1. ' SHAHID ANWAR BAJWA, J.---The appellant was tried for an offence under sections 302, 324, 337 A(i), P.P.C. Etc. The relevant part of the Judgment reads as under:-- "As the prosecution has established their case through ocular and medical evidence without any shadow of doubt against accused Kouro son of Wasand Magsi regarding injury caused by him to deceased Ahmed Lakho on pinna of right ear prior to death of deceased by causing hatchet blow.
2. The case against accused Koury son of Wasand Magsi has proved under section 324, P.P.C. For attempt to commit murder/Qatl-e-Amd, therefore, I hereby convict and sentence him for 10 years'
3. R.I. With fine of Rs,50,000 to be paid to the L.Rs of deceased and in case of default in payment of fine, he shall suffer S.I. For three months more. The benefit of section 382(b), Cr.P.C. Is extended to the accused Kouro."
4. ' Learned counsel referred to the question asked while recording statement under section 342, Cr.P.C. And the relevant question was as under:-- Q.No,l. You have heard the evidence. It has come on record that you on 9-6-2000 at 0715 hours along with absconding co-accused duly armed with weapons with common intention unlawfully assembled over the path near the house of the complainant party-fired upon them and caused injuries Shuja-i-Khafifah, shajjah-i-Mudihah and Damiiyah with intent to commit Qatl-e-Amd which resulted the death of Ahmed Lakho. On the spot. What have you to say?
5. ' Learned counsel submitted that no question in respect of causing hatchet injury to ear was asked while statement under section 342, Cr.P.C. Was recorded. Learned counsel relied upon the case of (Habibullah alias Bhutto and 4 others v. The State) (PLD 2007 Karachi 68). Learned counsel next submitted that the appellant has not caused death of anyone and is; therefore, entitled to bail. ,In this regard he relied upon the case of Sanaullah Khan v. The State (2010 SCM R 608). Learned counsel next submitted that the appellant was himself injured and was hospitalized from 8-6-2000 to 13-6-2000. He submitted that the complainant party was tried for that offence and vide Judgment dated 30-11-2011 they were convicted. He referred to the injuries recorded in that Judgment and stated that in view of such position, the applicants are entitled to bail. He relied upon the case of Faqir Muhammad v. Akbar and others (1979 SCM R 270) and Muhammad Yousaf v.
6. The State (2012 SCM R 68).
7. ' Learned Addl. P.G for the State submitted that although no question was asked regarding causing of hatchet injury by the present applicant but in question No,12 when the applicant was asked what else he wanted to say, he narrated the entire incident. Therefore, he opposed this application.
8. ' We have considered the submissions made by learned counsel and have also gone through the record.
9. ' The question asked from the appellant while statement under section 342, Cr.P.C. Has been reproduced above. Learned Addl. P.G relied upon last question where the appellant gave following answer:-- "I am nephew of the accused Peeral deceased and his relatives made dispute with me over a tubewell which was installed in my land deceased Ahmed Lakho has filed a first class Suit No,104 of 99 (199/99 new No,) on account of dispute, Ismail relative of Ahmed Lakho always instigating complainant party to kill one and my relatives including co-accused since the road approaching our village was in front of the houses of the complainant party they therefore were in knowledge of our movements from time to time. On the date of incident my son Fida Hussain along with Yar Muhamamd Khero and Gulab son of Nabi Bux were going to arrest Ali Muhammad Mari for erecting hedge around their houses while they were passing through in front of complainant party at the instance of Ismail Bachal, Muhammad Bux Ghulam Mustafa and Jumo inflicted, hatchet blows on the head and other parts of me with intention to kill on cries I & Ghulam Mustafa went running there. Then Ismail had abuses and declared Peeral as enemy No,1 attached upon us.
10. Ismail and Sher Muhammad with intention to kill me inflicted hatchet blow upon fired and Ghulam Mustafa in the meantime Ghulam Hussain with intention to kill Peeral fired with his gun, but unfortunately Ahmed Lakho became victim of his gun shot, on cries Ghulam Sarwar and Nabi Bux rescued us then Peeral and Ismail came at P.S for lodging report. But police referred Peeral to Civil Hospital by asking us to take` treatment at first & F.I.R. Will be recorded. The F.I.R. Of this case was lodged subsequently & police arrested us from Hospital. Therefore, my statement was recorded.
