NAIMATULLAH PHULPOTO, J.---Appellants Moinuddin and Jalaluddin were tried by learned 1st Additional Sessions Judge, Hyderabad in Sessions Case No.78 of 1999 for offences under sections 302, 34, 324, P.P.C. After full dressed trial, by judgment dated 29th October, 2010 appellant Moinuddin And Jalaluddin were convicted under section 302 read with section A, P.P.C. And sentenced to death. Accused Moinuddin was further convicted under section 324, P.P.C. And sentenced to 7 years' R.I. And to pay fine of Rs.10,000/- And in default of payment, he shall suffer S.I. for one year. Trial Court made reference to this Court for confirmation of death sentence as required under section 374, Cr.P.C. Appellants filed appeal against conviction and sentence recorded by the trial Court. By this judgment, we intend to dispose of above numbered criminal appeal, reference made by trial Court for confirmation of death sentence And criminal revision application.
2. Mr. A. Q. Halepota, learned advocate for appellants submits that trial Court while recording statements of accused under section 342, Cr.P.C. has committed illegality by not putting material questions to the appellants, regarding motive, crime weapon And report of the ballistic expert. He submits that trial Court while relying upon such pieces of evidence has recorded conviction against the appellants. It is further contended that a failure to comply with the mandatory requirement vitiates a trial. The case in hand is the case of murder, entailing a sentence of death.
Trial Court had handled the matter in a casual manner. Mr. Halepota lastly contended that case may be remanded to the trial Court for recording the statements of accused under section 342, Cr.P.C. afresh, in accordance with law.
3. Mr. Muhammad Iqbal Awan, A.P.G. recorded no objection for remand of the case to the trial Court for recording the statements of accused under section 342, Cr.P.C. afresh by putting all incriminating pieces of evidence to the accused so as to provide them An opportunity to explain their position in that regard.
4. The legal position has been enunciated by the Honourable Supreme Court in an unreported judgment in Criminal Appeal No.292 of 2009 dated 28.10.2010 in the case of Muhammad Hassan v.
The State, relevant portion is reproduced as under:-- "3. In view of the order we propose to pass there is no occasion for going into the factual aspects of this case and it may suffice to observe that the case of the prosecution against the appellant was based upon prompt lodging of the FIR, statements of three eye-witnesses, medical evidence, motive, recovery of weapon of offence and a report of the Forensic Science Laboratory regarding matching of some of the crime-empties with the firearm allegedly recovered from the appellant's possession during the investigation but we have found that except for the alleged recovery of Kalashnikov from the appellant's possession during the investigation no other piece of evidence being relied upon by the prosecution against the appellant was put to the appellant at the time of recording of his statement under section 342, Cr.P.C.
4. It is by now a settled principle of criminal law that each and every material piece of evidence being relied upon by the prosecution against An accused person must be put to him at the time of recording of his statement under section 342, Cr.P.C. so as to provide him An opportunity to explain his position in that regard And denial of such opportunity to the accused person defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a trial. The case in hand is a case of murder entailing a sentence of death And we have truly been shocked by the cursory And casual manner in which the learned trial Court had handled the matter of recording of the appellant's statement under section 342, Cr.P.C. which statement is completely shorn of the necessary details which were required to put to the appellant. We have been equally dismayed by the fact that even the learned Judges of the Division Bench of the High Court of Sindh deciding the appellant's appeal had failed to take notice of such a glaring illegality committed by the trial Court. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely An irregularity curable under section 537, Cr.P.C. but the same was a downright illegality which had vitiated the appellant's conviction And sentence recorded And upheld by the learned Courts below."
5. We have carefully perused the evidence as well as statements of the accused recorded under section 342, Cr.P.C. at Ex-30 And Ex-31, it is clear that all the incriminating pieces of evidence on which trial Court had placed reliance were not put to accused at the time of recording their statements, particularly recovery of crime weapon, ballistic report And motive. In the above circumstances, while relying upon the above said authority we have come to the conclusion that trial Court has committed illegality which is not curable under law. It is by now a settled principle of criminal law that each And every material piece of evidence being relied upon by the prosecution against An accused person must be put to him at the time of recording of his statement under section 342, Cr.P.C. so as to provide him An opportunity to explain his position in this regard And denial of such An opportunity to the accused person defeats the ends of justice. It is equally settled that a failure to comply with this mandatory requirement vitiates a trial. In the present case death sentence has been awarded to the appellant And we have been shocked by the casual manner in which trial Court had handled the matter of recording of appellants' statements under section 342, Cr.P.C., which statements are completely shorn of the necessary details which were required to put to the accused so as to provide them An opportunity to explain their position in that regard And denial of such opportunity defeats the ends of justice. Omission on the part of the learned trial Court mentioned above was not merely An irregularity curable under section 537, Cr.P.C. but the same had vitiated the appellants' conviction And sentence recorded by the trial Court.
6. In view of the above legal And factual position, this appeal is allowed, impugned judgment dated 29-10-2010 passed by the learned trial Court is set aside And the case is remanded back to the trial Court for recording the statements of accused under section 342, Cr.P.C. afresh And then to proceed with the matter in accordance with law. Reference for confirmation of death sentence is Answered in negative And revision is accordingly disposed of. We took note of the fact that occurrence had taken place on 08.02.1998. We are sad to remand the case back, finding no other option. Thus, trial Court is directed to complete the post remand proceedings of the case within two months.
7. Mr. Halepota in the end pointed out that appellants were granted bail by this Court during trial on the ground of statutory delay in the conclusion of the trial and prayed that bail may be granted to the appellants. Needless to mention that the appellants would be at liberty to move the bail application before the trial Court on the said ground, the same shall be decided by the trial Court in accordance with law.
8. Consequently, Criminal Appeal No.503 of 2010, Confirmation Case No.01 of 2011 And Criminal Revision Application No.181 of 2010, are accordingly disposed of.