ROZI KHAN BARRECH, J.---This judgment will dispose of Criminal Appeals Nos, 38, 39, 44, 47, 50, 63 and 65 of 2016 in which common questions of law and facts are involved.
2. Briefly stated facts of the case are that on 27.02.2013 upon the report of complainant Saeed Ahmed Gul, Section Officer (Schools-III) FIR No, 1-Q of 2013 was registered at PS Anti-Corruption Quetta under sections 409, 420, 467, 468, 471, P.P.C. read with section 5(2) of the Act-II of 1947, with the allegation of making fake and bogus appointments of thirty nine teachers in District Pishin/Killa Abdullah by the Ex-D istrict Education Officer Pishin namely Abdul Rasheed Tareen (appellant in Criminal Appeal No, 50 of 2016) and Deputy District Education Officer Pishin namely Mulazim Hussain (appellant in Criminal Appeal No, 65 of 2016).
After completion of the investigation, the challan was submitted before the learned Special Judge Anti-Corruption Quetta ("trial court"). After a full dressed trial, the trial court vide judgment dated 17.05.2016 ("impugned judgment") convicted and sentenced the appellants in the following terms: "Under section 409, P.P.C. to suffer RI for eight years each and fine of Rs. 75,000/- each, in default to further undergo for two months SI each."
"Under section 420, P.P.C. to suffer RI for five years each and fine of Rs.50,000.- each, in default to further undergo for two months' SI each.
Under section 467, P. P. C. to suffer RI for eight years each and fine of Rs.50,000/- each, in default to further undergo for two months' SI each.
Under section 468, P. P.C. to suffer RI for five years each and fine of Rs.50,000/- each, in default to further undergo for two months' SI each.
Under section 471, P.P. C. to suffer RI for five years and fine of Rs.50,000/- each, in default to further undergo for one month's SI each.
Under section 5(2) of Act-II of 1947 and sentenced to suffer RI for four years each with fine of Rs. 50,000/- each in default to further suffer SI for two months' each including recovery of Rs.87,36,612/- which shall be recoverable from movable and immovable properties owned by the accused persons severally or jointly . Process as provided under section 386, Cr. P. C. be issued to District Officer Revenue Quetta, Pishin, Killa Abdullah for attachment of properties owned by the accused persons and its sale by way of auction to satisfy the sentence of fine. If the amount of fine in whole is not recoverable from the properties owned by the accused, then they will further suffer RI for one year each.
All the substantive sentences recorded against the accused shall run concurrently . Benefit of section 382-B, Cr.P.C. is extended in the favour of accused."
Being aggrieved from the impugned judgment passed by the trial court the appellants have filed these appeals.
3. I have heard the arguments advanced by learned counsel for the appellants and learned counsel appearing on behalf of the state, besides minutely perusing the record of the case.
4. At the outset, it may be observed here that statement of the appellants in terms of section 342, Cr.P.C. had not been recorded in accordance with its spirit and as such departure there from is not permissible. The use of word "shall" in latter part of subsection (1) of section 342, Cr.P.C. indicates that the examination of the accused is mandatory and not discretionary . If after conclusion of trial it is found by the trial Court that any circumstances appearing in evidence against the accused is lightly helpful towards his conviction then the court would not be competent to take the same in account without questioning him on that point so that accused may be able to explain his position properly . In para 20 of the impugned judgment the trial court relied on the alleged inquiry report of District Education Officer (DEO ) Pishin namely Syed Arif Shah. In paras Nos, 21 and 22 of the impugned judgment the trial court relied on statements of the absconding accused, which were allegedly recorded by the Director Education Department Balochistan upon directions of Service Tribunal, Balochistan during inquiry . In paras Nos, 23, 24 and 25 the trial court relied upon the specimen signatures of the accused and HR Forms. But the trial court did not put any question to the appellants/accused in respect of the above while recording their statements under section 342, Cr .P.C.
5. It is worthwhile to mention here that prosecution's case is that of forgery and misappropriation of the amounts allegedly committed by the appellants//accused, which is based on ocular as well as documentary evidence. The appellants were confronted with documentary evidence jointly , which confrontation shows that all the documentary evidence available on record was confronted to each of the appellants/accused irrespective of the fact, whether the documents were related to that accused or not. It is clear from record that the statement of accused was recorded under section 342, Cr.P.C. by the learned trial Court in a very stereotype manner . Relevant and very important incriminating pieces of evidence have not been put to the accused for their explanation/reply . Perusal of the statement of accused under section 342, Cr.P.C. further reveals that all the incriminating pieces of evidence brought on record were not put to the accused, when their statements were recor ded under section 342, Cr.P.C., enabling them to explain and reply the same, whereas the trial Court used such piece of evidence for convicting the accused. Under the law, if any piece of evidence is not put to the accused in his statement recorded under section 342, Cr.P.C, the same cannot be used for his conviction. Exactly same is the position in the cases in hand.
Reliance is also placed on the case of Muhammad Shah v. The State reported as 2010 SCMR 1009 , in which the Hon'ble Supreme Court has held as under: "11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross-examination for convicting him there by using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order , 1984. The perusal of statement of the appellant, under section 342, Cr.P.C., reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr. P. C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction.
In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained".
Reliance can also be placed on the case of Muhammad Nawaz and others v. The State and others reported as 2016 SCMR 267 , wherein the Hon'ble apex Court has observed as under:-- "6(c) ... There is yet another aspect of the case. While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence".
In another case of Qaddan and others v. The State reported as 2017 SCMR 148, the Hon'ble apex Court has held as follows: "3. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him."
6. Moreover , it has been further observed from the perusal of the record that statem ents under section 342, Cr.P.C. of the appellants have not been recorded in accordance with second part of section 364, Cr.P.C. which provides that Judge 'shall' certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. No doubt the statements of the appellants recorded under section 342, Cr.P.C. are available on record but the certificates appended thereto are not in the handwriting of the Presiding Officer. It is well settled that where an act was provided to be done in a particular manner it had to be done in that manner and if not done, the same could not be lawful.
7. In view of what has been observed herein above coupled with the dictum laid down by the Hon'ble apex Court in the cases referred to herein above, I am of the considered opinion that the learned trial Court while passing the judgment has committed illegality and violated the provisions of section 342, Cr.P.C. Consequently , the judgment dated 15.07.2010 passed by the learned trial Court is hereby set-aside. Case is remanded to the trial Court with direction to record statement of the appellants/accused under section 342, Cr.P.C. afresh by putting all incriminating pieces of evidence. A fair opportunity shall be provided to the appellants/accused for explanation/reply as well as to the prosecution. Thereafter , the learned trial Court shall pass the judgment afresh within a month after hearing both the parties, in accordance with law .
It may be observed here that appellants/accused were on bail prior to announcement of judgment, therefore, their enlargement on bail shall continue and the appellants/accused shall appear before the trial court on 02.08.2019.