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Criminal Appeal No. 135/L of 1987, decided on 12th November, 1987.
---S. 10(3)--Prejudice to accused--Trial in undue haste--Accused allegedly molesting and raping his own daughter--Challan submitted without result of Chemical Examiner--All prosecution evidence was recorded on the day accused was summoned to answer charge--No list of defence witnesses nor names given by accused in his statement under S.342, Cr.P.C. yet trial Court summoning and examining as many as five defence witnesses on following day--Order of conviction passed on same day--Accused not defended by any counsel nor any opportunity afforded to him--Conduct of trial Court, held, was violative of principle that justice should not only be administered but should also be seen to be done--Trial was held in undue haste causing prejudice to accused resulting in miscarriage of justice--Conviction and sentence set aside, case remanded for retrial in circumstances.-[Prejudice].
Muhammad Akmal Salimi for Appellant.
Altaf Muhammad Khan for the State.
Date of hearing: 12th November, 1987.
.-- This appeal is directed against the order of conviction recorded by Ch. Abdul Sattar, Additional Sessions Judge, Vehari, passed on 14-4-1987, whereby the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 25 years" R.I. thirty stripes and a fine of rupees twenty thousand or in default to undergo four years" R.I.
2. The allegations against the appellant are that he had molested and raped his own daughter Noreen Anjum on 15-3-1987 in his house situated within the jurisdiction of Police Station City, Burewala, District Vehari.
3. One Muhammad Mushtaq, the maternal-uncle of Mst.Noreen Anjum made a statement before Nazir Ahmad, A.S.I. on 15-3-1987 at 3-45 p.m. on the basis of which the formal F.I.R. was recorded by Nur Muhammad, Moharrar. In view of the order which we intend to pass in this case the facts and the evidence is unnecessary to be mentioned in detail because we find that the trial has been conducted in undue haste which has caused prejudice to the accused/ appellant and offends against the fundamental principle of law.
4. The material facts apparent on the record are that the challan in this case was put on 31-3-1987. The accused was summoned to answer the charge for 13-4-1987 and after the plea was recorded all the prosecution witnesses numbering 13 were examined on 13-4-1987. On the next date (14-4-1987) though there is no list of defence. A witnesses nor the names of the defence witnesses were stated by the accused in his statement recorded under section 342, Cr.P.C. the trial Court has summoned as many as 5 witnesses whose statements were recorded and the same day i.e. 14-4-1987 the order of conviction was recorded and the sentence as mentioned above was passed.
5. Mr. Akmal Salimi, the learned counsel for the appellant has urged before us that the accused has not been provided proper opportunity to defend himself in that on the very first day i.e. 13-4-1987. The accused was required to answer the charge and was not defended by any counsel. Mr. Akmal Salimi has produced before us an application addressed by Ch. Muhammad Hussain, Advocate in which the learned Advocate has complained that on account of the wide publicity caused in this case in the Ilaqa and the general feeling which had been aroused therefrom it was not possible for him to face the public and he could not properly discharge his professional duty. This application is attested by the President of the District Bar Association, Vehari. Another important aspect of the case is that the police had submitted the challan on 31-3-1987 and by this time ever the result of the sealed parcel sent to the Chemical Examiner was not: received either by the police or the Court. We are of the opinion that the contention of the learned counsel for the appellant cannot be easily brushed aside. It is well-known principle of law that the justice should not only be administered but should be seen that it is being done. We are constrained to hold that the conduct of Ch. Abdul Sattar, the learned Additional Sessions Judge has violated this principle. We have no hesitation in saying that the trial has been conducted in a way which has caused prejudice to the accused and miscarriage of justice has taken place. We accordingly set aside the impugned order the conviction and sentences are set aside and the case is remanded for fresh trial. The case shall be tried by a Judge other than Ch. Abdul Sattar, the Additional Sessions Judge. The trial Court would require the accused appellant to engage a counsel of his own choice and in case none from the district is available he would be given sufficient time to engage a counsel from some other district. The accused would be at liberty to move an application for bail before the trial Court who would decide the same on its merit.
6. It is expected that the trial would be concluded within three months from the receipt of the case papers from this Court. The relevant record shall be transmitted to the learned Sessions Judge, Vehari, immediately.
S.A./368/F.Sh. Case remanded.
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