1. ' AMAN ULLAH KHAN YASINZAI, J.---This Acquittal Appeal under section 7, of the Suppression of Terrorist Activities (S.T.A.) Act, 1975 has been preferred by the Government of Balochistan through the learned Additional Advocate-General against the judgment dated 11-1-1999 passed by Sessions Judge/Special Judge S.T.A., Quetta whereby the respondent has been acquitted of the charge under section 302/34, P.P.C.
2. ' The facts giving rise to this appeal are that complainant P.W.5 Agha Nasir Ahmad Bangulzai lodged report with Sariab Police Station on 24-8-1994 under section 302/34, P.P.C. Averring therein that at about 10:30 a.m. He was informed on telephone that his nephew Sher Baz Bangulzai, Labour Welfare Officer has been injured in his office at Satellite Town Quetta. On receiving such information he reached Labour Welfare Office where he came to know that the injured had been shifted to Civil Hospital, Quetta. Thereafter, he went to the Civil Hospital and saw the dead body of Sher Baz lying in a pool of blood as he had received bullet injuries on various parts of his body. It is further averred that his nephew had been murdered by the respondents and his companions. On such report, F.I.R. .Was lodged. Appellant remained absconder for a considerable long period. He was arrested in Karachi in another case and thereafter he was duly arrested in the instant case on or about 4-8-1996 and was shifted to Quetta. After thorough investigation, challan of the case, was submitted before Sessions Judge/S.T.A. Court, Quetta. Charge was framed on 28-12-1996 which was denied by the appellant. The prosecution examined as many as 10 witnesses.
3. ' It is pertinent to mention here that the only witness P.W.2 who was eye-witness in the case, resiled from his statement and was declared hostile and the District Attorney was allowed to cross- examine the said witness. P.W.2 Ghulam Qadir had also identified the respondent in identification parade held on 15-7-1996 in the Police Station in presence of P.W.3 Zulfiqar Durrani. After resiling from his statement of P.W.2, the prosecution moved an application for recalling of the witness under section 540, Cr.P.C. Wherein it was averred that the witness had resiled from his statement only due to coercion and threat by the respondent. Alongwith the application, affidavit of P.W.2 Ghulam Qadir was also filed. Notice of the said application was given to the respondent which was contested by him. After hearing the parties, the learned Special Judge S.T.A. Court allowed the application and it was ordered that P.W.2 be recalled and examined as a Court witness vide order dated 15-9-1997.
4. ' Feeling aggrieved from the Order dated 15-9-1997 wherein application under section 540, Cr.P.C.
5. Filed by the applicant was allowed the respondent filed a Criminal Revision before this Court which was allowed and the Order dated 15-9-1997 was set aside and the application under section 540, Cr.P.C. Was ordered to be dismissed vide judgment dated 27-3-1998. The complainant being aggrieved from the said order, filed a petition for leave to appeal before the Hon'ble Supreme Court on 19-11-1998. The order of the High Court was assailed on the ground that the High Court had no jurisdiction to entertain the Criminal Revision against the Order of an S.T.A. Court. The Hon'ble Supreme Court disposed of the matter vide order dated 19-11-1998 and left the question regarding recalling of the witness under section 540, Cr.P.C. Open and held that the same can be agitated before the. High Court in appeal or revision at the time when the final judgment is passed. As far as the question whether the order passed by the S.T.A. Court could be assailed in revisional jurisdiction is concerned, it was also left for the parties to be agitated before the High Court. Relevant observations made by the Hon'ble Supreme Court are reproduced hereinbelow: "After we heard the learned counsel for the parties and the learned counsel for the State at some length, we are of the view that the controversy whether the order passed by the S.T.A. (Special Court) was subject to revisional jurisdiction of the High Court, need not be decided in the case, as against the final order of S.T.A. (Special Court) an appeal is available before the High Court. The learned counsel for the complainant and the accused jointly stated that in these circumstances, if the question relating to jurisdiction of recalling the above witnesses under section 540, Cr.P.C. By the trial Court is left open to be agitated in appeal or revision as the case may be, before the High Court from the final judgment of the Special Court, they will be satisfied. We are also of the view that in the circumstances of the case, it is not necessary to express our opinion on the question whether the order passed by the S.T.A. (Special Court) was subject to the revisional jurisdiction of the High Court and, therefore, leave it open to the parties to agitate before the High Court in appeal or revision as the case may be, for the final order/decision of the S.T.A. (Special Court), the question whether the trial Court ought to have summoned the witness, who was examined in the case as prosecution witness but declared hostile. With these observations, the appeal stands disposed of accordingly. "
6. ' After remand of the case by the Hon'ble Supreme Court, during pendncy Of the case, the respondent moved an application under section 249-A, Cr.P.C. For acquittal of the accused. The said application was agitated by the prosecution. The learned Special Judge S.T.A. Allowed the application and acquitted the appellant vide Order dated 11-1-1999; hence this appeal by the Government of Balochistan.
