RAMZAN vs State Ss — 2023 PCrLJ 1489 QUETTA-HIGH-COURT-BALOCHISTAN

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RAMZAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Extra-judicial confession of accused---Accused were charged for committing murder of the son of complainant by slaughtering him with sharp edged weapon---Accused was neither nominated nor arrested nor was in custody of any investigating agency, when he made the extra-judicial confession, thus its veracity and voluntariness before the Jirga was required to be ascertained and to do so the Trial Court had ample powers under the relevant provision of law---However, such part of the evidence had not been put to the accused during trial, nor the same was played/visualized in the court, nor any copy of the same was provided to the accused persons, enabling them to admit or rebut the same---Jirga before which the extra-judicial confession was made consisted of about 200 persons, but the Investigating Officer had failed to associate any member of the Jirga, in presence of whom, the accused had made disclosure in respect of commission of the offence---Similarly, the Trial Court also failed to observe the necessity of the presence of Jirga members/participants as witnesses---Thus, keeping in view the circumstances of the case, the statements of Jirga members/ participants were essential for just decision of the case and summoning them as a witness would be justified under the second part of S. 540, Cr.P.C.---However, prior to summoning the Jirga members/ participants, the accused could not be deprived of his right of holding the copy of the video clip---Thus, without going into merit of the case and rendering any observation thereon, it would be appropriate to direct the Investigating Officer of the Crimes Branch at first instance to ensure provision of a CD of the visual clip/video record of the Jirga proceedings to the accused persons, and thereafter, the Trial court shall ensure summoning of at least two Jirga members/participants for confirmation of the constitution of Jirga, proceedings carried out therein and the disclosure made by the accused before the same, and by playing the video of the Jirga proceedings in the court shall also ensure a fair opportunity to the accused persons to cross-examine the witness(es) so produced---Since the recording was made by the brother of deceased and the memory card was produced by the recovery witness, therefore, said witnesses shall also be recalled and re-examined with opportunity to the accused persons to cross-examine them---Resultantly, the case was remanded to the Trial Court with direction to summon at least two witnesses/members/participants of the Jirga, in front of whom the accused had made disclosure, while the Investigating Officer of the case was directed to prepare CD of the video clip, provide the same to the accused persons and thereafter, the same be visualized/played in the Court in presence of brother of deceased, and opportunity of rebuttal/cross-examination be provided to the accused persons---Appeal was disposed of in the above terms.

RAMZAN vs State Ss — 2023 PCrLJ 1489 QUETTA-HIGH-COURT-BALOCHISTAN

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