1. ' IFTIKHAR HUSSAIN BUTT, J.--- This appeal has been directed against the judgment of District Criminal Court, Mirpur, dated 6-8-2005, whereby Tanveer Ahmad, appellant, has been sentenced to death under section 302(b), A.P.C.
2. ' Brief facts forming the background of instant appeal are that Mst. Nanni Sultana, complainant, lodged an F.I.R. At. Police Station Afzalpur on 8-3-2001 at about 7-30 p.m. Alleging therein that she was married to Tanveer Ahmad, accused, about one year and three months prior to the occurrence. After two months of the marriage she came back to her parents because of the strained relations. On this account, her husband, accused, has been threatening her for population but she did not come back to his house. She further contended that on 8-3-2001 at 6-30 p.m. She along with her mother Mst. Zatoon Begum, cousin Kirran Tabassum and Muhammad Waqas were coming towards Kharri Sharif Bus Stand while riding on a "Tanga" of Zaffar. As soon as her mother, Muhammad Waqas and Zaffar reached a bit further from Dhoke Palyala Kass, Tanveer Ahmad, accused, armed with .44 bore rifle arrived there, who started hurling abuses to the complainant and her mother in a loud voice. In the meantime, Tanveer Ahmad started firing which hit her mother and Muhammad Waqas. On account of firing blood started oozing from the body of Mst.
3. Zatoon Begum, who fell down on the ground and died instantaneously. The occurrence was witnessed by complainant, her cousin Mst. Kirran Tabassum, Muhammad Waqas, Zaffar and other inhabitants of the village.
4. ' The motive behind the occurrence has been stated to be domestic resentment/dispute.
5. ' On this report a case was registered and after necessary investigation the accused was challaned before District Criminal Court, Mirpur in offences under sections 302 and 324, A.P.C. The District Criminal Court, after completion of the trial, awarded death sentence as Tazeer to Tanveer Ahmad, convict-appellant, under section 302(b), A.P.C. However, the convict-appellant was acquitted of the charge under section 324, A.P.C. Vide its judgment dated 6-8-2005. Feeling aggrieved and dissatisfied by the aforesaid judgment, Tanveer Ahmad presented an appeal before this Court, whereas a reference has also been made by the trial Court for confirmation of the death sentence.
6. The aforesaid appeal and reference are the subject-matters of this judgment.
7. ' Muhammad Abdul Aziz Chaudhary, the learned counsel appearing on behalf of the convict- appellant raised a preliminary objection and pointed out that the appellant wanted to give evidence on oath; therefore, it was incumbent upon the trial Court to afford an opportunity to the convict-appellant to give evidence on oath and record his evidence, as required by section 340(2), Cr.P.C. The learned counsel further contended that the right of accused to appear as his own witness has been denied causing serious prejudice to his case; therefore, the criminal proceedings are incomplete. The learned counsel submitted that the impugned judgment of the trial Court may be set aside and the case be remanded for retrial from the stage of recording the statement of accused under section 342, Cr.P.C. In support of his contentions the learned counsel cited the following authorities:--
(1) 1988 PCr.LJ 1958; (2) 1991 M LD 527; (3) PLD 1991 FSC 39 and 135; (4) 1992 M LD 421; (5) NLR 1993 SCJ 703; (6) PLD 2000 SC 795 and (7) 2005 PCr.LJ 677.
8. ' Muhammad Azam Khan, Advocate, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the convict-appellant and submitted that if an omission to inform the accused does not prejudice the case of accused, it will not make much difference; therefore, retrial or re-examination of the accused under section 340(2), Cr.P.C. Is not required. The learned counsel pointed out that the convict-appellant has not produced the defence evidence; therefore, it was not incumbent upon the Court to inform the accused for examination under section 340(2), Cr.P.C.
9. ' Sardar Muhammad Raziq Khan, the learned Additional Advocate-General appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant.
10. ' I have very carefully taken into consideration the points canvassed by the learned counsel for the parties after perusing the record made available. At the very outset, it will be relevant to note that I do not want to enter into the merits of the case because a material irregularity has been committed in the trial of the case which cannot be cured even under section 537, Cr.P.C. As such the case has to be remanded for retrial.
11. Section 340(2), Cr.P.C. Clearly lays down that failure on the part of the trial Court to call upon an accused to give evidence on oath and to record his evidence, unless declines to do so, renders the trial incomplete. The fact that accused was examined by the trial Court under section 342, Cr.P.C. In the case, would not make any difference because the purpose of examination of accused under section 342, Cr.P.C. Is almost different from his examination under section 340(2), Cr.P.C. In the former case, the explanation of the accused is sought about important and material pieces of prosecution evidence appearing against him while in the latter case, evidence is offered to disprove the case set up by the prosecution.
12. ' Coming to the instant case, the accused-appellant has himself opted to give evidence on oath under section 340(2), Cr.P.C. But no opportunity was afforded to him to examine himself; therefore, the trial Court failed to discharge its legal obligation under section 340(2), Cr . P . C .
13. ' This contention of the learned counsel that appellant has not produced the defence evidence; therefore, it was not incumbent upon the Court to inform the accused for his examination under section 340(2), Cr.P.C. Does not appear to be well-founded. As stated earlier, section 340(2), Cr.P.C.
