1. Rahmat Hussain Jafferi, J.--The present appeal is directed against the judgment dated 6-10-2004 passed by the learned Additional Sessions Judge, Kandiaro (Mr. Muhammad Ishaque Arbani) by which the learned Judge convicted the appellants for offences punishable under Sections 302, 147, 149, 34, P.P.C. for various terms of imprisonment including death sentence to the appellant Habibullah.
2. At the very outset learned Advocate for the appellants has stated that the appellants/accused were prejudiced in their defence because the statements under Section 342, Cr.P.C. were not recorded in accordance with law as the learned trial Judge had not applied his mind while examining the evidence but simply reproduced the charge as Question No. 1. He has further stated that the mandatory provisions of Section 367, Cr.P.C. have also been violated as the learned trial Judge did not give any reason for arriving at the conclusion to prove the case against the appellants/accused.
3. Learned A.A.-G. has conceded the above position, therefore, he has stated that the case may be remanded to the trial Court for recording the statement of appellant and re-writing the judgment in accordance with the law.
4. 'We have given our due consideration to the arguments, gone through the material placed on record and found that a defect in recording A the statement under Section 342, Cr.P.C. of the appellants is curable unless it is shown that appellants have been prejudiced and a miscarriage of justice has occurred.
5. In the present case the charge was framed on 21-3-2004, it reads as under: "That on 24-7-2003 at 1745 hours, at the common road, village Pacca Ghanghra near house of Muhammad Hassan Ghanghro, Deh Ghangra, Taluka Kandiaro, you duly armed with deadly weapons viz. kalashnikov, shot guns, pistols, you committed the Qatl-e-amd of Imam Bakhsh the brother of the complainant Sultan Ahmed Mangrio, by firing at him, thereby committed offences punishable under Sections 302, 147, 149, 34, P.P.C. and within the cognizance of this Court'.
6. 'Learned trial Judge while recording the statements of the appellants put one question to appellants as main question and that question reads, as under: "Question No. 1.--You have heard the prosecution's evidence, it has come in evidence that on 24-7- 2003 at 1745 hours, at the common road, village Pacca Ghanghra near house of Muhammad Hassan Ghanghro, Deh Ghaghra, Taluka Kandiaro, you duly armed with deadly weapons viz. kalashnikov, shot guns. Pistols, committed Qatle-amd of Imam Bakhsh the brother of complainant Sultan Ahmed Mangrio by firing at him. What you to say?"
7. 'Comparison of the above question with the facts mentioned in the charge reveals that it is virtually reproduction of the charge as Question No. 1. From this fact alone it appears that the learned trial Judge did not go through the evidence while recording the statements under Section 342, Cr.P.C. so as to put all incriminating pieces of evidence to the appellants to obtain their explanation. Under Section 342, Cr.P.C. a duty is cast upon the trial Judge to put questions to the accused persons on the incriminating facts I which have come in the evidence enabling the accused persons to explain circumstances appearing on the evidence against them. Thus the Provisions of Section 342, Cr.P.C. have not been fully complied with.
8. 'It is not out of place to mention that a duty and obligation is also cast upon the defence counsel to take active part in the proceedings and assist the Court if he finds any irregularity or illegality being committed by the trial Court. In order to put check upon the proceedings, the appellate Court is required to examine and determine, while examining the question whether failure of justice has occurred due to error, omissions or irregularity in the proceedings, whether the objection could or should have been raised at an earlier stage in the proceedings as provided under explanation to Section C 537, Cr. P.C. The defect in recording the statement was such where the defence counsel could and should have raised the same before the trial Judge so that a proper guidance could have been extended to the Court. If such procedure would have adopted, then the defects could have not occurred in the proceedings. Silence on the part of the defence counsel clearly indicates that he did not find the defects such, which could have prejudiced the appellants in their defence.
9. Nevertheless, each case has to be examined from the facts and circumstances appearing thereunder and the di iect committed by the trial Court. This does not mean that the trial Court is given licence to commit such defects. It is the duty of the Judge to put all incriminating evidence to the accused to obtain his explanation. If he does not do so then the said piece of evidence cannot be used against the accused to convict him. If it is done then it is very dangerous thing to do so therefore the Judge should be very careful in recording such statement.
10. The major defect in the case is violation of mandatory Provisions of Section 367, Cr. P.0 under which the trial Judge is required to give reasons for decision arrived at by him after considering the various pieces of evidence and discussion on them with specific findings as to whether or not the same have been proved.
11. 'The perusal of the judgment reveals that the learned Judge had framed the points for determination. While discussing the involvement of the appellants in the commission of the crime, the impugned judgment starts from Page No. 7 to Page No. 15. Perusal of these pages reveals that from Page No. 7 to First paragraph of Page No. 14 he gave the facts given by the witnesses in examination-in-chief and cross-examination. In the second and third paragraphs of Page No. 14 he gave the submissions made by the defence counsel and state counsel. The last Paragraph of Page No. 14 and two Paragraphs of Page No. 15 are the reasons of the trial Court. Such paragraphs are as under: The relevant facts constituting the alleged offence are discussed as above. There is recovery of crime weapon and the report of Ballistic Expert is in positive.
12. The recovery of the empty bullets from the wardat is supported by the P.Ws of the incident.
13. Under these circumstances, this point is replied in affirmative'.
14. Bare reading of these Paragraphs reveals that the learned Judge has not assigned any reason for arriving at the decision given by him. There. is no discussion whatsoever with regard to the oral evidence and other pieces of evidence and on what pieces of evidence trial Judge has relied upon for convicting the appellants. It is pointed out that the trial Judge is obliged to thoroughly examine all the evidence adduced 'by the parties as well as their arguments and to appreciate the same in accordance with law. Conclusion drawn in respect of each point should be based on second ground and reasoning. It is pointed out that the judgment must be lucid, should contain discussion of evidence, reasons for the decision and not merely the conclusion. Thus a judgment written without discussion of evidence. of witnesses or the effect of corroborative evidence, if any, and without giving any reasons, is not a proper judgment. 'The above mentioned reasons cannot be termed as the reasons within the meaning of Section 367, Cr.P.C, therefore, the judgment suffers from illegality that is not curable under Section 537, Cr.P.C. therefore it is required to be set aside.
15. In view of the defect in writing the judgment, the case is being remanded to the trial Court, therefore, in fairness the trial Court is directed to record the statements of the appellants under Section 342, Cr.P.0 afresh by putting each and every incriminating piece of evidence against each accused separately with specific mention of part played by each of them and the question of sharing common object between them.
16. 'In the light of what has been discussed above, the impugned judgment is set aside. The case is remanded to the trial Court for retrial from the stage of recording the statements of the appellants under Section 342, Cr.P.0 and rewriting the judgment in accordance with the law.
17. The appeal is allowed in the above terms. Confirmation case is dismissed.
18. A copy of judgment be sent to Mr. Muhammad Ishaque Arbani, Additional Sessions Judge, wherever he is posted for his future guidance with advice and direction to be careful in future as in his other judgments similar defects have been found. A copy of judgment be sent to Registrar for keeping it in the personal file of Mr. Arbarni.