TARIQ SALEEM SHEIKH, J.---Through this appeal the Appellant, Muhammad Qasim, has assailed judgme nt dated 17.9.2009 passed by the learned Sessions Judge, Sahiwal, in case FIR No.315/2006 dated 4.7.2006 registered at Police Station Fareed Town, Sahiwal, for an of fence under section 302, P .P.C.
2. Brief facts of the case are that on 4.7.2006 Complainant Niaz Ahmad (PW-6) made a statement before Naseem Akhtar/SI (PW-9) to the effect that the same day at about 8:30 p.m. he was chatting with his brother-in-law Muhammad Aslam, brother Liaqat Ali in the courtyard of his house which was lighted by an electric bulb. His elder sister Meraj Bibi (deceased) along with her children and younger sister Naseem Akhtar (PW-7), who was married to Muhammad Qasim (the Appellant) three months back, had also come to his house to see their parents. In the meanwhile, the Appellant also came and asked his wife Naseem Akhtar to accompany him. The Complainant and Meraj Bibi asked the Appellant to take the lady after eight/nine days but he clutch ed her arm and forced his way towards the door. Naseem Akhtar resisted because she did not want to go with him at that time. The Complainant and Meraj Bibi intervened and freed her from his hold. The Appellant fumed with anger and left the house hurling threats of dire consequences. After a short while he came back with a .12-bore double barrel gun raising Lalkara that he would teach everybody a lesson for not letting him take his wife and started firing. He first shot at the Complainant which went amiss while the second hit Meraj Bibi on the chest and she fell down and died on the spot.
The Complainant and PWs Muhammad Aslam and Liaqat Ali tried to apprehend the Appellant but he managed to escape. Naseem Akhtar/SI (PW-9) reduced the said statement to writing at 9:30 p.m. and sent the complaint Ex.h.PF to the police station through Muhammad Sharif 895/C on the basis of which FIR No. 315/2006 (Exh.PF/1) was registered at 9:50 p.m.
3. The investigation of this case was also entrusted to Naseem Akhtar/SI (PW-9). He reached the crime scene, prepared Injury Statement Exh.PB, Inquest Report Exh.PC and despatched the corpse to the mortuary for autopsy under the escort of Nadeem Asghar 740/C (PW-3). Then he prepared rough site plan of the place of occurrence Exh.PK. During spot inspection he collected blood-stained earth from the point where the corpse was lying and secured it vide Recovery Memo Exh.PH. He found two empties P-5/1-2 there which he took into possession vide Recovery Memo Exh.PG. After the postm ortem examination was done Nadeem Asghar 740/C (PW-3) produced before him the last worn clothes of the deceased, including Shalwar P-1, vest P-2, Dupatta P-3 and shirt P-4, along with a sealed parcel Containing pellets which he seized vide Recovery Memo Exh.PE. On 10.7.2006 Naseem Akhtar/SI (PW-9) got prepared scaled site plan Exh.PD and Exh.PD/1 from Draftsman Zahid Ali (PW-2). On 14.7.2006, he arrested the Appellant and obtained his physical remand during which the latter got recovered .12- bore gun P-6 along with eight live cartridges P-7/1-8 which he secured vide Recovery Memo Exh.PJ. On conclusion of investigation he found that the Appellant had committed the offence. Report under section 173, Cr.P.C. was submitted accordingly .
4. On 22.9.2006, the learned Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial.
Thereupon he called upon the prosecution to produce evidence which examined nine witnesses.
5. In his statement under section 342, Cr.P.C. the Appellant contended that the case against him was false and concocted. He maintained that Naseem Akhtar did not refuse to accompany him. Rather her brother Niaz Ahmad (PW-6) was adamant that she should stay with his family overnight but when she insisted on going he got infuriated, took out his double barrel gun and fired at him. However , he escaped a hit because Meraj Bibi rushed and shielded him. The Appellant further stated that Naseem Akhtar was not the eye-witness of the incident because when things were heating up she left the courtyard and bolted herself in a room. He did not opt to make statement on oath under section 340(2), Cr.P.C. but examined Mian Muhammad Hassan Ramay , Advocate (DW-1), in his defence.
