Saifullah Khan vs Bilawar etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.865-P/2010

Date of hearing: 20.11.2014

Appellant (s) : Saifullah by Mr. Sikandar Sahibzada, Advocate.

Respondent(s) : Bilawar Khan by Mr. Jalaludddin Akbar-e-Azam Khan (Gara), Advocate and the State by Mian Arshad Jan AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Appellant

Saifullah was tried by learned Additional Sessions Judge-V, Kohat, and on conclusion of trial, vide impugned judgment dated 30.09.2010, he was convicted under section 302 (b) PPC and sentenced to undergo life imprisonment on two counts and to pay Rs.1,00,000/-, as compensation to LRs of the two deceased, within the meaning of S.544-A Cr.P.C. or in default thereof to undergo 6 months S.I. further, in case FIR No.403, dated 15.05.2009, registered under sections *M.Siraj Afridi P.S. D

302/324 PPC at Police Station Cantt, Kohat. Benefit of section 382-B Cr.P.C. was extended to him.

2.Through instant appeal, the appellant has questioned his conviction and sentence while complainant/petitioner Bilawar Khan has filed Cr.R.

No.190-P/2010, titled, “Bilawar Khan Vs Saifullah” seeking enhancement of sentence of the convict from life imprisonment to normal penalty of death.

3.As both the matters are stemming out of the same judgment of the learned Trial Court dated 30.09.2010, therefore, we are going to dispose of the same through this common/single judgment.

4.On 19.11.2014, learned counsel for the appellant while arguing the case at considerable length, raised a legal objection that by not providing a period of seven days, before charge-sheeting the accused/appellant, the learned Trial Court has violated the mandatory provisions of section 265-C Cr.P.C. which would vitiate the entire trial. Learned AAG and learned counsel for the complainant, when confronted with legal objection of the *M.Siraj Afridi P.S. D

former, they sought time to properly assist the court, which was accordingly provided, resultantly, the case was posted for today i.e. 20.11.2014.

5.Learned counsel for the appellant argued that non-compliance of the mandatory provisions of section 265-C Cr.P.C. in its letter and spirit, on one hand vitiate the whole trial, while on the other hand, it amounts to violation of fundamental rights of the appellant/accused guaranteed by Article 4 of the Constitution. He contended that under Article 10-A of the Constitution fair trial is the right of every citizen, but by wrong exercise in a haphazard manner, the learned Trial Court has deprived the appellant from this right, therefore, the trial of the appellant/accused being nullity in the eye of law, his conviction and sentence be set- aside and he be provided opportunity of fair trial.

6.Conversely, learned AAG assisted by learned counsel for the complainant contended that by providing copies of the relevant documents to the accused/appellant, the learned Trial Court has complied with the mandatory provisions of section 265-C Cr.P.C. and mere non-providing *M.Siraj Afridi P.S. D

of seven days interval inter-se the provisions of copies and framing of charge would not prejudice the

appellant/accused.

7.We have given our consideration to the

respective arguments advanced before us and perused the record thoroughly.

8.Record divulges that initially challan under section 512 Cr.P.C., was submitted against the appellant before the learned Trial Court, resultantly, on 09.09.2009, SW was summoned for recording his statement and the case was posted to 14.09.2009. It was on 12.09.2009, when the learned Trial Court received supplementary challan of the appellant, therefore, accused/appellant was directed to be summoned for the date already fixed i.e. 14.09.2009. Order sheet dated 14.09.2009, reveals that reportedly appellant was in Jail, therefore, he was directed to be requisitioned through Zamima Bey for 15.09.2014, but on the same date i.e. 14.09.2009, learned counsel for the appellant appeared, filed Wakalat nama and apprised the learned Trial Court that appellant has been brought by the local police before the *M.Siraj Afridi P.S. D

Court of learned Judicial Magistrate, hence, Zamima Bey issued for his production was cancelled, as such the appellant was produced before the learned Trial Court on the same date. Similarly, copies under section 265-C Cr.P.C.

were given him on the same date, and the case was posted for tomorrow i.e. 15.09.2009, for faming of charge, on which date, the appellant was charge sheeted to which he pleaded not guilty and claimed trial, therefore, prosecution was invited to lead its evidence.

