1. Farooq Haider , J:- Through this single consolidated judgment Criminal Appeal No.329/2012 filed by Abdul Shakoor alias Mullan, Crl. Appeal No.345/2012 filed by Muhammad Din and Abdul Ghafoor (hereinafter called as appellants) against judgment dated 29.09.2012 passed by learned Addl. Sessions Judge, Bahawalnagar, whereby appellant Abdul Shakoor alias Mullan has been convicted and sentenced under section 302(b) PPC to death on two counts for committing qatl-e-amd of Muhammad Ahmad and Muhammad Sadiq with payment of compensation Rs.2,00,000/- to the legal heirs of Muhammad Ahmad deceased under Section 544-A Cr.P.C and in default thereof to further undergo twelve months S.I; whereas appellants Muhammad Din and Abdul Ghafoor have been convicted and sentenced under section 324 PPC to rigorous imprisonment for five years each with payment of Daman of Rs.30,000/- each to injured Mst. Shehnaz Bibi and in default thereof to further undergo six months S.I with benefit of Section 382-B Cr.P.C. and Murder Reference No.52/2012 sent by learned trial Court under Section 374 Cr.P.C. for confirmation of death sentence awarded to appellant Abdul Shakoor alias Mullan through the aforementioned impugned judgm ent passed in private complaint titled as Mst. Shehnaz Bibi Versus Abdul Shakoor and others, (arising out of cross version recorded in case FIR No.115/2010 registered at Police Station Mecleod Gunj, District Bahawalnagar), are being decided together because all these matters have arisen out of one and same judgment.
2. Brief facts of the case are that initially at the instance of Zafar Iqbal (one of the accused person of private complaint), FIR No.115/2010 under Sections 302, 148, 149 PPC was registered at Police Station Mecleod Gunj, Minchinabad, District Bahawalnagar against Muhammad Irshad, Muhammad Dilshad, Muhammad Ahmad (deceased), Muhammad Asif and Muhammad Safdar; during course of investig ation of said case, police also recorded cross version from the side of accused persons of aforementioned FIR, on the application of Muhammad Ahmed, against Abdul Shakoor , Muhammad Din, Karam Din, Abdul Ghafoor , Niaz Ahmed and Zafar Iqbal; after usual investigation, the police declared all the accused persons of aforementioned FIR and the accused persons of cross version as innocent except accused Abdul Shakoor , Zafar Iqbal and Muha mmad Din; feeling dissatisfied, Mst. Shehnaz Bibi (injured in cross version case), filed the private complaint (Ex.P A) against Abdul Shakoor etc. (mentioned above) before the learned Area Magistrate, which was entrusted to learned Additional Sessions Judge, Bahawalnagar , in which the present appellants and their co-accused namely Karam Din, Niaz Ahmad and Zafar Iqbal were summoned and charge sheeted, to which, they pleaded not guilty and claimed trial. Thereafter complainant examined prosecution witnesses and also tendered reports of Chemical Examiner and Serologist, then Court examined Court witnesses. Thereafter , statement of the appellants and their co-accused were recorded under Section 342 Cr.P.C. in which they refuted the allegations levelled against them. They did not get recorded their statements under Section 340(2) Cr.P.C., however , they tendered some documents in their defence, thereafter , amended charge was framed and the learned trial court convicted and sentenced the appellants as mentioned above while acquitted Muhammad Zafar and Karam Din vide impugned judgment dated 29.09.2012.
2. (Needless to observe that Niaz Ahmed died during trial).
3. After hearing learned counsel for the appellants, learned counsel for the complainant, learned law officer and going through the record with their able assistance, it has been noticed that instant case was regarding murderous assault planted upon Mst. Shehnaz Bibi and committing murder of two persons namely Muhammad Ahmad and Muhammad Sadiq, however, at the time of framing of charge on 30.4.2011, learned trial court framed the charge against the accused/appellants and their co-accused with respect to murderous assault upon Mst.