7. ' At the very outset, Mr. Raja M. Afsar, Advocate for the respondent besides opposing the appeal on merits also objected to the maintainability of the appeal on two-fold grounds:-
(i) That the appeal is barred by time. The learned counsel argued that the impugned order was passed on 11-1-1999 and copy of the order was completed on 30-1-1999 and appeal was filed on 24-3-1999.
(ii) That the Advocate-General was the only authorized officer to file the appeal and the Additional Advocate-General had no such authority to file the instant appeal.
8. Mr. S.A.M. Qadri, Advocate for the complainant supported the appeal and stated that it is well- within time and also argued that the appeal was filed by the learned Additional Advocate-General on the directions of the Advocate-General.
9. ' Mr. Ghulam Mustafa Mengal, learned Assistant Advocate-General adopted the arguments of Mr. S.A.M. Qadri, Advocate and submitted that the learned Additional Advocate-General was authorized by the Government to file appeal. In this regard he placed Notification, dated 22nd July, 1978 on record.
10. ' Adverting to the Arguments of Mr. Raja M. Afsar, Advocate regarding the appeal being barred by time, record reveals that the impugned Order was passed on 11-14999 and on the same date, an application was filed. The date of completion of the application is 30-1-1999 and the same was delivered on 23-2-1999 and the appeal was filed on 24-3-1999, Mr. Raja M. Afsar, learned counsel emphasized that since the copy was completed on 30-1-1999 and limitation shall commute from the date of completion of the order i,e, 30-1-1999; thus, the appeal was to be filed within 30 days from the said date and thus, the same is barred by time.
11. ' Mr. S.A.M. Qadri, Advocate for the complainant contended that no date was given to the complainant for collection of the order nor he was informed by the copying agency about the preparation of the order. Thus, limitation would from the date of delivery of the order i,e, 23-2-1999 and if the time period is commuted from the said period, the appeal is well within time. The learned counsel in support of his contention relied upon the following case-law.
1. Gul Muhammad v. Allah Ditta, PLD 1960 (W.P.) Lahore 443.
2. West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555.
12. ' In the former case, the following observations were made.
13. "The time, 'requisite' for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the Copies would be ready, or in giving no information at all. See Fouda Uraon v. Ganpat Ram (AIR 1920 Pat. 278). In Sheogopind v. Ablakhi (ILR 12 All..105), Mehmood, J, included within the 'time requisite' even the days which the applicant allowed to pass between the date when the estimate of costs was delivered to him and the date on which step was put in by him-eight days on the ground that 'the word requisite' makes it possible to require its meaning to be such that he should not lose the right of appeal either by reason of neglect of the officials who issue copies or those who are required to give notice when such copies are ready'. Unless on facts we could hold that the application required eight days for this purpose., we may not be prepared to go so far with Mehmood, J., but we respectfully agree that whatever period is necessary for doing of a thing of that kind will be included in the time requisite for obtaining a copy."
14. ' In the latter case, the Hon'ble Supreme Court held as under:-- "It has been submitted before us that the three days' delay that occurred in tiling the petition for special leave was due to the fact that the office of the High Court did not notify that the copy was ready for delivery as required under the Sindh Chief Court Rules and, therefore, limitation should be computed from the date of obtaining delivery of the copy. This view finds support from the decision of the High Court in the case of Gul Muhammad v. Allah Ditta (PLD 1960 Lah. 443). In the case under report it has been held that the time "requisite" for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be 'ready, or in giving no information at all. In any event, in my opinion, the delay has been satisthctorily explained and I would, accordingly condone the delay."
15. ' We have perused the record. It reveals that an application was submitted for copy of the Order on the same day i,e, 11-1-1999 and that the date of completion is mentioned as 30-1-1999 but there is nothing on record to show that the complainant was informed to collect copy on the day of completion i,e, 30-1-1999 nor any letter was sent to him regarding completion of the copy and it was not argued by Mr. Raja M. Afsar, Advocate that the complainant was asked about the collection of the copy on its delivery i,e, 30-1-1999 nor any letter was sent to him regarding completion of the copy; thus, relying upon.The case law (supra) we are not persuaded to concur with the arguments of Mr. Raja M. Afsar, Advocate and hold that the appeal has been tiled within time.
