SYED MUHAMMAD FAROOQ SHAH, J.---Caption appeals arising from common judgment are taken together. Both appellants by invoking the appellate jurisdiction of the High Court of Sindh preferred appeals against the judgment dated 23.02.2016, passed by learned Additional Sessions Judge (Hudood), Sukkur, in case FIR No, 122/2009 dated 09.09.2009, registered at Police Station Kandhra, District Sukkur under section 17(3) (EOH), 1979 and under sections 342, 337-F(i), 149, P.P.C. On conclusion of trial, appellants were convicted and sentenced under sections 392, 324, 337-F(i), 337- F(iii), 337-L-2 of P.P.C. The appellants under misconception filed appeals against their conviction in High Court of Sindh, bench at, Sukkur through Criminal Appeal No, S-61 of 2016 and Cr. Appeal No, S-88 of 2017. the appeals were transferred to this Court vide order dated 25.09.2017 with the observation that during trial the charge was framed under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, so the appeals against final judgment of the learned trial Court lies before this Court. As the original appeals were filed in the High Court of Sindh, so the delay in filing of present appeals in this Court was also condoned vide order dated 23.11.2017 passed by the Hon'ble Chief Justice of this Court. Consequently, the main appeals were admitted for regular hearing.
2. I have heard the submissions advanced by Mr. Muhammad Sharif Janjua, learned counsel representing the appellants and Mr. Zafar Ahmed Khan, learned Additional Prosecutor General on behalf of State. Learned defence counsel argued that examined PW/Mushir Ghulam Nabi (PW:5) did not support the prosecution. So much so that PW-6/Mushir Noor Muhammad stated that his signatures were obtained' on blank white papers therefore, he cannot affirm the contents of so called memo Ex: 6-A and 6-C but surprisingly both these witnesses were not declared hostile, which shows that prosecution admitted their evidence to be correct. Next argued that there are discrepancies of grave nature and contradictions among the prosecution witnesses. While placing reliance on 1995 SCM R 1345 (Tariq Pervez v. The State), 1997 SCM R 25 (Muhammad Ilyas v. The State) and 2008 SCM R 1221 (Ghulam Qadir v. State), Mr. Januja learned counsel for the appellants argued that it is well settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he shall be entitled to such benefit not as a matter of grace but as a matter of right.
3. Impugned judgment appear to be dictated in a slipshod manner as an offence under section 324, P.P.C. (attempt to cause murder) has neither been mentioned in the Charge, nor such point for determination was formulated in impugned judgment and no specific question touching the ingredients of section 324, P.P.C. was put to the appellants by the trial Court.
4. It is the case of prosecution that accused persons fired upon the police party while plying the robbed Tractor/Trolley. Insofar as applicability of section 324, P.P.C. is concerned, evidence available on record reflects that the prosecution in support of its contention examined main star witness Head Constable Bukhtullah (Ex-P18) who stated that on seeing the police party, the accused fired upon them and such firing was exchanged in between the accused and police party for ten minutes and the police succeeded to apprehend the accused namely Bewas, and from his possession an illicit weapon was also secured however, his companion accused namely Dildar succeeded to escape. PW Bakhtullah in his cross-examination admitted that there is no mention in the FIR or Mashirnama of arrest that pistol was secured by him personally; further stated in cross that 45 bullets were fired by him and accused persons made direct firing and they fired about 30/35 bullets upon the police party. He further stated that during exchange of firing none has received injury from both sides.
5. A perusal of memo of arrest, search and recovery, Ex. 18-A reveals that robbed tractor bearing No, SKC-7551 and .30 bore pistol without number along with magazine were secured from appellant Bewas alias Muhammad Ali Manganhar. However, there is no mention about recovery of live bullets in magazine of said pistol nor empties were secured from the placed of occurrence, though as per statement of recovery witness about eighty (80) bullets were fired during the aforesaid encounter but none has received injury which shows that there was no straight firing made by the appellants with intention/attempt to cause murder of police persons as alleged in the memo of arrest, recovery and in the FIR.