3. Shehnaz Bibi and murder of Muhammad Ahmad only, it was not framed with respect to the murder of Muhammad Sadiq; there are two orders dated 25.09.2012 available in the order sheet, according to first one, on 25.9.2012 after completion of recording of evidence and statements of accused persons/appellants under Section 342 Cr.P.C., case was adjourned to 27.09.2012 by the learned trial Court for defence evidence, however, 2 order dated 25.9.2012 shows that on that day, Abdul Shakoor after tendering some documents closed his defence evidence, final arguments were also heard by the learned trial Court and during the arguments it was pointed out by the learned counsel for the complainant that charge has not been framed against accused with respect to murder of Muhammad Sadiq and said point was found as justified by the learned trial Court, modified charge was framed against the accused on a separate sheet and case was adjourned for 29.9.2012 for judgment; perusal of entire record shows that no modified charge dated 25.9.2012 is available on the record, however , amended charge dated 27.9.2012 is available on a separate paper , wherein at the bottom, it has been noted as under: - "Certified that the charge has been framed against the accused persons and explained to them in the language in which they understand to which they pleaded not guilty and claimed trial. Let their plea be recorded "
4. (emphasis added)
5. However , no record containing statement of accused/appellants with respect to "plea of accused/appellants and their statement about any defence to make " after framing of amended charge, is available in the entire record of this case. It is trite of law that after framing of the charge, recording statemen t of accused about his plea or defence to make is mandatory and for ready reference section 265-E Cr .P.C. is being reproduced:- "265-E. Plea. (1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty the Court shall record the plea, and may in its discretion convict him thereon."
6. It goes without saying that if accused does not plead guilty when charge is framed against him and claims trial then his statement that he has any defence to make at that juncture is very much relevant for the purpose of appreciation of "evidence and defence taken by him during the trial", therefore, recording of plea of the accused and recording his statement that he has any defence to make or not, at the time of framing of charge, is very much necessary and mandatory for just decision of the case.
7. Perusal of amended charge through amended charge sheet dated 27.09.2012 (mentioned above) shows that it was categorically mentioned therein that accused/appellants claimed trial but admittedly no trial was conducted thereafter and appellants were straightaway convicted and sentenced through the impugned judgment dated 29.09.2012.nd It is very much important to mention here that there is no record available to show that after framing amended charge, complainant or accused/appellants were allowed to examine or re-examine any witness. Perusal of record also reveals that after re-framing of the charge, which included murder of Muhammad Sadiq mentioned above also, accused/appellants were not examined under section 342 Cr.P.C. Perusal of entire order sheet of the case shows that the case was not taken up by the learned trial Court on 27.09.2012 , in this state of affairs, availability of only one paper sheet containing amended charge dated 27.09.2012 without recording of pleas of the accused/appellants and their statements about any defence to make, raises eye brows and makes the same as doubtful.
8. Therefore, above mentioned episodes (comprising upon illegalities, which are not curable) have individually and collectively caused serious prejudice to the accused/appellants and also have vitiated the trial.
9. Learned counsel for the appellants, learned counsel for the complainant and learned law officer in unison have jointly requested for remanding the case to the extent of appellants, back to the learned trial Court for their re-trial while submitting that aforementioned illegalities have caused prejudice to the accused/appellants and complainant/prosecution; they have further submitted that said illegalities are not curable.
10. In the light of what has been discussed above and also in the light of joint request made by the learned counsel for the parties and learned law officer, it has been found appropriate to remand the case, to the extent of appellants, back to the learned trial Court for their re-trial i.e. framing of the appropriate charge against them, recording their pleas and statements as required under section 265-E Cr.P.C. and then conducting their further trial in accordance with law .
4. In view of, what has been discussed above, Crl. Appeal No.329/2012, filed by Abdul Shakoor alias Mullan and Crl. Appeal No.345/2012 filed by Muhammad Din and Abdul Ghaf oor, are allowed, impugned conviction recorded and sentence awarded to them through impugned judgment dated 29.09.2012 are hereby set aside, case is remanded back to their extent to the learned trial Court for their retrial from the stage of reframing of charge according to the facts of the case in accordance with law, Murder Reference No.52/2012 is answered in negative and death sentence awarded to Abdul Shakoor alias Mullan is not confirmed . It is also directed that learned trial Court shall conclude the trial of the case within a period of one month positively from the date of receipt of copy of this judgment.
11. Before parting with this judgment, it is clarified that since Muhammad Din and Abdul Ghafoor were on bail during trial and even after conviction, their sentences were suspended, therefore, they would remain on bail during trial subject to their furnishing of bail bonds in the sum of Rs.1,00,000/- with one surety each in the like amount to the satisfaction of learned trial Court, however , Abdul Shakoor alias Mullan appellant would remain in jail as under trial prisoner .
12. The parties are directed to appear before the learned Sessions Judge, Bahawaln agar, on 24.04.2019, who shall either himself try the case or entrust the same for trial to any other court of competent jurisdiction. Weekly progress report of the trial shall be submitted by the learned trial Court to the Deputy Registrar (Judicial) of this Court.
13. Record of this case be immediately remitted back to the learned Sessions Judge, Bahawalnagar .