11. Suit of Ahmed Lakho against Peeral was dismissed thereafter.
12. ' In Habibullah's case (supra) it-was observed that any defect while recording statement under section 342, Cr.P.C. Is curable unless it is shown that the appellant has been prejudiced and miscarriage of justice has occurred. It was further observed as under-- "Under section 342, Cr. P. C. Duty is cast upon the trial Judge to put questions to the accused persons on the incriminating facts which have come in the evidence enabling the accused persons to explain circumstances appearing on the evidence against them".
13. ' In the present case as has been reproduced from the judgment, allegation was giving hatchet blow to head and the question asked is regarding fire. It is yet to be seen whether such defect was curable or not and whether the appellant has been prejudiced in his defence because of non- asking of question in this regard. Contention of learned Addl. P.G that the incident is admitted is no doubt true but that is regarding injury caused to the appellant and not the injury caused by the appellant. Therefore, whether any prejudice A has been caused to the appellant or not by the alleged defect in questions while recording statement under section 342, Cr.P.C. Can only be seen once the entire evidence is appraised. At bail stage, possibility of the accused being pre judiced in his defence cannot be ruled out and therefore, on this score case for bail is made out.
14. ' Second contention of the learned counsel was that the appellant had not caused death and therefore, he is entitled to suspension of sentence. Learned counsel relied upon Sanaullah Khan's case (supra). In the reported case sentence was suspended and bail was allowed because honourable Supreme Court came to the conclusion that the testimony did not prove that either injuries were caused by the appellant or injuries caused were reasons for death. The case is clearly distinguishable because the petitioner in that case was convicted under section 316 P.P.C. Whereas the present appellant is convicted under section 324 P. P . C .
15. Third contention of learned counsel was that the applicant had himself been injured in the incident and had received hospital treatment. Learned counsel referred to para 16 of the Judgment where the following injuries are described as having been received by the present appellant:
(1) Incised wound measuring 3 cm x 0.5 cm. On the left parietal region.
(2) Bruise 3 cm x 3 cm left lateral side of the hand.
(3) Bruise 2 cm x 2 cm below the left ear.
16. ' Here the contention of the learned counsel was twofold firstly he contended that since the present appellant had received injury on his head he could not have committed the offence alleged and secondly the complainant party has been convicted vide Judgment referred to above. In Faqir Muhammad's case (supra) relied upon by the learned counsel, sentence was suspended by the High Court primarily on the ground that a large number of Injuries were sustained by the side of the accused which were not explained by the prosecution. In Muhammad Yousaf's case (supra) it was observed by the Supreme Court as under:--- "After hearing the learned counsel for the parties and going through the relevant record we have observed that admittedly the petitioner had not caused any injury to Muhammad Afzal deceased and according to the prosecution he stood saddled with the responsibility of giving a blow from the butt of his pistol on the forehead of Muhammad Yasir (P. W. 9), During the investigation instead of a pistol the investigating agency had recovered a chhurri from the petitioner's possession. The Judgment passed by the learned trial Court on 31-5-2010 showed that the allegation levelled by the prosecution against the petitioner regarding causing an injury to Muhammad Yasir (P. W. 9) was found to be "fake and concocted" and the learned trial Court had expressly concluded that none of the so-called three injured prosecution witnesses was actually present at the scene of the crime at the relevant time. The learned trial Court had also found that the eyewitnesses produced by the prosecution had shown reckless disregard for the truth and also that as a matter of fact it was the complainant party of this case which had aggressed against the accused party. In view of such findings recorded and conclusions arrived at by the learned trial Court we have felt surprised that the learned Judge-in-Chamber of the Lahore High Court, Lahore had refused to consider such aspects of the case by maintaining that the same required deeper appreciation of the evidence on record which was not called for at that stage. In the wake of the above mentioned conclusions of the learned trial Court we have felt sanguine that the question of culpability of the petitioner would require serious reconsideration at the time of hearing of his main appeal before High Court."
17. As far as the contention of learned counsel that the appellant had received injury on head is concerned, it requires deeper appreciation of evidence as to when and how the injury was caused to the appellant and as and when and how such injury caused to the appellant would exclude possibility of the appellant causing any injury and this exercise cannot be undertaken at this stage.
18. ' Since we have come to the conclusion that question whether non-putting of nature 'of the injury and nature of weapon used while recording statement under sections 342, Cr.P.C. Requires proper appreciation as to whether the appellant has been prejudiced in his defence or not, we think that 'the case for suspension of sentence is made out. Consequently sentence of the appellant is suspended and the appellant is ordered to be released on bail upon his furnishing solvent surety for a sum of Rs,3,00,000 with P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.