6. On conclusion of the trial, vide judgment dated 17.9.2009, the learned Sessions Judge convicted the Appellant under section 302(b), P.P.C. and senten ced him to imprisonment for life with a direction to pay Rs.50,000/- as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in default thereof to undergo simple imprisonment for a further period of six months. Benefit of section 382-B, Cr.P.C. was, however , extended to him.
7. In support of this appeal learned couns el for the Appellant contended that the prosecution had failed to prove its case against the Appellant beyond doubt. The learned trial Court did not appraise the evidence properly which had caused serious miscarriage of justice. He argued that, firstly , the ocular account furnished by Complainant Niaz Ahmad (PW-6) and Naseem Akhtar (PW-7) was not trustworthy . The said witnesses contradicted each other on material points. Secondly , the ocular account was in conflict with medical evidence. Thirdly , no crime weapon was recovered from the Appellant. Gun P-6 was foisted on him by the police in conniva nce with the complainant party .
Fourthly , the motive was not proved. Lastly , the Appellant's statement recorded under section 342, Cr.P.C. was deficient in material particulars. He was not confronted with Postmortem Report Exh.P A, Pictorial Diagram Exh.P A/1, Corrigendum Exh.P A/2, Injury Statement of the deceased Exh.PB and Inquest Report Exh.PC so he could not explain his position in respect thereof and was thus prejudiced. The learned counsel prayed that the Appellant's appeal be accepted and he may be acquitted of the charge.
8. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the Complainant, controverted the above contentions and supported the impugned judgment. He argued that there was no material contradiction in the depositions of the prosecution witnesses. According to him, they were reliable and inspired confidence and were fully corroborated by medical evidence, motive and recovery of gun P-6. During investigation the police also found that the Appellant had murdered Meraj Bibi. He contended that the trial Court had rightly convicted and sentenced him. He prayed that the Appellant's appeal be dismissed.
9. Arguments heard. Record perused.
10. The Appellant was accused of launching murderous assault on his brother- in-law Niaz Ahmad (PW-6) and murdering his sister-in-law Meraj Bibi within the remit of Police Station Fareed Town, Sahiwal, on 4.7.2006 at about 8:30 p.m. During the trial the prosecution examined nine witnesses to prove the charge. The ocular account was rendered by Complainant Niaz Ahmad (PW-6) and Naseem Akhtar (PW-7) while medical evidence was furnished by Lady Dr. Shagufta Waseem (PW-1). Niaz Ahmad (PW-6) also testified about recovery of weapon of offence at the instance of Appellant. The Investigatin g Officer, Naseem Akhtar/SI (PW-9), gave the details of his investigation and the evidence he collected in this case. The remaining witnesses were formal in nature. In documentary evidence, the prosecution inter alia adduc ed reports of the Chemical Examiner Exh.PL, the Serologist Exh.PM and the Forensic Science Laboratory Exh.PN.
11. Lady Dr. Shagufta Waseem (PW-1), who conducted autopsy of Meraj Bibi on 5.7.2006, found the following injuries on her body:
1. A firearm entry lacerated wound of 3.5 cm x 2 cm on the medial side of left breast on left areola going deep and fat tissue coming out of it.
Firearm exit lacerated wound of 1/2 cm x 1/2 cm on the back of left side of chest . Three Chharras (pellets) were removed from Injury No.2. On exploration cartridge (Cartoos) removed from Injury No.1, fracture of the 4th rib.
