record the original document nor it was tried to be proved through secondary evidence. Likewise. It appears that no further efforts were made. Even, by the trial Court to bring on record the original document or to verify its authenticity through any other source or mode, which to my mind, was essential for just decision of the case.
Needless to point out that under section 540, Cr.P.C. Primarily it is the duty of the trial Court to summon entire available evidence and admit the same if it was necessary for just decision of the case. In this view I am fortified by the observations of the Honorable Shariat Appellate Bench of the Supreme Court of Pakistan made in the case of Muhammad Azam v. Muhammad lqbal reported as PLD 1984 SC 95 which reads as under:-- "The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/admit the same by virtue of power under section 540, Cr.P.C. It reads as follows:-
540. Power to summon material witness or examine person present.--- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case'.
' This provision is divided into two parts: One where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case."
' In view of abovementioned legal proposition both the learned counsel for the parties submitted that in order to do complete justice between the parties it would be highly appropriate to remand the case to the trial Court for fresh decision.
In the instant case since it appears that production of the original identification parade memo.
Was elemental towards just and effectual decision of the case, therefore, I am inclined to allow the request made by the parties. Judgment. Dated 30-8-1997 as such, is set aside and the case is remanded to the trial Court for fresh decision, after allowing the prosecution an opportunity to bring on record 'the original identification parade memo. Or/and prove on record the same, in accordance with law and also to re-examine the accused/appellant under section 342, Cr.P.C. And providing him an opportunity to lead his defense with regard to the document in question.