14. Has introduced a new concept of the principle of criminal jurisprudence and it has been made incumbent upon the Court to give opportunity to the accused to give evidence on oath. However, I agree with this plea of the learned counsel for the complainant that an omission to inform the accused will not make much difference, if it does not prejudice the case of accused. In a case titled Amir Khatoon v. Faiz Ahmad PLD 1991 SC 787, the following principle was enunciated in para.24 at page 798:-- "In that view of the matter and it being a right of the accused, the Court may in a given case omit to inform it and it will depend upon the facts of each case whether such omission has resulted in prejudice to the accused or miscarriage of justice?"
15. ' It was opined in a case reported as Muhammad Nazir v. The State 1988 PCr.LJ 1958 as under:-- "We are, therefore, of the opinion that the obligation of giving evidence on oath on the accused under subsection (2) of section 340 of the Code of Criminal Procedure casts obligation on the trial Court to call upon the accused to give evidence on oath and record his evidence, unless he declined to do so."
16. ' In this regard, reliance may also be placed upon a case titled Mukhtar Ahmad alias Bholi v. The State 1991 M LD 527, wherein the statement made by the accused/appellant without oath under section 342, Cr.P.C., was read over as an evidence on oath under section 340(2), Cr.P.C. In disproof of the charge, was disproved and declared illegal, consequently, the case was remanded for afresh decision.
17. ' It was observed in a case titled Afzal Haider v. The State 1992 M LD 421 that failure to provide opportunity to accused to examine himself on oath to disprove the charge, causes serious prejudice to his case.
18. ' It was held in another case titled Haji alias Muhammad Rafique v. The State 1997 PCr.LJ 1434 that denial of opportunity to accused to give evidence on oath in disproof of allegations made against him amounts to denial of fair trial which is not a mere irregularity but an illegality not curable under section 537, Cr.P.C. In the instant case, conviction and sentence of the accused were set aside and the case was remanded to the trial Court for afresh decision.
19. ' It was laid down in a case titled Muhammad Usman and 2 others v. The State PLD 1991 FSC 39 that "the criminal proceedings would be "incomplete" if the trial Court had failed to give opportunity to the accused to give evidence on oath as required under section 340(2), Cr.P.C." In the present case, the Federal Shariat Court set aside the judgment of trial Court and remanded the case for retrial from the stage of recording statement of the accused under section 342, Cr.P.C.
20. ' The same view was affirmed in a case titled State and others v. Ghulam Abbas and others PLD 1991 FSC 135, wherein it was observed that "failure of the learned trial Judge to call upon the accused to make statement on oath as provided under section 340(2), Cr.P.C. And, therefore, without going into the merits of the case, we set aside the judgment impugned in the above appeals and remand the case for retrial from the stage of recording statements of the accused under section 342, Cr.P.C."
21. ' The same view was reaffirmed in a case titled Mohtarama Benazir Bhutto M.N.A. And another v.
22. The State PLD 2000 SC 795 in the following manner:-- "Section 340(2), Cr.P.C. Casts a duty on the Court to inform the accused that he/she has right under the law to make his statement on oath and it is his option with no risk attaching it to either make that statement or not to make that statement, (See PLD 1991 SC 787). The fact that Ms. Benazir Bhutto was examined by the Court under section 342, Cr.P.C. In the case, would not make any difference as the object of the examination of an accused under section 342, Cr.P.C. Is quite different from his evidence under section 340(2), Cr.P.C. The Supreme Court allowed the opportunity to the accused to examine herself under section 340(2), Cr.P.C. As her own witness in the case."
23. The crux of the above cited case-law shows that under section 340(2), Cr.P.C. It has been made incumbent upon the Court to afford an opportunity to an accused to give evidence on oath to disprove the charge against him as an integral part of the trial of the cases and the trial would incomplete without such evidence. The mere question put to accused about his defence and innocence while being examined under section 342, Cr.P.C. Is not due compliance of the provisions of section 340(2), Cr.P.C. And where the trial Court failed to call upon an accused under section 340(2), Cr.P.C. To give evidence on oath, illegality committed by the trial Court is not cureable under section 537, Cr.P.C. In such-like situation the case has to be remanded for retrial from the stage, the above stated illegality was committed. In the instant case, an opportunity was not afforded to the convict-appellant to give evidence on oath; therefore, the trial is not only incomplete but the right of the accused to appear as his own witness has been denied causing serious prejudice to his case.
24. ' For the reasons listed above I refuse to confirm the death sentence passed upon Tanveer Ahmad, appellant. The conviction and sentence are set aside and the case is remanded to the trial Court with the direction that it shall again record the statement of the accused under section 340(2), Cr.P.C. And decide the case afresh. The District Criminal Court, Mirpur has already given its findings on merits; therefore, the case is transferred to the file of Additional District Criminal Court, Dudyal, Camp Mirpur. The trial Court will decide the case within a period of one month. The appellant will remain confined in jail as undertrial prisoner till decision of the case. The parties are directed to appear before Additional District Criminal Court Dudyal, Camp Mirpur on 13-11-2006. A copy of the judgment shall be annexed with the other file.