6. It is an admitted position that neither Charge nor statement of accused reflects that the appellants were Charged for an offence punishable under section 324, P.P.C. Surprisingly, no such point of determination was formulated by the trial Court. For the sake of convenience amended Charge framed by the trial Court is reproduced hereinbelow.
AMENDED CHARGE I, Abdul Shakoor Shaikh, Addl. Sessions Judge (Hudood), Sukkur, do hereby charge you accused
1. Dildar alias Gidari son of Muhammad Saddique Shaikh
2. Bewas alias Muhammad Ali son of Mohib Ali Maganhar as follows: That you on or about 09.9.2009 at about 3.00 a.m at the link road leading from Aror to Daodanko with jurisdiction of P. S Kahndhra along with absconding accused being armed with deadly weapons in furtherance of your common intention committed harrabah on the show of force robbed one tractor trolly bearing registration SKC-7551 '1Messy Ferguson 240 Model 1985, cash amount and mobile phone sets and also wrongfully confined the complainant party, and thereby you committed an offence punishable under section 17(3) EHO, 1979, read with sections 395, 342, 148 and 149, P. P. C . within the cognizance of this court.
And I hereby direct that you be tried by this court on the aforesaid charge.
This the 11th day of September, 2014 Addl: Sessions Judge (H), Sukkur 11/9/14
7. From perusal of record, it appears that only contents of aforesaid Charge were repeated while recording the statement of accused under section 342, Cr.P.C.; No specific question with regard to applicability of section 324, P.P.C. was put to the appellants which shows that they have not been afforded opportunity to explain all incriminating circumstances bearing in evidence against them, though trial Court is bound to ask such question to the accused with detail of those piece of evidence, which have to be made the basis of conviction.
8. Suffice it to say that in case of omission to put such questions to the accused under section 342, Cr.P.C., their conviction cannot be sustainable; more particularly the aforementioned illegality or gross irregularity cannot be cured in light of case law reported in 2006 PCr.LJ 149 (Mehmood Raza v.
The State and 3 others), 2010 SCM R 1009 (Muhammad Shah v. The State), 1999 SCM R 697 (Sheral alias Sher Muhammad v. The State), 2017 SCM R 148 (Qaddan and others v. The State). It need not to be emphasized that section 342, Cr.P.C mandate that all incriminating evidence is to be put to accused in his statement under that section and the evidence which has not been confronted to accused, conviction cannot be based on such evidence. Consequently, the conviction and sentence recorded by the trial Court under section 324, P.P.C. is set aside.
9. At this juncture, after arguing the appeal at some length, Mr. Muhammad Sharif Janjua, learned counsel for the appellant without pressing the appeal on merits, contended that the appellants are sole bread-winner of their families and they are behind the bars since more than 3 years, being convict and they shall be satisfied if this Court remit the fine/daman amount by considering the aforementioned peculiar facts and circumstances of the case. On the other side, counsel representing the State recorded no objection to such proposition made by the learned counsel for the appellants. A perusal of fresh jail role dated 01.03.2018 transmitted by the Superintendent Central Prison Sukkur to this Court, transpires that the appellants have served the substantive sentence of two (2) years, fifteen (15) days, they earned remission of one (1) year, four (4) months and Twenty Seven (27) days. The benefit of section 382-B, Cr.P.0 was extended to them and as per jail role, their under trial period calculated by the Jail Authority is one (1) year, nine (9) months and Twenty One (21) days. Therefore, the total period of their confinement is five (5) years, seven (7) months and three (3) days till 01.03.2018.
10. It is not out of context to mention here that plea of reduction of sentence does not constitute a bar for the appellate Court from interfering, where findings are based on erroneous and speculative presumptions or non reading or mis-reading of evidence. Reliance in this regard is placed on Abdul Razzaq v. The State reported in 2002 SCM R 1239, therefore, conviction and sentence recorded by the trial Court under section 324, P.P.C. has been set aside with reasons mentioned as supra. The appellants have already served the conviction and sentence recorded in remaining offences except fine and 'daman' which amount is remitted in view of reasons recorded above. Consequently, the appellants are set free in this case; Superintendent Central Prison Sukkur is directed to release them forthwith if they are not required in any other case. Appeal is accordingly disposed of in the above said terms.