This appeal is directed against the judgment dated 22.7.2004 passed by the learned Additional Sessions Judge, Khushab whereby appellant Muhammad Ayub son of Ghulam Rasool was convicted under Section 18 read with Section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Ordinance") and sentenced to undergo seven years R.I. and a fine of Rs, 10,000/-, in default thereof to further undergo S.I. for six months. The appellant was also directed to pay a sum of Rs, 20,000/- to Mst. Nazia Parveen, the victim, as compensation under Section 544-A Cr.P.C. Benefit of Section 382-B Cr.P.C. was, however, extended to the appellant.
2. In the instant case, the appellant was, on 9.6.2004, charged under Section 18 read with Section 10(3) of "the Ordinance", for allegedly attempting to commit zina with complainant's daughter namely, Mst. Nazia Parveen, aged about ten years. Since the appellant pleaded not guilty to the charge, at the trial, therefore, the prosecution in order to substantiate the allegation produced seven witnesses, whereafter, the appellant was examined under Section 342 Cr.P.C. He, however, failed to lead any evidence in his defence or to appear as his own witness in terms of Section 340(2) Cr.P.C.
4.After hearing the arguments of the learned counsel for the parties the learned trial Court convicted the appellant and sentenced him to the punishments as mentioned in the opening para hereof.
5.I have heard Ch. Imtiaz Muhammad Khan, Advocate, learned counsel for the appellant, Sardar Ahmad Abid, Advocate, learned counsel for the State and have also perused the entire record with their assistance, carefully.
6. It has been mainly, contended by the learned counsel for the appellant that since, at the trial, the Chemical Examiner's report, which has heavily contributed towards conviction of the appellant, was not put to the appellant in the course of his statement u/S. 342 Cr.P.C. and on account of the omission so made, he was materially prejudiced, therefore, the case may be remanded for rectification of the defect. It is further his case that since the statement of the appellant under Section 342 Cr.P.C. was not got signed from him, which was in patent violation of the mandatory requirement of law therefore, the impugned judgment is not sustainable. He placed reliance on the case of Muhammad Akram vs. The State 2001 P.Cr.LJ 1300 wherein, it was, by a Single Bench of the Sindh High Court held that omission to get statement recorded under Section 342 Cr.P.C. signed by the accused is an illegality not curable under Section 537 Cr.P.C.
7.Sardar Ahmad Abid, Advocate, learned counsel for the State has candidly conceded that the appellant in the course of his statement recorded under Section 342 Cr.P.C. was neither confronted with the Chemical Examiner's report nor his intention was invited thereto. He has also not disputed that statement, recorded under Section 342 Cr.P.C. of the appellant, was not got singed from him, however, stated that since no prejudice was shown to have been caused to the appellant on account of the omission so made, therefore, it was not fatal. He has placed reliance on the case of Liaquat Ali vs. The State, 2002 P.Cr.LJ 230 wherein, a Division Bench of Sindh High Court was pleased to hold that absence of signatures of a accused on his statement under Section 342 Cr.P.C. and the absence of certificate under Section 364(2) Cr.P.C. in the handwriting of the trial Judge is not ipso facto an illegality of such a nature as to vitiate the entire proceedings or make the proceedings from the stage of the recording of the statement of the accused onward unsustainable by law, necessitating remand of the case to the trial Court particularly when no prejudice is shown to have been caused to the accused on account thereof.