16. ' Regarding the next argument that the learned Advocate-General was the only Authorised Officer to file the appeal, the said objection was met with by the learned Assistant Advocate-General who has placed on record copy of the notification issued by Government of Balochistan on 22-7-1978 contents whereof are reproduced herinbelow:-- "GOVERNMENT OF BALOCHISTAN LAW DEPARTMENT. NOTIFICATION. Dated Quetta, the 22nd July, 1978.
17. ' No,5-3/74-Admn: Law/1629.--In exercise of the powers conferred by section 492 of the Criminal Procedure Code, 1898, the Government of Balochistan is pleased to declare that the Advocate- General and the Assistant Advocate-General shall act as ex-officio public prosecutors for the purpose of appeals against acquittals under section 417 of the Code. This Notification shall take effect from 1st of December, 1976.
18. BY ORDER OF GOVERNOR.
19. (Sd.)
20. ' Fakhruddin K. Shaikh Secretary Law Department."
21. ' After going through the said notification, Mr. Raja M. Afsar Advocate did not press his said argument. In view of the notification issued by Government of Balochistan we are inclined to hold that the appeal has been competently filed by Additional Advocate-General. Besides, the same was also filed on the directions of the learned Advocate-General. Thus, objection raised by Mr. Raja M. Afsar, Advocate is repelled.
22. ' Reverting to the merits of the case, Mr. Raja M. Afsar, Advocate for the respondent contended that- the appellant has been acquitted by the competent Court of jurisdiction and there is presumption of double innocence in his favour and the witness who was declared hostile cannot be recalled at this stage.
23. ' Mr. S.A.M. Qadri, Advocate in support of the appeal contended that the Court had allowed the application under section 540, Cr.P.C. For recalling P.W.2, Ghulam Qadir as he was a material witness in the said case. The learned counsel contended that since the said witness was very much present at the time of the incident and that the respondent was arrested after a period of two years, he correctly identified him in the identification parade held in presence of the Magistrate.
24. The learned counsel further contended that an affidavit has been filed by the said witness that he had been forced and threatened not to depose true facts in the Court. Thus, the learned Trial Court considering all the aspects of the case and affidavit of the witness allowed the application and the said witness was allowed to be cross-examined as a Court witness under section 540, Cr.P.C.
25. ' Mr. Ghulam Mustafa Mengal, Assistant Advocate-General appearing for the State also supported the contentions of Mr. S.A.M. Qadri, Advocate.
26. ' We have heard the learned counsel for the parties. It may be mentioned here that during the course of investigation, the statement of P.W.2 Ghulam Qadir was recorded under section 161, Cr.P.C. And even otherwise his presence at the place of incident has not been disputed. The respondent was arrested after a period of two years and identification parade was held wherein he corectly identified the respondent during the said period. When he appeared as a prosecution witness he resiled from his statement whereupon he was declared hostile by the District Attorney.
27. Letter on an application under section 540, Cr.P.C. Was filed for re-examination of the said witness wherein his affidavit was also annexed in which it is stated that he could not depose the true facts of the case due to threat and coercion on behalf of the respondent. Before dilating upon the said proposition, reference be made to section 540, Cr.P.C. Which reads as follows:-- "Power to summon material witness or examine persons present.
28. ' 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 re-examine 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."
29. Under this section, the Court has been empowered to recall and reexamine any person already examined as the very object of the said section is to enable the Court to get at the truth which is primary duty imposed upon it and if some fact or grounds are brought to the notice of the Court which would on reconsideration lead to discovery of the truth, then the Court should not knock-out such applications on mere technicalities. In the instant case, admittedly, presence of the witness at the place of incident has not been disputed inasmuch as identification parade was also not disputed wherein he rightly picked up the appellant. Being the sole eye-witness of the case and the respondent facing capital punishment, possibility cannot be ruled out that the said witness could be compelled not to give statement against the accused. Thus, factum regarding coercion and threat was brought to the notice of the Court. Thus in our considered opinion, while taking into consideration the affidavit of the witness, the Court rightly allowed the witness to be reexamined as a Court witness and both the parties were allowed to cross-examine him.
30. The very object of section 540, Cr.P.C. Is to enable the Court to ascertain the truth which is the primary duty of a Judge and such duty is performed irrespective of any technicalities in order to come to a just and proper conclusion. In this regard reliance is placed on Muhammad Azam v.
31. Muhammad Iqbal and others, PLD 1984 SC 95. In the said case while interpreting the provisions of section 540, Cr.P.C. Under similar conditions as in the case in hand, Hon'ble Mr. Justice Muhammad Afzal Zullah, Judge, as he then was, while dealing with the acquittal appeal, remanded the case for re-examination of the victim who was alleged to have been raped by the acquitted accused, on appeal. The following observations were made:-- "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. As has already been observed, the evidence in question relating to nikah was undoubtedly essential for the just decision of the case. In the circumstances of this case, the failure of the learned Judge to act under the said part of section 540, Cr.P.C. Has not only deprived the appellate Courts of essential material for the just decision of the appeal, but has only occasioned miscarriage of justice."
