Saqib Hussain Kiani Versus The State through Advocate General, Azad Jammu and Kashmir, Muzaffarabad

Sardar Muhammad Ejaz Khan, J .--- The captioned murder reference has been sent for confirmation of death sentence awarded to the convict-Saqib Hussain Kiani by the learned District Court of Criminal Jurisdiction, Haveli/Kahuta vide judgment dated 28.11.2019 whereas an appeal has been filed on behalf convict-appellants for setting-aside the aforesaid judgment while acquitting them of the charge. The convict-appellant, Saqib Hussain Kiani was convicted and awarded sentence in the following manner:- i) Under Section 302(ii) APC death sentence as Tazir; ii) under Section 458 APC 07 years rigorous imprisonment; iii) Under Section 342 APC 01 year simple imprisonment; iv) Under Section 15(2) AO four years rigorous imprisonment and fine of Rs.50,000/ -, in default of payment of fine, he shall further undergo 06 months simple imprisonment; v) Under Section 544-A, Cr.P. C., he shall pay the compensation amount of Rs.5,00,000/- to legal heirs of deceased, in default of payment of compensation, he shall further undergo 06 months simple imprisonment while he was extended the benefit of Section 382-B, Cr.P. C.;

Whereas, convict-appellant, Said Akbar Khan, was convicted and awarded sentence:- i) Under Section 458 APC 02 years simple imprisonment and fine of Rs.20,000/-, in default of payment of fine, he shall further undergo 02 months simple imprisonment; ii) Under Section 342 APC 06 months simple imprisonment by extending the benefit of Section 382-B, Cr.P.C.

Whereas, the other accused Faiz Akbar Khan, Mst. Ulfat Begum, Mst. Parveen Akhtar, Mst. Safdar Jan, Muhammad Shakeel Kiani, Qadeer Kiani and Sajjad Ahmed Kiani were acquitted of the charge by extending the benefit of doubt.

2. As common questions of facts and law are involved in the cases in hand, hence, the same were consolidated and are being decided through this single judgment.

3. Facts of the prosecution case as it glean from the FIR need not to be reiterated here for the sake of brevity because the same have sufficiently incorporated in the impugned judgment dated 28.11.2018. Suffice it to observe that on the instigation of complainant, Ghulam Nabi, a case illat No.55 of 2017 was lodged in offences under Sections 302/342, 147/148, 149, A.P.C. against the convict-appellants and others at Police Station Kahuta on 04.07.2017 and during investigation Sections 15(2) A.O, 458 APC were further added. After completion of investigation, the investigating agency submitted a report under Section 173 of Cr.P.C. before the learned District Court of Criminal Jurisdiction, Haveli/Kahuta, on 07.08.2017. The learned trial Court after usual proceedings concluded the matter and convicted and awarded sentence to the convict-appellants as mentioned in pre-paras vide impugned judgment dated 28.11.2019 and the murder reference was sent by the learned District Court of Criminal Jurisdiction, Haveli/Kahuta, for confirmation of death sentence awarded to the convict-Saqib Hussain Kiani, which is the subject-matter of murder reference and appeal.

4. Heard. Record perused.

5. The learned counsel for the convict-appellants raised objection that the learned trial Court has failed to observe the relevant provisions of law while allowing the application for producing secondary evidence while the evidence of P.W-20 has its vital importance in the case in hand in view of circumstances of the case and the learned trial Court without inviting objections from the other side accepted the said application, which is violation of Codal provisions of law, hence, the impugned judgment is not sustainable in the eye of law. When this situation was confronted to the learned A.A.G. and the learned counsel representing legal heirs of deceased, they have not opposed the objections raised by the learned counsel for the appellants.