8.I have given my anxious consideration to the respective contentions of the learned counsel for the parties. It would be pertinent to mention here that Chemical Examiner's report i,e, Exh.PD was though duly exhibited, at the trial, and it was also taken into account by the learned trial Judge in recording conviction against the appellant yet, the record is silent that it was put to the appellant in the course of his statement recorded under Section 342 Cr.P.C. The following portion of the impugned judgment is explicit, in this regard: "Apart from the ocular evidence of the occurrence the medical evidence coming through P.W. 6 Dr. Farhat Zohra Malik who medically examined the girl P.W. 5 on 23.4.2004 at 11.30 a.m. in THQ Hospital Khushab and inter alia found her with mental status upset and as per report of the chemical examiner Exh.PD, the external swa bs of the girl P.W. 5 were stained with semen, while the internal vaginal swa bs were not containing any semen." It may be noted here that compliance with the provision of Section 342 of the Code of Criminal Procedure, in accordance with its terms, is essentials and departure therefrom is not permissible, if some prejudice is shown to have been caused to the accused. The use of word 'shall' in later part of sub-section (1) of Section 342 denotes that examination of the accused is mandatory and not discretionary. Rather, it is prescriptive in the sense that if, it is found by the trial Court that any circumstance appearing in evidence against the accused is likely contribute towards his conviction then the Court would not be competent to take the same into account without questioning him on that point. Perusal of Section 342(1), Cr.P.C. further leads to the inference that the object of the examination of the accused is, to give him an opportunity of explaining the circumstances, which may tend to incriminate him or are likely to influence' mind of the Judge in arriving at a conclusion adverse to him. Likewise, the addition of the words for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him" in Section 342(1) further suggest that examination of the accused is not a mere formality but a necessity. In my view, the above words have been thoughtfully inserted in the section to ensure that the principle contained in the Judicial Maxim "Audi Alterum Partum is fully complied with. It would also be worthwhile to mention here that Section 342, Cr.P.C. which for the purpose of ready reference and convenience is reproduced hereinbelow, has two parts. Under the first part the Court may put such questions to the accused which may be deemed appropriate and power thereunder is without any clog of time and stage whereas, under the second part examination of the accused which has of necessity, to be made on the close of 'prosecution evidence is a must because object is to point out salient points appearing in evidence against him and ask for his explanation. Section 342 Cr.P.C. reads as follows: "S. 342. Power to examine the accused. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence." It may also be noted here that in some cases though it has been held that an error or omission which fails within the category of 'curable irregularities' within the purview of Section 537, Cr.P.C. does not necessarily vitiate the trial, yet, in certain cases where, the accused is not questioned at all, or his attention, to an important piece of evidence, which implicates him, is not invited, the omission so made would be fatal. In this view I am fortified by the following reported judgments:-- (1)Munir Ahmad alias Munni v. The State (2001 SCM R 56).
(2)Asif Ali Zardari and another v. The State (PLD 2001 SC 568).
(3)Rattan Singh v. State of H.P. (AIR 1997 SC 768).
(4)Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622).
(5) State of Maharashtra v. Sukhdeo Singh (1992 Cr.LJ 3454 (SC)."
9. Adverting to the next contention of the learned counsel for the appellant that since statement recorded under Section 342 Cr.P.C. of the accused, by the trial Court, was not got signed from him, therefore, the omission was fatal, it may be pointed out here that bare perusal of Section 364(2)
Cr.P.C. makes it abundantly clear that signing of the statement under Section 342 Cr.P.C. by the accused is imperative as the provision contained in Section 364(2) Cr.P.C. is mandatory in nature and character. The trial Judge, therefore, while recording statement of the accused under Section 342 Cr.P.C., under the mandate of the above provision, has to, of necessity, obtain signatures of the accused thereon and also to certify under his own hand, in the manner prescribed, that examination of the accused was taken in his presence and hearing and that record contains full and true account of the statement made by the accused. In a number of judgments this view has been expressed that non-compliance of Section 364(2) Cr.P.C. is not a mere irregularity which can be cured. Reference, in this regard, in addition to the case relied upon by the learned counsel for the appellant, may also be usefully made to the following reported judgments:-- (i)Muhammad Kalam and another vs. The State 1988 PSC (Criminal) 1136.
(ii)Gul Jahan vs. The State 1988 MLD 288.
(iii)Raees Khan vs. The State 1991 P.Cr.L.J. 617.
(iv)Allah Rakhio and another vs. The State 2001 P.Cr.LJ 1959.
(v)Wahid Bakhsh Rana vs. The State 1989 P.Cr.L.J. 1591.
Further, in the case of Dadan alias Allah Dad vs. The State 2000 M LD 595, while relying on the cases of Mst. Sultana vs. The State reported as 1986 P.Cr.L.J. 1723 and Muhammad Inayat vs. The State 1983 P.Cr.L.J. 469, a Division Bench of Karachi High Court was pleased to hold that absence of signatures or thumb-impression of accused on a statement under Section 342 Cr.P.C. was fatal.
10. The upshot of the above discussion is that this appeal is accepted. The impugned judgment dated 22.7.2004 passed by the learned Additional Sessions Judge, Khushab is set aside and the case is remanded to the learned trial Court for its decision afresh from the stage of recording proper and legal statement of the appellant under Section 342 Cr.PC. with the direction that attention of the accused shall be invited to all the incriminating pieces of evidence placed on record and he be provided an opportunity to offer explanation with regard thereto. The appellant shall be at liberty to lead evidence in his defence or to appear himself as his own witness in terms of Section 340(2) Cr.P.C. if he chooses to do so.