ABDUL MAJEED vs ABDUL SAMMAD Ss — 2025 PLD 1 SUPREME-COURT-AZAD-KASHMIR

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ABDUL MAJEED VS ABDUL SAMMAD Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 540---Qatl-i-amd, common intention---Recording statement of witness---Procedural lapse---Irregularity---Application for summoning the Sub-Divisional Magistrate for recording his statement was dismissed---Validity---A review of the record showed that the then Sub-Divisional Magistrate was listed as prosecution witness in the report under S. 173, Cr.P.C---Said witness recorded the statement of the accused-respondent under S. 164, Cr.P.C.---However, the Trial Court rejected the petitioner's application to record that witness's statement solely on the ground that the statement recorded under S. 164, Cr.P.C., was not submitted to the Court before recording of the respondent's statement under S. 342, Cr.P.C.---Such procedural lapse, although irregular, should not affect the case; it was an irregularity that the Trial Court might have overlooked especially given the significance of the witness's testimony, which could substantially make an impact on the case---Trial Court acknowledged the irregularity but mistakenly concluded that the order dated 23.06.2023 was not challenged by the prosecution, rendering it final and unreviewable---If the Court realized that the earlier order based on procedural irregularity, then the appropriate course would have been to consider the petitioner's application and act accordingly---Alternatively, the Trial Court had the authority under S. 540, Cr.P.C., to summon and examine any witnesses on its own---Trial Court itself could have re-summoned the witness, instead of adhering rigidly to the prior order, which remained in effect---Earlier order passed in the petitioner's absence and not communicated to him offered compelling grounds for reconsideration---Considering the gravity of case, which involved a murder and irreplaceable loss of life, it was imperative that the complainant party be afforded every opportunity to fully present its case---Fundamental right to a fair trial could not be sacrificed on the altar of procedural technicalities---It was evident from the provision of S. 164, Cr.P.C., that the onus to forward the statement or confession to the Trial Court rested with the Magistrate, a duty such was overlooked---Instead of addressing such critical procedural oversight, the Trial Court unjustly penalized the petitioner by rejecting the application to record the statement of witness---Such failure raised serious concerns, as the Magistrate neglected to comply with the statutory requirements under S. 164(2), Cr.P.C., which not only undermined the integrity of the legal process but also resulted in manifestly unjust consequents for the petitioner---High Court dismissed the revision petition on the grounds that petitioner failed to challenge the order of the Trial Court dated 23.06.2023, thereby allowing it to become final---Such dismissal occurred without the exercise of proper judicial discretion---Both Trial Court and the High Court erred in their judicial approach---Revision petition was allowed accordingly.

ABDUL MAJEED vs ABDUL SAMMAD Ss — 2025 PLD 1 SUPREME-COURT-AZAD-KASHMIR

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