MUHAMMAD TQBAL KHETAN Versus STATE
Appellant Muhammad Iqbal Khetana was tried by IIIrd Additional Sessions Judge (Central) Karachi, for the offence under section 302, .P.P.C. who found him guilty and vide judgment, dated 14‑2‑1990 sentenced him to imprisonment for life and to pay a fine of Rs.10,000 or in default to suffer R.I. for six months. The fine, if recovered, was ordered to be paid to legal heirs of deceased Muhammad Ashraf. By this appeal filed under section 410, Cr.P.C., the appellant has challenged his conviction and sentence.
2. Deceased Muhammad Ashraf was a petty contractor. He had a dispute with appellant Muhammad Iqbal Khetana over the construction of his house. On 11‑9‑1982 dereased Muhammad Ashraf went to his work from where he did not return. On 12‑9‑1982, Abdul Ghaffar, cousin of deceased Muhammad Ashraf came to complainant Muhammad Bashir, brother of deceased Muhammad Ashraf and informed him about the missing of deceased Muhammad Ashraf. Both of them then searched for deceased Muhammad Ashraf and their inquiry revealed that deceased Muhammad Ashraf was called by appellant to his house. Ultimately on 13‑9‑1982 complainant Muhammad Bashir, brother of deceased Muhammad Ashraf and others went to the house of appellant situated in New Karachi and found it locked. A foul smell was coming out from the said house. Complainant Muhammad Bashir then rushed to New Karachi P.S. where he lodged F.I.R. (Crime No.250 of 1982), raising suspicion against the appellant, Iftikhar Saleem and Yaseen (not sent up). The police broke open the lock of the house of appellant, where the dead body of deceased Muhammad Ashraf was found, whose throat was cut. During the course of investigation the appellant was arrested and after usual investigation he was sent up to stand trial for the murder of Muhammad Ashraf.
3. At the trial the appellant pleaded not guilty and wanted to be tried. The prosecution then examined complainant Muhammad Bashir (P.W.1), Muhammad Saleem (P.W.2), Hyder Ali Babo (P.W.3), Abdul Ghaffar (P.W.4), Muzaffar Khan P.C. (P.W.5), Hafiz Abdul Aleem (P.W.6), Abdul Salam (P.W.7), Sabir Hussain (P.W.8). Syed Athar Wahaj (P.W.9), Muhammad, Hanif (P.W.10), Ghulam Yaseen alias Shahji (P.W.11), Muhammad Akhtar A.S.I. (P.W.12), Dr. (Captain) Abdul Wajid (P.W.13), Muhammad Rafique (P.W.14), Abdul Malik Shah (P.W.15), Muhammad Akram S.H.O. (P.W.16), Ahsanullah (P.W.17) and Muhammad Ameen (P.W.18).
4. In his statement recorded under section 342, Cr.P.C. the appellant has denied each and every allegation put to him. He, however, did not step into the witness‑box for his statement under section 340(2), Cr.P.C. No witness was also examined in defence.
5. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under section 302, P.P.C., and convicted him accordingly.
6. The case of the prosecution is based on circumstantial evidence alone and one of the most important factors leading to the conviction of the appellant was that the dead body of deceased Muhammad Ashraf was found lying in the house of appellant which was locked from outside. The appellant has, however, disputed the ownership of this house in his statement recorded under section 342, Cr.P.C., in the following words:‑‑‑
"No Sir. I do not know about this as I have no house in New Abadi."
In order to meet this situation the learned APP moved an application under section 540, Cr.P.C. for calling the Bank official to produce the title documents of this house which were in the custody of Muslim Commercial Bank, as the house was mortgaged by the appellant. This application was, however, rejected by the trial Court vide order, dated 7‑5‑1988, as according to learned Additional Sessions Judge it was an attempt to cover up the lacuna. Complainant Muhammad Bashir challenged this order before this Court in Criminal Revision No.32 of 1988, which too was dismissed on 19‑2‑1989. However, during the pendency of the case another application of the same nature was moved. by Advocate for complainant which was allowed on 31‑8‑1989 and Muhammad Ameen (P.W.18) was examined in the absence of Advocate for accused/appellant and without recording further statement of appellant under section 342, Cr.P.C. he was convicted on the basis of the evidence already recorded and recorded on 17‑9‑1989 in the absence of his Advocate. It was in these circumstances that the learned counsel for the appellant has contended that the trial has vitiated for the following reasons:‑‑‑
(i) That the second application purported to have been' made under section 540, Cr.P.C. on the same ground was not maintainable after the earlier one was dismissed by the trial Court on 7‑5‑1988, which order was maintained by this Court in Criminal Revision No.32 of 1988, decided on 19‑2‑1989. '
(ii) That ‑ the second application was moved by the Advocate for complainant who had no locus standi to file such application.
(iii) That the second application for calling the witness/document was heard and disposed of in the absence of Advocate for accused/appellant.
(iv) That on 17‑9‑1989 the case proceeded against the appellant in the absence of his Advocate when the evidence of Muhammad Ameen (P.W.18), a Bank official was recorded, which evidence was relied upon by the trial Court while convicting the appellant.
(v) That no opportunity was provided to appellant to explain about this additional piece of evidence collected at the back of his Advocate, by recording his further statement under section 342, Cr.P.C.