9.It is not disputed before us that copies of the documents visualized by section 265-C Cr.P.C. had not been supplied to the accused/appellant. The controversy is that these had been supplied to the appellant on 14.09.2009 and he was then charge sheeted on the very next day i.e. 15.09.2009, while the trial could commence at least seven days after the supply of copies as reflecting from the bare reading of mandatory provisions of Section 265-C Cr.P.C. Section 265-B Cr.P.C. enunciates about procedure of the trial to be adopted by the High Courts *M.Siraj Afridi P.S. D

and Court of Sessions right from S.265-C to S.265-H Cr.P.C. of Chapter XXII-A of the Code of Criminal Procedure, 1898. For convenience, we deem it necessary to reproduce Sections 265-B and 265-C Cr.P.C.:- S.265-B. Procedure in cases triable by High Courts and Courts of Sessions. The following procedure shall be observed by the High Courts and the courts of Session in the trial of cases triable by the said Courts”.

S.265-C. Supply of statements and

documents to accused. (1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the comments of the trial, namely:

(a).....

(b).....

(c )......

(d).....

10.The thread bare perusal of sections 265-B and 265-C of the Code of Criminal Procedure reveals that obligation of the Court in both the sections is couched by word "shall" for observing the procedure, supplying the *M.Siraj Afridi P.S. D

copies and commencing the trial "not later than 7 days before the commencement of the trial". The languages of both the sections ibid, do not accept any ambiguity and it is imperative and mandatory for the Trial Court to strictly follow the procedure laid down therein for trial of the cases. The stage of charge under sections 265-D and 265-E would arise only when the copies are provided to the accused in accordance with the provisions of section 265-C Cr.P.C.

11.In the instant case, the learned Trial Court after supplying copies of the documents to the appellant, without waiting for seven days, charge sheeted him. It appears that the learned Trial Court was in an unnecessary haste, thereby flouting and violating the mandatory provisions of the Code of criminal Procedure.

The law makers have very wisely incorporated the above provisions in the Code of Criminal Procedure intending to ensure just, fair and safe trial of the accused. The purpose of section 265-C, Cr.P.C. is that accused could know *M.Siraj Afridi P.S. D

before he is sent up to stand trial in a charge punishable with death or imprisonment for life or other charges, as to what evidence he would have to face at the trial in order to take up a proper defence plea, besides the conduct and antecedents of the witnesses who are to be examined against him. Interval of seven days emerged in section 265-C Cr.P.C. is therefore of much significant, because it is meant to give accused sufficient time to study the allegations against him. Similarly, this interval would also enable the Trial Court, as well, to study the case and satisfy itself as to whether any case for trial is made out or not. It is not the mechanical process which is endeavoured to be achieved by law, to save time of Courts, and accused from being vexed and dragged in a case in which there is no ground for proceedings. Thus, non-compliance of section 265-C Cr.P.C. in its letter and spirit would vitiate the entire trial. The non-observance or breach of any of the provisions of law in itself amounts to prejudice the interest of the party who complains of its non-compliance.

Prejudice to the accused is to be inferred from every *M.Siraj Afridi P.S. D

breach of the provision of law given for the prosecution or benefit of the accused. The proposition would not change even if the accused had himself consented to such breach.