6. It is apparent on the face of record that an autopsy of dead body the deceased, Afshan, was conducted by P.W-20 and convict-Said Akbar Khan was also medically examined by Dr. Nasir Munir CMO THQ Hospital Kahuta (P.W-20) while the convict-appellant, Saqib Hussain Kiani, was medically examined by Dr. Gohar Nazir CMO THQ Hospital Kahuta (P.W-21). During trial proceedings, P.W-20 was summoned for recording evidence vide order dated 06.03.2019 on which he has been reported that he left his assignment while it was ordered to furnish a fresh address of the said witness and a notice was issued to P.W-21 for the purpose vide order dated 20.03.2019 and on 28.03.2019 none of them has turned up then they were again summoned. On next date i.e. 10.04.2019, P.Ws 20 to 22 were again summoned and the case was posted to 23.01.2019 on which according to the report of process server, P.Ws 20 and 21 were reported to have not been found in the given address whereupon PP filed an application for producing secondary evidence and the learned trial Court without obtaining objections from the other side on the aforesaid application allowed the same on which Muhammad Khalid head clerk THQ Hospital was summoned and the case was posted to 07.05.2019 and on that date Muhammad Khalid Senior Clerk appeared before the Court and got recorded his statement as secondary evidence.

7. The contents of documents may be proved either by primary or by secondary evidence as provided under Article 72 of The Qanun-e-Shahadat, Order 1984. A document must be proved by primary evidence except in the conditions mentioned in Article 76 of Order Ibid. The point is yet to be determined that whether the learned trial Court was justified to allow the application for producing secondary evidence on the report of process server in which Dr. Nasir Munir CMO THQ Hospital Kahuta (P.W-20) and Dr. Gohar Nazir CMO THQ Hospital Kahuta (P.W21)- were alleged to have not been found on the given address. For proper appreciation of the matter, the Article 76 of The Qanun-e-Shahadat, Order 1984 is usefully reproduced as under:-

"76. Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--

(a) when the original is shown or appears to be in the possession or power of the person against when the document is sought to be proved, or of any person out of reach of, or not subject to, this process of the Court, or of any person legally bound to produce to and when, after the notice mentioned in Article 77 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it if proved or by his representative in interest;

(c) when the original as been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reasons not arising from his own default or neglect, produce it in reasonable time;

(d) when, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other moderns devices;

(e) when the original is of such a nature as not to be easily movable;

(f) when the original is a public document within the meaning of Article 85;

(g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;

(h) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;

(i) when an original documents forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible a secondary evidence.

In case (a), (c), (d) and (e), any secondary evidence of the contents of the document as admissible.

In case (b), the written admission is admissible.

In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document."

8. The secondary evidence is an exception to general rule and only meant for the purpose to cater a genuine need and hardship. It is not to be allowed in routine or without complying with the requirements mentioned under Articles 76 and 77 of Qanun-e-Shahadat Order, 1984. The contents of documents can only be proved through secondary evidence if the conditions mentioned under Article 76 are available which should be satisfied first, hence, it was enjoined upon the learned District Court of Criminal Jurisdiction, Haveli/Kahuta, to procure the attendance of the prosecution witnesses and adopt coercive method as provided under law whereas the learned trial Court had not mentioned reasons while allowing the application for producing secondary evidence vide order dated 23.04.2019.

9. It is evident from the record that the learned trial Court has neither adopted the procedure as provided under Chapter-VI of Cr.P.C. for summoning of P.Ws. 20 and 21 nor any valid reasons have whatsoever been explained that under what circumstances the aforesaid P.Ws could not appear before the trial Court rather the trial Court allowed the application simply on the report of process server wherein P.Ws 20 and 21 were reported to have not been found on the given addresses. For the sake of arguments, if it is assumed that the aforesaid P.Ws left the job from their assignments even then it cannot be held without ascertaining that there would be no chance to bring them into the witness box for recording their evidence or the said P.Ws are out of reach, hence, the learned trial Court has miserably failed to exercise its powers as provided under Chapter-VI of Cr.P.C. pertaining to summoning of aforesaid pivotal witnesses. Furthermore, the learned trial Court allowed the application for producing secondary evidence without observing the Codal provisions of law, hence, the impugned judgment is not maintainable on this ground alone.

10. For what has been discussed above, the instant appeal filed by the convict-appellants is accepted and the impugned judgment dated 28.11.2019 is hereby set-aside and the case is remanded back to the learned District Court of Criminal Jurisdiction, Haveli/Kahuta, to decide the matter afresh in the light of observations made hereinabove within a period of four months from the date of announcement of this judgment in accordance with law. The parties are directed to appear before the trial Court for the purpose on 13.01.2025.

JK/6/HC-AJK Appeal allowed.