7. Section 540, Cr.P.C. is intended to enable the Court to get at the truth, as the ascertainment of truth is the primary duty imposed upon a Judge and he is not absolved from attempting to perform that duty merely because of technicalities. A subsequent application after the rejection of the earlier one is competent where new or different grounds are shown and the earlier decision is amenable to reconsideration upon discovery or availability of fresh material. Such application can certainly be moved on the ground that a particular circumstance has either not been brought to the notice of the Court or it has not been considered by it and that such evidence will help the Court in arriving to a just and proper decision.
8. Coming now to the second question whether the Advocate for complainant has got a locus stanch to move the application under section 540, Cr.P.C., all that can be said is that where the prosecution is conducted by a Public Prosecutor and a counsel is also engaged by the 'complainant, such counsel has to act in accordance with the directions of the Public Prosecutor. Since I propose to remand this case with certain directions, I leave this question to be decided by the trial Court.
9. With regard to third contention Mr, M.A. Kazi, learned counsel for the appellant has made a statement that although the order, dated 31‑8‑1989 recites that he was heard when the second application under section 540, Cr.P.C. was decided, he was in fact not heard and the application was decided without notice to him at his back. He has specifically referred to order sheet, dated 31‑8‑1989, which reads as follows:‑‑‑
"Accused is present on bail. Application by APP for recalling certain documents. Heard arguments. Order passed on application, allowed Write letter to Manager MCB Aadnmjee House, Karachi, to produce title documents of H. No.L‑856, Sector 5‑A/2 on or before 16‑9‑.1989. Accused directed to attend on 16‑9‑1989."
A bare perusal of the above order makes it clear that the counsel for accused/appellant was not present when the said application was heard and disposed of. It may also be added that the application dated 16‑8‑1989, which was disposed of on 31‑8‑1989 was not made by APP as indicated in the above order‑sheet, but it was filed by Advocate for complainant. In these circumstances, the grievance of learned counsel for the appellant to the effect that the said application was heard and disposed of at his back appears to be correct.
10. The fourth contention, urged by learned counsel for the appellant has great importance. Admittedly on 17‑9‑1989 the defence Advocate was not present when the evidence of Muhammad Ameen, an officer of Muslim Commercial Bank was recorded. Mr. Shahabuddin Memon, learned counsel for the complainant has conceded to this factual position. The evidence of Muhammad Ameen (P.W.18) was found material, which resulted into the conviction of the appellant. The procedure adopted by learned Additional Sessions Judge was in complete disregard of the provisions contained in ' Chapter VII, Part 1, of the Federal Capital and Sindh Courts Criminal Circulars, which provides that an Advocate at State expense is to be appointed on behalf of accused in a case inviting capital punishment (like the one under consideration), if the accused is unable to do so. The object bead these statutory rules is that a murder case should not proceed in the absence of an Advocate for accused. The trial Court had two options on 17‑9‑1989 either to postpone the case or to appoint some advocate for accused/appellant at State expense, but that process too required time. If any authority is needed the cases of Abdul Aziz and another v. The State reported in 1984 PCr.LJ 530,. Niaz Ahmad v. The State reported in 1984 PCr.LJ 1054 and Muhammad Waqar v. The State reported in 1991 PCr.LJ 197, may be cited with advantage. There is, therefore, good deal of force in the contention of learned counsel for the appellant when he states that the trial of the appellant has vitiated due to the above illegality committed by the trial Court.
11. Finally, there survives the question, whether after, recording the additional evidence, further statement of the appellant under section 342, Cr.P.C., was necessary. The examination of an accused under section 342, Cr.P.C. is intended to afford him an opportunity to explain all circumstances appearing in the evidence against him. The opportunity must be real and adequate and the attention of the accused must be drawn to every inculpatory material so to enable him to explain it. In the present case the accused/appellant had denied the ownership of the house in which the dead body of Muhammad Ashraf was found. Muhammad Ameen (P.W,18) a Bank officer who was examined in the absence of 'defence Advocate produced relevant record to prove that the said house belonged to the appellant. No opportunity was, however, provided to accused/appella4t to explain about this important piece of evidence produced after his statement under section 342, Cr.P.C. was recorded, which was the basic fairness of a criminal trial.
12. Thus from whatever point of view the matter may be looked at, it is obvious that the trial of the appellant has vitiated due to above‑mentioned illegalities committed by the trial Court. The preliminary objection taken by learned counsel for the appellant seems to be well founded and must prevail. As a result of this finding the conviction recorded and the sentence awarded to appellant are set aside and the case is remanded for retrial from the stage the above‑mentioned illegalities were committed, with the following directions:‑‑‑
(i) That .the application dated 16‑8‑1989, purported to have been made under section 540, Cr.P.C., shall be decided afresh after affording an opportunity of hearing to counsel for the respective parties. .
(ii) That the evidence of any new witness, if recorded shall be recorded in presence of defence Advocate.
(iii) That further statement of accused/appellant shall be recorded under section 342, Cr.P.C. inviting his attention to fresh evidence, if brought on record.
(iv) That the statement of accused/appellant under section 340(2), Cr.P.C. and the evidence of witnesses cited by him in defence shall be recorded, if so desired, in case fresh evidence against him is brought on record.
13. The case shall go to learned Sessions Judge (Central), Karachi for. retrial as the learned IIIrd Additional Sessions Judge (Central), Karachi, has already formed the opinion. The case has become old and the appellant is in custody. It will, therefore, be appreciated if the case is decided within three months from the receipt of the R & P.
14. In the result the appeal is allowed to the above limited extent.
N.H.Q./M‑1576/K Case remanded.