KHADIM HUSSAIN TUNIO, J. -Appellant/accused Ali Sher son of Barkat Ali Bhatti was tried by the learned 1st Additional Sessions Judge, Badin, in Sessions Case No.120 of 2005 (Re: The State v. Ali Sher son of Barkat Ali), arising out of Crime No.34 of 2002, registered at Police Station Shaheed Fazil Rahu, for offence under section 302, P.P.C. By judgment dated 26.06.2010, the appellant was convicted under section 302(b), P.P.C. and was sentenced to imprisonment for life and to pay compensation of Rs.100,000/- to the legal heirs of each deceased in terms of Section 544-A, Cr.P.C., failing whereof he shall suffer S.I. for six months more. However, the benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. Concisely, the facts of the prosecution case are that, on 25.05.2002, the complainant namely Ghulam Ali lodged FIR at Police Station Shaheed Fazil Rahu, alleging therein that he is zamindar.
Son of his brother, namely Shabir Ahmed, aged 27/28 years is residing in front of the house of accused Ali Sher. Accused Ali Sher was married with Mst. Fatima, aged about 17/18 years, she was daughter of one Rajab Ali. On 25.05.2002, the nephew of complainant Muhammad Ameen and his relative Mushtaque were present in the house, when at about 1;30 p.m. they heard cries towards the house of Juman Bheel and they rushed there and saw accused Ali Sher standing there having pistol with in his hand. The accused fired upon Shabir Ahmed, who fell down on the ground and then accused immediately went inside of his house and dragged Mst. Fatima out of his house and also fired upon her and she fell down on the ground and then the accused fled away. Shabir Ahmed and Mst. Fatima on receiving firearm injuries died away. In the meantime, brother of Mst.
Fatima, namely Umar, his mother Mst. Najma also came from Hyderabad and saw the dead bodies of the deceased. Thereafter, the complainant leaving some persons over the dead bodies went to police station where he lodged the FIR. Pursuant to the registration of the FIR, the accused was arrested and after usual investigation, challan was submitted before the competent Court of Law.
3. The trial Court framed the charge against the appellant, to which he pleaded 'not guilty' and claimed to be tried. At the trial, prosecution examined in all eight witnesses.
4. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex-19, wherein he denied the allegations levelled upon him by the prosecution and further stated that he is innocent and has been falsely involved. He however, neither examined himself on oath, nor led any evidence in his defence.
5. The learned trial Court having heard the parties and assessed the evidence, convicted and sentenced the appellant as referred in the foregoing paragraph. Hence. the appellant has preferred the instant appeal by impugning the judgment of the trial Court.
6. Learned Counsel for the appellant has contended that there is illegalities and irregularities in the proceedings conducted before the trial Court; that in the statement of the appellant recorded under Section 342, Cr.P.C. (Ex-19), all the incriminating pieces of the evidence with regard to each count have not been put to him, enabling him to explain his defence. He next contended that the learned trial Court has proceeded with the trial in a hot and hasty manner; that the learned trial Court has committed material illegalities and irregularities while passing the judgment as the statement has not been properly recorded, hence, the impugned judgment may be set-aside and the matter may be remanded to the trial Court for recording statement of the accused under Section 342, Cr.P.C. afresh.
7. On the contrary, the learned Additional Prosecutor General appearing for the State conceding to the above legal preposition recorded his no objection for remand of the case to the trial Court.
8. I have heard the learned counsel for the respective parties and have gone through the entire record with their able assistance.