On these principles omission to comply with the provisions of section 265-C Cr.P.C. must be treated to have vitiated the conviction. Where the procedure adopted is illegal, the consent or waiver on the part of the accused cannot cure the defect under section 537, Cr.P.C. even though no prejudice is caused to him. The Federal Shariat Court in case reported as Mst. Nusrat Mai (Tahira Sultana) and others v. State (1997 MLD 2869), has held that provisions of section 265-C, Cr.P.C. are mandatory and non-compliance thereof vitiates the trial. The exercise adopted by the learned Trial Court in the present case is not a mere irregularity, but same is a serious illegality going against the fundamental principles of safe administration of justice. Albeit, case of non-supply of documents is not involved in this case, but perusal of the above authority reveals that provisions of section 265-C Cr.P.C., as so far as the right of accused is concerned, are *M.Siraj Afridi P.S. D

mandatory and any violation thereof would vitiate the trial.

Reliance in this regard can be placed on Hakeem Deen’s case (PLD 2006 SC Azad Kashmir 43), and case titled, “Abdul Jabbar Vs the State” (2011 YLR (Quetta) 2169 ) . In view of the above, the argument of the learned AAG and learned counsel for the complainant that no prejudice is caused to the accused is dispelled.

12.The learned Trial court by showing

unnecessary haste has deprived the appellant from his right of fair trial as guaranteed by Article 10-A of the Constitution of Islamic Republic of Pakistan which says that for determination of civil rights and obligations or in any criminal charge against a person, he shall be entitled to a fair trial and due process. We do agree that there is no cavil to the proposition that justice delayed is justice denied, but there is equally the other aspect of the matter that sometimes justice hurried is justice buried. It is said that an attempt by the Court to do justice is vanity. The Court, however, being charged with the duty of *M.Siraj Afridi P.S. D

administering justice is expected to maintain a balance, so that neither the matter is delayed unnecessarily nor it is disposed of in such a hasty manner so as to violate the basic principles of law. Again rough and ready justice is itself a negation of the Rule of Law. In Islam, even bare justice is not enough. It is to be tempered with mercy (ADL BIL AHSAN). A balance has, therefore, to be struck.

Fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution.

The test of fairness in a criminal trial must be judged from this dual point of view.

13.The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned.

There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it *M.Siraj Afridi P.S. D

may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz.

whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. Denial of a fair trial is as much injustice to the accused as society.

Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage- managed, tailored and partisan trial, as evident in the case in hand. It has been held by the apex court in “Sarfaraz Saleem’s case ( PLD 2014 SC 232), that constitution ensured that all individuals should enjoy equal protection of law and should be treated in accordance with law, which was their inalienable right. Every person for determination of his civil rights and obligations or in any *M.Siraj Afridi P.S. D

criminal charge against him should be entitled to fair trial and due process.

14.For the foregoing reasons, the trial of the appellant being in utter disregard of the fundamental rights of due process and fair trial as well as in violation of mandatory provisions of section 265-C Cr.P.C., is nullity in the eye of law, therefore, we while setting-aside the conviction and sentence of the appellant recorded by the learned Trial Court, remand the case to the learned Sessions Judge, Kohat with the direction to proceed with the trial in accordance with law, right from the stage of framing formal charge by providing an opportunity of not less than seven days to the accused before charge sheeting him and then to proceed onward with the Trial.

As appellant was in custody during trial, therefore, he shall remain as an under trial prisoner during his trial de novo.

The learned Trial Court shall conclude the trial as early as possible, but not later than four months, after receipt of the record. In case of failure in conclusion of the Trial, if *M.Siraj Afridi P.S. D

delay was not on the part of the accused/appellant, he would be at liberty to file bail petition before the learned Trial Court, which would be decided independently on its own merits.

15.With these observations this appeal stands disposed of accordingly while connected Criminal revision petition having become infructuous, stands dismissed as such. Office is directed to send the record to the learned Sessions Judge, Kohat within two days, without fail.

16.Additional Registrar (Judicial) of this court shall communicate copy of this judgment to the learned Trial Judges/Additional Sessions Judges, namely Mr. Kalim Arshad Khan and Rashida Bano, who dealt with trial of the accused/appellant, for their future guidance.

Announced.

JUDGE

JUDGE

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