32. ' While illustrating the provisions of section 540, Cr.P.C, it was further observed as follows:-- "Learned trial Court, notwithstanding sufficient precedent cases, showing that in cases like the present one sometimes effort is made to create false evidence in support of defence plea of willing elopement and/or nikah with consent fake and false criminal complaints are filed in Magistrate's Courts so as to get the statement of the so-called complainant recorded on oath under section 200, C.P.C., failed to summon and admit all the vital evidence regarding this complaint. It was the duty of the trial Court to re-summon and re-examine the prosecutrix under the second part of section 540, Cr.P.C. As discussed above to discover the truth about this piece of evidence. This was also initial for the just decision of the case."
33. ' While discussing the powers of the Court under section 540, Cr.P.C. It was further observed as below:-- "The practice is nevertheless of such magnitude that it should put the Courts dealing with these matters on extreme care and caution for discovering the reality and truth. If ultimately a case is found of this type, then proper action should be launched (against persons involved with mala tide intentions or those who fail to act with due care and attention) in Court of law or in other forums including administrative.
34. ' The failure of the parties to produce sufficient evidence after introducing this subject should not have deterred the trial Court in performing the duty under the second part of section 540, Cr.P.C.
35. The trial Court has, as discussed above, failed to do so and therefore, on this account also the case merits remand for fresh trial . "
36. ' It has further been observed regarding filling of the gaps and lacunae by the prosecution, as under-- "It needs to he observed that for purpose of acting under section 540 Cr.P.C. (whether the first or second part) it is permissible to look into the material not formally admitted in evidence whether it is available in the record of the judicial tile or in the police file or elsewhere. The perusal of both these records would show that if evidence in connection with the items already noticed would have been properly entertained, the reasoning and decision of the learned two Courts might have been different.
37. ' Sometimes apprehension is expressed that any action by the trial Court under section 540, Criminal Procedure Code would amount to tilling the gaps and omissions in the version or evidence of one or the other party. It may straight away be observed that in so far as the second part of section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Courts shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v.
38. Lt.-Col. Muhammad Yousuf (PLD 1963 SC 51) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court-witness at an early stage, then not-withstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court-witness, it would not effect the power of the Court (under section 540, Cr.P.C.) to summon and examine the witness if of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case."
39. ' The aforesaid proposition regarding filling of the gaps has further been dealt with as under:-- "It would, be noticed that in the murder cases, the application of this rule, when the controversy is with regard to the filling or otherwise of a gap in the defence evidence by resort to section 540 and in case denial thereof would result in conviction and no other sentence than death would be likely to be awarded, it would not be possible to canvass that in observation of the so-called rule of avoidance to fill the gaps, evidence which is essential for the just decision of the case would not be admitted for this reason. It would not only be the negation of justice in a general sense, but would also contravene another rule namely that no party should suffer on account of mere technicalities.
40. The procedural law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fairplay."
41. ' Finally while dilating upon the powers of the Court under section 540, Cr.P.C. And scope of the said section, following observations were made:- "One more aspect needs to be clarified regarding the exercise of power under section 540, Cr.P.C. It is in addition to three main aspects already noticed namely: that, it is divided into two parts, one discretionary and the other obligatory; that the obligatory one is conditioned by the fact that it should appear to the Court to be essential for just decision of the case; and that the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of section 540, Cr.P.C. It relates to a proposition, converse to the so-called rules regarding filling of the gaps, namely that it should not be exercised so as to prejudice one or the other party. Enough has been said already that a situation falls under the second part of section 540 clearly and squarely, then the question of prejudice would not be entertainable. It is fallactious proposition that this power then should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.
42. ' Another clarification needs to be made that although in this case the power to summon additional evidence regarding nikah when exercised would seem to be filling a gap left in the defence evidence; and, if ultimately the additional evidence admitted supports the defence, it would not be possible to say that the process has not gone in aid of justice. Same would apply to the prosecution side because the law as contained in section 540, Cr.P.C. (second part) or for that matter in the relevant part of section 165, Evidence Act does not make any distinction between the prosecution and the defence.
43. ' Therefore, as a result of the above discussion, this appeal is accepted; the impugned Order dated 1-11-1999 is set aside and the case is remanded to the trial Court with direction that P.W.2 Ghulam Oadir be reexamined. Respondents shall appear before the trial Court; however, the question whether he be sent to judicial custody or be admitted to bail shall be decided by the trial Court. As this case has been pending for a long time, the trial Court is directed to dispose of the case expeditiously preferably within a period of three months.