RAJA SAEED AKRAM KHAN, J. --- Both the titled appeals arisen out of the judgment of the Shariat Court dated 14.06.2007, whereby the appeal filed by the complainant for enhancement of the sentence has been dismissed, whereas, while partly accepting the appeal filed by the convicts- appellants, the sentence of life imprisonment has been modified.
2. The facts necessary for disposal of the instant appeals are that a case under sections 324/337/34, APC, was registered at Police Station, Dadyal, on the complaint of All Muhammad. It was reported that complainant is resident of Baloh Jandala, Tehsil Dadyal. His son Yasrub was residing at Mirpur. He was arrested by the Police in a case registered against him under the Prohibition (Enforcement of Hadd) Act. Later on, due to ailment he was admitted in AlShifa Hospital, Rawalpindi. On 21.03.2001, the complainant, his sons Muhammad Aslam and Abid Hussain, went to see him. Hafiz Muhammad Shabir, son-in-law of the complainant, was already present in the hospital. The patient was discharged and the complainant, Hafiz Muhammad Shabir and others brought him back to village Baloh. Hafiz Muhammad Shabir asked the complainant to leave the patient at his house as he wanted to look after him. The complainant agreed and came back to his house. On 23.03.2006, in the morning time, the complainant, his son Muhammad Aslam and Muhammad Yasin s/o Bagh Hussain came to the house of Hafiz Muhammad Shabir to take Yasrub home. Alaf Din, uncle of Hafiz Shabir asked them to come in the evening. The complainant, Muhammad Aslam, Abid Hussain, Muhammad Yasin, Muhammad Ameer and Zaffar came to the house of Hafiz Shabir at 6:30 p.m. Alaf Din, Guftar, Sheraz, Hafiz Shabir and Abdul Aziz were present over there. The complainant demanded to send Yasrub with them, but Alaf Din refused and said that he would sent the patient after 8/10 days. Upon this the complainant asked him to fulfill the promise. In the meantime, they exchanged hot words and the complainant party stood up for leaving the house. As they came in the courtyard of the house, Hafiz Shabir, Guftar, Sheraz and Abdul Aziz armed with sticks launched attack. Guftar and Hafiz Shabir inflicted stick injuries at the head and right eye of Muhammad Aslam while Abdul Aziz and Sheraz beaten Abid Hussain. The complainant was also beaten by the accused persons. The occurrence was witnessed by members of the complainant party and others. Motive behind the occurrence was previous enmity.
3. Muhammad Aslam succumbed to the injuries on 24.03.2006 and section 302, APC was added.
The challan under sections 302/324/337, APC, was submitted before the Additional District Court of Criminal Jurisdiction, Dadyal. On completion of the trial Abdul Guftar and Hafi7 Muhammad Shabir were sentenced to suffer life imprisonment under section 302 APC, whereas, Sheraz was sentenced 5 years' imprisonment under section 324, APC, and 5 years simple imprisonment under section 337, APC, vide judgment dated 31.08.2006. Feeling aggrieved from the said judgment of the Trial Court, both the parties filed separate appeals before the Shariat Court. The complainant party filed appeal for enhancement of sentence, whereas, the accused party filed appeal for acquittal. The learned Shariat Court after necessary proceedings, dismissed the appeal filed by the complainant, whereas while partly accepting the appeal filed by the convicts-appellants modified the judgment of the Trial Court. The relevant portion of the impugned judgment is as under:- "In light of the facts listed above by modifying the impugned judgment Hafiz Muhammad Shabir and Abdul Guftar are convicted under Section 316, APC. They are awarded sentence of Diyyat and 7 years' imprisonment each. The amount of Diyyat equal to the value of 30,630/- grams silver calculated as Rs. 7,65,750/- shall be deposited before Additional District Court of Criminal Jurisdiction, Dadyal to be paid to the legal heirs of the deceased as per their shares in accordance with law. Benefit of section 382-B, Cr.P.C. Is also extended to the convicts."
The above-said judgment of the Shariat Court is subject-matter of these appeals.
4. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the convicts-appellants at the very outset drawn the attention of this Court towards the statement under section 242, Cr.P.C., recorded by the Trial Court. He contended that the charge has not been framed under the relevant provisions of law and no certificate has been issued. He further submitted that while recording the statement under section 342, Cr.P.C., the material has not been put to the accused which is a grave illegality and the same is not curable under section 537, Cr.P.C. He further contended that the statements under sections 242 and 342, Cr.P.C., are also not according to the format and the prescribed requirements of the relevant provisions of law, which is a clear deviation, from the relevant provisions and the same cannot be treated as statements under sections 242 and 342, Cr.P.C.
5. When this position was confronted with the learned counsel for the respondents, Mr. Lnamullah Khan, Advocate, he very gracefully conceded the legal position while submitting that he has no objection if the case is remanded back to the Trial Court, however, the time should be fixed as the matter is pending since year 2006.
6. We have given our serious thought to the statements recorded by the Trial Court under sections 242, Cr.P.C., and 342, Cr.P.C. So far as the statements recorded under section 242, Cr.P.C., are concerned although, we are convinced that the same have not been recorded in the manner provided under law, however, the relevant question whether the accused admits the guilt or not? Is of great importance. The answer made by the accused-appellants, namely, Abdul Guftar, Hafiz Muhammad Shabir and Sheraz is respectively:--- [(Urdu Text)] which fulfills the requirements to some extent and inference can be drawn that they pleaded guilt.
One of the requirements while conducting the proceedings under section 242r Cr.P.C., is to provide an opportunity to the accused to state as to whether he wants to say any thing in defence, any explanation of the charge framed against him, and he is at liberty to take any plea which he likes.
The main object of this proceeding is commencement of the trial of the accused. As the basic object is fulfilled and if the same is not framed according to the format no prejudice is caused to any party. After going through the contents of the statements, it cannot be said that the object of this provision has not been fulfilled, therefore, in our view, the statements recorded under section 242, Cr.P.C., in this case are not fatal and the trial could not be vitiated on the ground of technicalities. Thus, we are not intended to direct the Trial Court to record the statements under sections 242, Cr.P.C. Again. Reliance can be placed to a case reported as Abdul Jabbar v. The State [PLD 1993 Lahore 459], wherein it has been observed that:--- "The omission on the part of the learned Trial Judge to separately record the question-answer of the appellants while framing formal charge had not caused any miscarriage of justice to the appellants and the defect, if any was curable under section 357, Cr.P.C. With no re-action on the validity of the trial."
7. So far as the statement under section 342, Cr.P.C. Is concerned, the mechanism has been provided under the law which requires to be taken into account by the Trial Court while recording the statement under section 342, Cr.P.C. For better understanding, it would be appropriate to reproduce here the same, which reads as under:- "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.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court [...] may draw such inference from such refusal or answer as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for any other offence which such answers may tend to show he has committed.
(4) Except as provided by sub-section (2) of section 340, no oath shall be administered to the accused.
8. After going through the above-said provision, it becomes clear that this section is based on the principle involved in the maxim Audi Altram Partem, i.e., no one should be condemned unheard.
This section gives a valuable right to the accused to explain the incriminating circumstances in the prosecution evidence appearing against him and while providing him the full chance to offer his defence to establish his innocence, such right cannot be denied. The recording of the statements against the spirit of the provision of section 342, Cr.P.C., amounts to denial from the right of defence available to the accused which is against the principles of natural justice. Reliance can be placed on a case reported as Muhammad Mushtaq v. State [2001 SCR 286], wherein it has been observed that:--- "Therefore the alleged incriminating material put to the accused under section 342 is either not the part of the prosecution story or none of the prosecution witnesses has deposed so. Thus, by seeking the explanation of the convict-appellant on such incriminating material without its being part of the file of the prosecution or being part of the evidence of prosecution has seriously prejudiced the convict-appellant resulting into miscarriage of justice and against the accepted principles of fair play."
The requirement of the above section is that each piece of evidence and the circumstance having an incriminating affect against the accused in relation to offence, should be put to the accused when examined under section 342, Cr.P.C. For doing the needful a fair opportunity must be provided to accused and his attention must be drawn towards each and every incriminating material to enable him to explain the same. Reliance can be placed on a case reported as Abdul Rashid and 3 others v. Abdul Ghaffar & 5 others [2001 SCR 240], wherein it was observed as under:- "If a piece of evidence is not put to an accused person in his examination under section 342, Cr.P.C., either the case may be remanded for re-examination of the accused person under section 342, Cr.P.C., or the same may be excluded from consideration."
