1. ' RAHMAT HUSSAIN JAFFERI, J.---The brief facts giving rise to the present appeal are that on 14-3- 1999 Complainant Kishan Mal along with his family members including his son P.W. Mahesh Kumar was sleeping in his house situated in Salehpat Town after taking meals. At about 2-30 a.m. The complainant and other inmates of the house woke-up on some noise. On the electric bulb, they saw the door of the house was opened and a person armed with pistol was standing there. The complainant challenged the said person andthen caught hold of him. In the meantime three other culprits entered the house. They were armed with pistols. P.W. Mahesh Kumar tried to go outside the house to call the neighbours but one of the culprits fired at Mahesh Kumar, which hit him on his face, therefore he fell down on the ground. On the cries and fire-arm reports P.Ws. Choli Lal, Kandhoo Mal and others arrived at the place of incident. The culprit who was caught hold by the complainant caused butt injury on the person of the complainant and got himself released but his pistol, torch and handkerchief fell down on the ground. Thereafter the culprits ran away. The complainant went to the Mahesh Kumar where he found him lying injured with firearm injuries.
2. Leaving the P.Ws. At the place of incident, the complainant went to Police Station, Salehpat and lodged the repott at 4-00 a.m.
3. ' After registering the case police arrived at the scene of incident, sent the injured to hospital, secured the pistol, torch and handkerchief left by the culprit.
4. ' The appellants after their arrest were produced before the Magistrate for holding identification test where they were identified by complainant and Mahesh Kumar to be the culprits. The appellant Gulshan was produced before the Magistrate for recording his judicial confession where the Magistrate recorded his confession. After completing the investigation the appellants and co- accused were challaned in the Court of law.
5. ' The learned Ist Additional Sessions Judge, Sukkur tried the appellants and co-accused. The prosecution examined 9 P.Ws. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution and claimed to be innocent. They did not examine themselves on oath or lead any evidence in their defence. The learned trial Judge after considering the evidence and hearing the parties counsel acquitted co-accused Hub Ali, Shamsuddin and Mitho whereas convicted the appellants for offences punishable under sections 459, 337-A(i), 337-F(ii) and 324, P.P.C. And sentenced them to various terms of imprisonment and fine. The maximum term of imprisonment was 5 years with fine. The appellants were extended benefit of section 382-B, Cr.P.C. With order that all the sentences were to run concurrently under the impugned judgment dated 28-6-2003.
6. ' I have heard the appellants, A.A.-G. For the State and perused the record of this case very carefully. The latter has not supported the prosecution case.
7. ' After reading the evidence with the assistance of learned A.A.-G., I found that the case of the prosecution rests upon three pieces of evidence.
1. Ocular testimony.
2. Identification test.
3. Confession of appellant Gulshan.
8. ' I will take up the ocular testimony and identification parade together as they are connected with each other. In order to prove the said pieces of evidence the prosecution relied upon the evidence of complainant Kishan Mal, P.Ws. Mahesh Kumar, Shankar Lal and Magistrate Saleem Raza.
9. ' The evidence of Kishan Mal and Mahesh Kumar shows that they gave same details of the incident as mentioned in the earlier paragraph of the judgment. The complainant Kishan Mal made improvement in his statement by disclosing the names of appellants and stated that the appellant Gulshan was caught hold by him whereas appellant Hakim fired at P.W. Mahesh Kumar while P.W.
10. Mahesh Kumar did not name any of the appellants. The complainant in his statement further admitted that he knew appellant Gulshan, co-accused Mithal and Hub Ali prior to the incident since more than ten years. He further admitted that he did not give the names of the accused persons in the F.I.R. If the complainant knew appellants Gulshan and other co-accused then he could have easily given their names as culprits in the F.I.R. But he himself admitted that he did not give the names of the culprits in the F.I.R. However, the fact remains that the culprits were unknown to the P.Ws., therefore the prosecution had put the appellants in the identification test. Both the witnesses viz. Complainant Kishan Mal and Mahesh Kumar did not state that they went to the Court of Magistrate for identification of the appellants where the identification test was held and they identified the appellants to be the culprits of the crime. The entire case hinges upon the evidence of both these witnesses but they did not state such facts.
11. ' However, the prosecution examined P.W.6 Shankar Lal who acted as Mashir of the identification test of the appellants. He deposed that P.Ws. Has identified the appellants before the Magistrate.
12. The trial Court examined the Magistrate Saleem Raza after recording the statements of the accused persons under section 342, Cr.P.C. In which he deposed that he held the identification test in which P.Ws. Identified the appellants.
13. ' It is well-settled principle of law that evidence of identification test is not a substantive piece of evidence but it has value of corroboration to some substantive evidence. In the present case the substantive evidence is the evidence of complainant Kishan Mal and P.W. Mahesh Kumar. They did not state that they ever went to the Court of Magistrate where identification test was held and they picked out the appellants to be the culprits. As such substantive piece of evidence is missing in the present case, therefore, the corroborative piece of evidence has lost its importance because in the absence of such piece of evidence there is nothing left to be corroborated by any corroborative piece of evidence.
14. ' Apart from the above position I have gone through the statements of the appellants recorded under section 342, Cr.P.C. By the trial Court and found that the trial Court did not put the evidence of identification test to the appellants so as to obtain their explanation. It is well-settled principle of law that if a piece of evidence is not put to the accused in the statement under section 342, Cr.P.C.
