Anas Khalil vs state etc

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.399-P/2015 Date of hearing: ________________________________ Appellant (s) : ____________________________________ Respondent (s) : ___________________________________

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This

common judgment shall govern the instant appeal filed by appellant Anas Khalil and connected Cr.A. No.411-P/2015, filed by appellant Aurangzeb, as both are arising out from one and the same judgment of the learned Trial Court/ Additional Sessions Judge-XI, Peshawar, dated 24.06.2015, whereby the appellants have been convicted and sentenced under section 365 PPC, to undergo 05 years rigorous imprisonment and to pay a fine of Rs.50,000/- each or in default thereof to undergo 06 months S.I.

further. They have further been convicted and sentenced under section 412 PPC to undergo 08 years R.I. and to pay a fine of Rs.50,000/- or in default thereof to undergo 06 months S.I. further. The sentences have been directed to run concurrently and benefit of S.382-B Cr.P.C. has been extended to them.

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2.According to report of complainant Ziarat Gul, his son Daud Shah who used to ply a motorcar No.5792-LEC as a taxi, on 26.09.2012, left his house in a motorcar and did not return home till 02.10.2012; that he tried to contact him on cell phone, but it was not responding, so he made report about his missing in shape of Daily Diary No.49 dated 02.10.2012, on the basis of which inquiry under section 156 (3) Cr.P.C. was underway when in the meantime, his dead body was found and recovered by the police in Chakwal. According to complainant one Ihsanullah told him about presence of his deceased son in Bazaar with Anas and Aurangzeb (appellants herein) on 26.09.2012 at 0715 hours and that the deceased told him about his visit to Chakwal with the appellants on a special trip. Later on, complainant recorded his statement under section 164 Cr.P.C., wherein he specifically charged the appellants for abduction of his son, snatching motorcar from him and committing his murder in District Chakwal.

3.The accused/appellants were arrested, tried by the learned Trial Court under sections 365 and 412 PPC only and ultimately convicted and sentenced as mentioned above, hence, these appeals.

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4.Without dilating upon the merits of the case in light of the available evidence lest it may prejudice the case of either side, suffice it to say that trial in the case has not been conducted in accordance with the law.

Admittedly, the initial incident of missing/ abduction of Daud Shah deceased allegedly occurred first, regarding which father of the deceased lodged report in Police Station Faqir Abad Peshawar, whereafter in continuation of the first episode of the incident, the second episode of murder of the deceased was done in Chakwal, where a separate FIR No.126 dated 23.10.2012 under sections 302/392/34 PPC has been registered in Police Station Neela District Chakwal. Similarly, in connection with recovery of the weapon of offence another FIR No.146 dated 24.12.2012 under section 13 Arms Ordinance, Police Station Neela Chakwal, has also been registered against the present appellants.

5.In his statement under section 164 Cr.P.C., complainant Ziarat Gul has directly charged the appellants for abduction of his deceased son from Peshawar, forcibly snatching his motorcar and committing his murder in Chakwal Punjab. The learned Trial Court in the charge sheet confronted the appellants not only with the accusation of abduction of the deceased but also for his *M.Siraj Afridi P.S. D

murder but did not frame any charge under section 302 PPC as no record of the murder case was made available on file by the Investigating Officer of the instant case. It was the duty of the I.O. to collect all the evidence right from the first episode of the incident of abduction/ missing of the deceased till recovery of his dead body or at least applied for transfer of the murder case and the case of recovery of crime weapon for joint trial before the learned Trial Court. Similarly, the learned Trial Court has also not taken pain of the matter and straightaway proceeded with the trial of the appellants qua the first episode of the incident squarely over sighting the mandate of S.235 Cr.P.C., which enunciate that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. As stated earlier, the deceased was first abducted from Peshawar for which both the appellants were charged and thereafter his dead body was recovered in Chakwal where a separate FIR has been registered against the appellants for the murder of the deceased. Thus, the second episode of the murder of the deceased was in continuation of the first episode of his abduction. Similarly, the registration of another FIR under Arms Ordinance in *M.Siraj Afridi P.S. D

Chakwal is in continuation of the second episode of the occurrence, therefore, the proper course in light of S.235 Cr.P.C. was that the appellants should have been tried at one trial for each offence.

6.When confronted with the peculiar facts and circumstances of the incident and the relevant law on the subject, learned counsel for the parties and learned AAG for the State fairly and frankly conceded the illegality and irregularity conducted by the Investigating Officer of the case as well as by the learned Trial Court and requested for trial denovo by requisitioning/ transferring the cases registered in Chakwal to the learned Trial Court.

7.The request being legal and genuine is

acceded to. Resultantly, the conviction and sentences of the appellants recorded by the learned Trial Court vide impugned judgment are set aside. The case is remanded to the learned Trial Court for trial denovo in light of the above observations. This Court while exercising its power under section 185 (2) Cr.P.C., direct discontinuation of proceedings in cases registered in Chakwal against the appellants. Senior Superintendent of Police (Investigation), Director General Prosecution, and Secretary Home Department, Khyber Pakhtunkhwa, Peshawar are directed to do the needful in accordance with law for transfer of the *M.Siraj Afridi P.S. D

cases from Chakwal to the learned Trial Court at Peshawar, whereafter the learned Trial Court shall proceed with the trial a fresh. Office is directed to send the record to the learned Trial Court, within two days, without fail.

Announced

JUDGE

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