9. The examination of the language used in statements of accused when judged in the light of the provisions of section 342, Cr.P.C. And the principle of law enunciated in this regard, we are of the view that the learned Trial Court has not even looked into the said provision and totally remained unaware about the object of this section which is regrettable. It would not be out of place to mention here the opening words used while recording the statements under section 342, Cr.P.C., which speaks as under:- [(Urdu Text)] The words used in the hereinabove reproduced portion of the statements, itself negates the ability of the member of learned Additional District Criminal Court. Even the learned Shariat Court while passing the impugned judgment did not bother to look into the illegality committed by the Trial Court.
10. As we are convinced that the statement under section 342, Cr.P.C., is not recorded in accordance with law rather the same is deviation from the said provision. This situation has also been conceded by the learned counsel for the complainant. In these circumstances, there is no other option except to remand the case to the Trial Court for reexamination of the accused under section 342, Cr.P.C. Reliance can be placed to a case reported as Muhammad Rafique & another v.
The State [2014 MLD 44], wherein it has been observed that:--- "Perusal of the record would reveal that the statements of accused under section 342, Cr.PC., have not been certified within the meaning of subsection (2) of the section 464, Cr.PC., by the Trial Court, therefore, the legal objections raised by counsel for the appellant, holds water because perusal of the statement of the accused recorded under section 342, Cr.P.C., shows that while recording it the law on the subject has not been followed by the Trial Court stricto sensu. Perusal of the statement of accused recorded under section 342, Cr.P.C., reveals that the same does not bear a certificate of the Trial Court within the meaning of subsection (2) of section 364, Cr.P.C., hence I hold that the said statements of the accused/appellants under section 342, Cr.P.C., having not been certified within the meaning of sub-section (2) of section 364, Cr.P.C., which is mandatory in nature have no evidentiary value rather violation of it amounts to illegality which cannot be cured within the meaning of Section 537, Cr.P.C. Thus, by placing reliance on the case-law reported in 1987 P.Cr.LJ.
384 [Federal Shariat Court], "Salamat Ali alias Salmat Masih and another v. The State" and 1990 MLD 1158 [Karachi] "Nawab Chandio and another v. The State", I am of the view that non-compliance of the mandatory provisions of section 364, Cr.PC., at the time of recording statement of accused is violation of the mandatory provision of law on the subject which has vitiated the whole trial and therefore, the impugned judgment and order of conviction passed by the Trial Court as well as by the Session Judge, Charsadda is not sustainable in the eye of law and is therefore, liable to be set aside. Hence, I am left with no option but to accept this revision petition, set aside the impugned judgment and order of conviction passed by the learned Courts below in respect of conviction of the petitioners and consequently remand the case to the learned Trial Court with the direction to record the statement of petitioners under section 342, Cr.PC., in accordance with law on the subject and thereafter decide the case expeditiously on merits after receipt of the order of this Court."
Our this view is further fortified from another case reported as Fazal Ellahi v. Muhammad Yaqub & 17 others [2003 SCR 234], wherein it has been observed that:- "6. Even otherwise the provisions of section 342, Cr.P.C., are mandatory in nature and if the incriminating material is not put to accused under section 342, Cr.P.C., the same cannot be read against the accused; in such an eventuality either that piece of evidence is to be excluded from consideration or the case is to be remanded to the Trial Court for re-examining the accused under section 342, Cr.P.C."
11. The crux of the above discussion is that the case is remanded to the Trial Court with the direction to record the statements of accused persons afresh, keeping in view the statutory requirements as envisaged in section 342, Cr.P.C., in its true perspective. The Trial Court shall proceed with the case from the stage of recording the statements under the said provision and conclude the same under law within a period of 2 months positively from the communication of this order.
12. In the light of what has been stated above both the appeals stands disposed of.
Before parting we would like to direct the Registrar of this Court to transmit a copy of this judgment to the learned Chief Justice of the Shariat Court for perusal.