15. Then the same cannot be used against him to convict him. Therefore, the evidence of identification test in the present circumstances of the case cannot be used against the appellants.
16. ' As regards the confession, the prosecution examined P.W.7 Magistrate Agha Khalid Mujtaba. His evidence reveals that on 1-4-1999 the police produced the appellant Gulshan for recording his confession. After completing the formalities he recorded the confession of the appellants in which he admitted his guilt.. The confession of the appellant is a substantive piece of evidence. It was required to have been put to the appellant in his statement recorded under section 342, Cr.P.C. But the trial Court did not do so and has destroyed a valuable piece of the evidence, which could have been used against appellant Gulshan to convict him.
17. ' I have also gone through the impugned judgment and find that the learned trial Judge did not discuss such piece of evidence in the judgment, probably for the reason that when no such evidence was put to the accused then it could not be used against him for that nobody is at fault except the Judge himself as a duty was cast upon him by the law that he should put all the incriminating pieces of evidence to the appellant in his statement recorded under section 342, Cr.P.C. But the learned Judge has failed to perform his duty diligently. As such a miscarriage of justice has occurred in this case.
18. ' Furthermore I have also gone through the statement of the appellants recorded under section 342, Cr.P.C. The same further shows that the learned Judge did not put the evidence of recovery of pistol, handkerchief and torch, which were left by the appellants at the scene of incident. As such a valuable piece of evidence was also destroyed and was not put by the trial Judge to the appellants so as to obtain their explanation. The said statements further reveal that the same were recorded in a slipshot manner, only one question with regard to the incident was asked from the appellants and that too is virtually reproduction of the charge. It is not expected from a Judicial Officer of the rank of Additional Sessions Judge to record the statement of the accused in the above manner, which shows gross negligence on the part of the Judge which has ultimately benefited the appellants.
19. ' It is also pointed out that after recording the statement of the appellants under section 342, Cr.P.C.
20. The prosecutor moved an application under section 540, Cr.P.C. To call the Magistrate Saleem Raza who held the identification test. Thereafter the Magistrate was called and his statement was recorded. After recording such statement, it was incumbent upon the trial Judge to have recorded the statements of the appellants again so as to put the said piece of identification test to the accused persons to obtain their explanation but after recording such evidence, the learned Judge failed to discharge his duty and to conduct himself in accordance with law. It appears that the Judge does not know the procedure of the recording of statements under section 342, Cr.P.C.
21. Therefore, he should make himself well-conversant with the said procedure so that in future he should not commit such mistake.
22. ' I have also gone through the impugned judgment and found that the learned judge framed the following three points for determination:-- ' Point No,
1. Whether on the night of 14-3-1999 at 2-30 a.m. The accused Hub Ali, Shamsuddin and Mitho committed lurking house trespass at the house of complainant Kashumal and caused injtiries to complainant Kashumal and P.W. Maheshkumar?
23. ' Point No,2. Whether on the same date, time and place accused Gulshan and Hakim Ali committed lurking house trespass and caused injuries to complainant Kashumal and P.W. Maheshkumar with the intention to commit their murder?
24. ' Point No,3. Whether the accused have committed the offence punishable under section 459, 324, 337-A(i), 337-A(iii), 337-F(iii), P . P . C . ?
25. ' As regards Point No,2 the impugned judgment shows that the same was appeared to have been discussed from Pages Nos. 5 to 8. From Page 5 to Ist four lines of Page No,8 the judgment shows that the evidence and cross-examination of the witnesses were mentioned and the finding of the said point has been given in just three lines as is clear from Ist Paragraph of Page 8 that reads as under:- "Under these circumstances it appears that prosecution has materialized this point with substantial evidence, therefore same\ stands disposed in affirmative."
26. ' I am aware of the fact that because of the above defects the case is required to be remanded to the trial Court but keeping in view the evidence available on record time spent in the trial as the case was registered in the year 1999, the appellants have been convicted and punishment of 5 years out of which they have served out the sentence of four and half years; if the case is remanded to the trial Court then it is not known when the same would be completed with the result that the appellants will be put, again in agony of protracted trial, which may take more years, therefore, in these circumstances the remand of the case would be an abuse of the process of law, as such I do not find it necessary to remand the case.
27. 'Finding the above defects in the prosecution case, the learned A.A.-G. Has also suggested that it is not a fit case for remand, therefore he has not supported the impugned judgment.
28. ' After considering the material available on record, I am of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt, therefore, they are entitled to the said benefit, which was accordingly given to them while passing short order.
29. ' From the above three lines it is clear that the same cannot be termed as reasons within the meaning of section 367, Cr.P.C., therefore, the learned Judge has violated the said provision of law.
30. No discussion whatsoever has been made by the learned Judge in the impugned judgment to arrive at the decision of proving the guilt. Thus the said judgment cannot be termed as judgment within the meaning of section 367, Cr.P.C.
31. ' Above are the reasons of my short order dated 15-8-2006 by which I had allowed this appeal., ' A copy of the judgment be sent to H Mr. Muhammad Ishaque Arbani, Additional District and Sessions Judge, wherever he is posted for his future guidance with an advice and direction to be careful in future. This is not the only case where he has committed such mistakes but in other cases also I found similar mistakes, therefore, copy of judgment be sent to the Registrar High Court of Sindh, Karachi for placing the same in the personal file of Mr. Arbani after placing the same before the Honourable Chief Justice for his kind perusal.
32. Appela allowed.