12. The Medical Officer deposed that Meraj Bibi's pleura was injured and her lungs, pericardium and heart were ruptured and thorax cavity was full of blood. In her opinion, both the injuries mentioned above were ante-mortem and inflicted by firearm and Injury No.1 was the cause of her death in the ordinary course of nature. She adduced her Postmortem Report and Pictorial Diagram as Exh.P A and Exh.P A/1 respectively and added that she also made endorsements on the Injury Statement of the deceased Exh.PB and Inquest Report Exh.PC. Dr. Shagufta Waseem further deposed that in Postmortem Report Exh.P A she wrote that in her estimation the probable time between injuries and death of the deceased was within minutes and between her death and postmortem was 30 hours.
However , on 14.7.2006, she issued a corrigendum Exh.P A/2 in which she stated that the time between death and postmortem was six hours. One of the grounds on which the Appellant has challenged his conviction and sentence is that the learned trial Court did not confront him with Exhibits PA, PA/1, PA/2, PB and PC when it examined him under section 342, Cr.P.C. which had prejudiced him. In order to appreciate this contention it is necessary to see what section 342, Cr .P.C. enacts.
13. Section 342, Cr .P.C. reads as under:
342. Power to examine the accused .---(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary , and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Court may draw such inference from such refusal or answer as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by subsection (2) of Section 340 no oath shall be administered to the accused.
14. The above section consists of two parts. The first part ordains that at any stage of inquiry or trial the Court may, without previously warning the accused, put him questions to elicit his explanation in respect of any evidence brought against him. On the other hand, the second part casts a duty on the Court to question him generally on the case after the prosecution witnesses have been examined and before he is called on for his defence. The salient features of the statement under section 342, Cr .P.C. may be summarized as follows: a) This statement is recorded without oath; b) The accused cannot be punished for refusing to answer the questions or for giving false replies; c)The Court may take into consideration the answers given by the accused while ruling for or against him.
15. Section 342, Cr.P.C. is rooted in the principle audi alteram partem. In Abdus Salam Mona v. The Crown (PLD 1955 FC 129 ) the Federal Court observed: "It is wholly against the provisions of the Criminal Procedure Code as well as the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply ."
The above view was reiterated in Atta Muhammad and 2 others v. The State (1994 PCr.LJ 181), Asif Ali Zardari and another v. The State (PLD 2001 SC 568), S.A.K. Rehmani v. The State (2005 SCMR 364), Ashiq Ali v. The State (2005 PCr.LJ 48) and Muhammad Mumshad Nadeem and another v. The State (2015 YLR 663).
16. The examination of the accused under section 342, Cr.P.C. must relate to the evidence and the circumstances which are brought against him by the prosecution during the trial. It is not an inane formality but has to be carried out in the interest of justice and fair play. In Abdul Wahab v. The Crown (PLD 1955 FC 88) the Federal Court observed: "The opening words of section are very important. It is 'for the purpose of enab ling the accused to explain the circumstances appearing in evidence against him' that his examination is needed. Where 'the circumstances appearing in evidence against him' are not put to the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality , but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. It should not, however , be overlooked that the real object of section 342 is not to subject the accused to a detailed cross- examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adve rse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation if he has any ."
17. Similarly , in S.A.K. Rehmani's case (supra), the Hon'ble Supreme Court of Pakistan explained: "The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however , not intended merely for his benefit. It is part of a system for enabling the Court to discover the truth, and it constantly happens that the accused's explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however , be injurious to him if no explanation or a false or unsatisfactory explanation is given."
18. Reference may also be made to Sarkar on Criminal Procedure ( 7th Edition) which writes (at p.939 ): "The examination of the accused is a very important duty which should be performed with particular care and in the proper way. There are a very large number of decisions on this question and many of them show that the examination was either very unsatisfactory with only a few formal questions of a general nature or it was of the nature of cross-examination or inquisition. The section is intended mainly for the benefit of the accused and also to help the court in finding the truth. The principle on which it is based is that before the damaging points in the prosecution evidence are used against the accused for determining his guilt, it is essential that his pointed attention should be drawn to them one by one avoiding the form of cross-examination in order to afford him an opportunity of giving an explanation consistent with his innocence."