9. From the perusal of the impugned judgment, it reveals that the learned trial Court has convicted and sentenced the appellant/accused under Section 302, P.P.C. and sentenced him to life imprisonment with compensation of Rs.100,000/- to be paid to the legal heirs of each deceased as provided under Section 544-A, Cr.P.C. Further, the learned trial Court, while convicting and sentencing the appellant to suffer life imprisonment, has not specifically elaborated whether the sentence awarded to the appellant is on each count as the appellant / accused was charged for offence punishable under Section 302, P.P.C. for committing Qatl-e-Amd of deceased namely, Shabir Ahmed and Mst. Fatima. Besides, perusal of statement of the appellant recorded under Section 342, Cr.P.C. it reflects that the said statement is patently stereotype, wherein few routine questions have been put to the appellant but the material pieces of the incriminating evidence have not been put to him by the learned trial Court and being such peculiar circumstances, the trial Court has convicted and sentenced the appellant while passing the impugned judgment by not putting the material pieces of the evidence in the statement of the appellant, which is against the principle of natural justice. At the time of recording the statement of the appellant under Section 342, Cr.P.C., the material pieces of incriminating evidence, such as, blood-stained clothes of the deceased, bloodstained mud etc., secured by the I.O. from the place of incident, have not been put to the appellant, enabling him to explain each and every circumstance appearing in the evidence against him. It may also be observed that the purpose of recording statement of accused in terms of Section 342, Cr.P.C. is to inform the accused about the prosecution case, so that he may also be able to explain the circumstances creating in the evidence against him and also for the purpose of preparing his defence, which is right of the appellant as per law. It is well settled law by now that each and every material incriminating piece of evidence being relied upon by the prosecution against the accused must be put to the accused at the time of recording his statement as provided under Section 342, Cr.P.C. giving him an opportunity to explain his position and failure to comply with such mandatory requirement of law being incurable under the provisions of Section 537, Cr.P.C., would vitiate the conviction and sentence awarded to the accused. Under these circumstances, in my humble view, the conviction and sentence awarded to the appellant cannot be sustained.
10. On the above peculiar circumstances, the Honourable Superior Court in many cases has observed that the incriminating piece of the evidence, which, if not put to the accused at the time of recording of statement under Section 342, Cr.P.C. the same could not be used as piece of evidence against him. In this respect, reference can be made to the cases reported as Imtiaz alias Taj v. The State and others (2018 SCMR 344), Qadan v. The State (2017 SCMR 184), Muhammad Nawaz v. The State (2016 SCMR 267), Muhammad Shah v. The State (2010 SCMR 1009), Munawar Hussain alias Asghar Ali v. The State (1991 SCMR 1601), Nadir Khan v. The State (2001 MLD 1873), Ashique Ali v. The State (2005 PCr.LJ 48), Nazir Ahmed and others v. The State (PLD 2005 Kar. 18), Muhammad Ayoub v. The State (2006 PCr.LJ 257) and Habibullah alias Bhutto and 4 others v. The State PLD 2007 Kar. 68.
11. It has been held in the case of Habibullah alias Bhutto and 4 others v. The State (PLD 2007 Karachi 68) as under:- "...From this fact alone it appears that the learned trial Judge did not go through the evidence while recording the statements under Section 342, Cr.P.C. so as to put all incriminating pieces of evidence to the appellants to obtain their explanation. Under Section 342, Cr.P.C. a 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. Thus the Provision of Section 342, Cr.P.C. have not been fully complied with."
12. In view of the above stated circumstances and in particular the law laid down by the Honourable Superior Court, the present appeal is allowed and the conviction and sentence awarded to appellant Ali Sher son of Barkat Ali Bhatti, vide impugned judgment dated 26.06.2010, in Sessions Case No. 120 of 2002 (Re: State v Ali Sher), emanated from FIR No.34 of 2002, registered at Police Station Shaheed Fazil Rahu, is set-aside and the case is remanded back to the learned trial Court for recording statement of the appellant / accused under Section 342, Cr.P.C. afresh, confronting him each and every material incriminating piece of the evidence, particularly with regard to each count including bloodstained clothes of the deceased and bloodstained mud etc, so as to enable him to furnish his explanation thereto and thereafter to pass the judgment afresh within a period of 06 (six) months from the date of receipt of R&Ps. Office is directed to return the R&Ps of the case to the learned trial Court immediately.