' AZIZULLAH M. MEMON, J.---Appellants, Muhammad Ilyas, Abdul Karim, Altaf Hussain and Faqir Muhammad stand convicted by the Court of learned First Additional Sessions Judge, Karachi East in Sessions Case No.252 of 2001 for committing offences punishable under section 395, P.P.C., 353/34, P.P.C. And 324/34, P.P.C. Vide judgment, dated 15th March, 2005 and sentenced to suffer imprisonment as under:--
(a) For committing dacoity, an offence punishable under section 395, P.P.C. Each accused Muhammad Ilyas son of Muhammad Umar, Abdul Karim son of Sakhawat Hussain, Altaf Hussain son of Mir Dad and Faqir Muhammad alias Majeed son of Muhammad Tayab are awarded R.I. For 10(ten) years and to pay fine of Rs,50,000 (fifty thousand) each or in case of default in payment of fine, to undergo R.I. For 6(six) months more;
(b) For making assault and criminal force on the police personnel, being public servants, in order to deter them from performing their duties, an offence punishable under section 353 read with section 34, P.P.C., each accused Muhammad Ilyas son of Muhammad Umar, Abdul Karim son of Sakhawat Hussain, Altaf Hussain son of Mir Dad and Faqir Muhammad alias Majeed son of Muhammad Tayab are sentenced to undergo R.I. For 2 (two) years and to pay fine of Rs,10,000 (ten thousand) each or in case of default to suffer R.I. For 6(six) months more;
(c) For making murderous assault on the police party with intention to commit their murder, an offence punishable under section 324 P.P.C. Read with section 34, P.P.C., each accused Muhammad Ilyas son of Muhammad Umar, Abdul Karim son of Sakhawat Hussain, Altaf Hussain son of Mir Dad and Faqir Muhammad alias Majeed son of Muhammad Tayab are awarded R.I. For 7 (seven) years and to pay fine of Rs,30,000 (thirty thousand) each or in default to pay fine, each of them shall have to suffer R.I. For 6(six) months more."
' All the sentences are directed to run concurrently and benefit of section 382-B, Cr.P.C. Is also extended to the accused persons. The amount of fine, imposed upon the accused persons, if realized, be deposited in the Government Treasury."
2. The accused/appellants have filed this criminal appeal against the said judgment and convictions.
3. Heard Mr. Abdul Razzak, Advocate for the accused/appellants and Mr. Sardaruddin Qureshi, Advocate for the State; also perused the paper book pertaining to the trial proceedings of the case in hand.
4. Prosecution story, briefly, is as under-
5. Complainant Dr. Iqbal Motiwala resided in House No.416-C, C.P. Berar Housing Society, Karachi; he was in his house at 4.15 p.m. On 21-2-2001, when bell call was given from outside of the house, he inquired as to who there was while standing inside in his own house, reply came from outside that staff of KESC wanted to check the electricity meter reading; hence he opened the outer door, when all of a sudden four culprits trespassed in the first floor premises of his house, started threatening him with dire consequences to hand over the keys of the house to them and in case of his failure to kill him; the culprits then kept him hostage along with other members of the house by show of fire arms and started collecting valuable properties comprising of ornaments, etc; the complainant found out an opportunity to rush out of the house and went to police station Bahadurabad and narrated the said facts to S.H.O. Mobin, who immediately proceeded to the place of incident, together with other police staff, including S.-I. Sultan, S.-I. Farooq and A.S.-I. Muhammad Amin; they reached the house of the complainant and encircled it, and then warned the culprits to surrender, who were still inside the complainant's house searching for valuables, more and more. The culprits, instead of surrendering, fired towards the police party, who also responded in the very same manner and, in consequence of such an encounter, accused Altaf Hussain and Faqir Muhammad voluntarily surrendered before the police party while being on the roof top of the adjacent house, and while being chased by the police party; accused Muhammad Ilays and Abdul Karim surrendered themselves at house No.414; their personal search were made and recoveries of the stolen properties were respectively made from their possession.
6. On completion of the investigation, the accused/appellants were sent to the Court for trial. As stated above, the learned trim Court found the appellants guilty of the said offences and convicted and sentenced them as reproduced above.
7. The proceedings taken by the trial Court having been scrutinized, it is found out that the 342, Cr.P.C. Statements of the accused/appellant were not properly recorded inasmuch as the recoveries allegedly made from their respective possession were not put to them therein, and the facts and circumstances of the case thereby are indicative of the fact that the accused/appellants were prejudiced by such lacuna in the trial proceedings.
8. In Asif Ali Zardari v. The State (PLD 2001 SC 568) followings observations were recorded by Hon'ble Supreme Court at page 596:-- "(37) The mode and manner in which the statement of Ms. Benazir Bhutto under section 342, Cr.P.C.
Was recorded leaves no doubt in our mind that the provisions of section 342, Cr.P.C. Were abused with a view to reach a hasty conclusion. The underlying object of section 342, Cr.P.C. Is to enable an accused to explain the incriminating circumstances in the prosecution evidence appearing against him. In our view, this is the most valuable right being sacrosanct principle of natural justice.
No doubt, the attendance of Ms. Benazir Bhutto appellant had been exempted but as she was available in Pakistan, it was incumbent upon the learned Judges to have summoned her for recording her statement. The features of the prosecution case also necessitated her examination in person. To our utter dismay the learned Judges opted not to do so and considering the compliance of the provisions of law sufficient by recording the statement of her counsel who according to the learned counsel for the appellant was not authorized to speak on her behalf.
According to Ms. Benazir Bhutto appellant, when she came to know that her statement under section 342, Cr.P.C. Had been got recordedthrough her counsel she at once made an application to supplement her statement under section 342, Cr.P.C. And made a supplementary statement in writing containing answers to all the questions put to her counsel and requested the Court to treat the statement in writing as her statement under section 342, Cr.P.C. But queerly enough her said statement was ignored. The circumstance is also a link in the bias."
9. Hon'ble Supreme Court was pleased to give guidelines for recording the statement of accused under section 342, Cr.P.C. In Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879), the mandate so pronounced is to the effect that proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye- witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C. With statement, if made, under section 340(2), Cr.P.C.; further if the statement under section 342, Cr.P.C. Is exculpatory then he must be acquitted and if the same is believed as a whole, and it constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only.
10. Under the circumstances, the ends of justice demand that the case be remanded to the trial Court to make proper compliance as directed by the relevant provisions of law as quoted above.
Accordingly, these criminal appeals are hereby accepted, the impugned judgment of the trial Court is set aside with direction that the case is remanded to 'the trial Court to proceed with it afresh from the stage of recording of the statements of the accused persons under section 342, Cr.P.C., then to hear the parties and to decide the case afresh according to law.