19. It is by now well settled that every incriminating evidence or circumstance that is sought to be used against an accused must be put to him under section 342, Cr.P.C. Any piece of evidence with which he is not confronted cannot be considered against him for recording a conviction. Reference may be made to the cases reported as Sheral alias Sher Muhammad v. The State (1999 SCMR 697), Muhammad Shah v. The State (2010 SCMR 1009 ), Qaddan and others v. The State (2017 SCMR 148), Muhammad Siddique v. The State (2018 SCMR 71) and Imtiaz alias Taj v. The State and others (2018 SCMR 344). However , the question is whether every omission would vitiate the trial. One view is that it would in all eventualities but the other set of decisions lay down that trial would be vitiated only if the omission to examine (or erroneous or perfunctory examination) has caused prejudice or a failure of justice. Nevertheless, the preponderance of opinion supports the latter view. In Shivaji Sahebrao Bobade and another v . State of Maharashtra (AIR 1973 SC 2622) the Supreme Court of India ruled: "It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However , where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused."
20. In a subsequent case cited as Nar Singh v. State of Haryana [(2015) 1 SCC 496] the Supreme Court of India again observed: "The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of section 313, Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him.
Merely because of defective questioning under section 313, Cr.P.C., it cannot be inferred that any prejudice had been. caused to the accused, even assuming that some incriminating circumstanc es in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under section 313, Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused."
21. The Supreme Court of Pakistan discussed the aforesaid issue in a number of cases. The latest is S.A.K.
Rehmani's case (supra), in which it ruled: "We have also adverted to the question that what should be the impact of non-compliance of the provisions as contemplated in section 342, Cr.P.C. We have thrashed out all the most entire precedent law: PLD 1969 Peshawar 12, 1969 SCMR 416, PLD 1960 Lahore 822, PLD 1960 Lahore 547, AIR 1962 SC 1229, AIR 1961 SC 175, AIR 1960 Raj. 80, AIR 1954 SC 692, AIR 1956 SC 731, AIR 1954 SC 660, PLD 1956 Lahore 174, PLD 1957 SC (Ind.)
133, ILR (1956) 2 All. 127, 1954 FCR 223, AIR 1961 SC 175, AIR 1960 Raj. 80, AIR 1954 SC 692, DLR FC 123, DLR FC 139, and judicial consensus seems to be that 'every error or omission amounting to non-compliance with the provisions of this section does not necessarily vitiates the trial; such errors fall within the category of curable irregularities and the question whether the trial is vitiated, in each case depends upon the degree of the error and upon the question whether prejudice has been or is likely to have been caused to the accused'. It must not be lost sight of that 'every defect or error in the examination under section 342, Cr.P.C. would not be consequential unless it is shown that prejudice has been caused and moreso, the nature of prejudice must be stated'. AIR 1960 Rajastan 80, AIR 1956 SC 536, AIR 1956 SC 241. There is no cavil with the proposition that 'there must be proof of prejudice to the accused and unless miscarriage of justice is shown to have occurred, particularly in a case where the accused was represented by counsel, inadequate examination under S. 342 cannot be made a ground for setting aside the conviction.' 21 DLR 377, PLD 1955 Dacca 68 , AIR 1961 Calcutta 240 and AIR 1956 SC 536."
22. From the above discussion it follows that the appellate court has to examin e all the incriminating material produced by the prosecution and see what damning piece of evidence or circumstance has not been put to the accused and its impact on the fate of the case. Similarly , it would determine whether the questions put to him were in accordance with law and he was not misled by any of them. If it comes to the conclusion that non-compliance with the provisions of section 342, Cr.P.C. has prejudiced the accused it may remit the matter to the trial Court for retrial from the point where the irregularity occurred, that is, from the stage of questioning the accused under section 342, Cr.P.C. The trial Court would then examine the accused again and record the defence witnesses, if any, and decide the matter afresh.
23. A careful study of the decided cases would reveal that even where the court took exception to non-compliance of section 342, Cr.P.C. the accused was acquitted "not solely on account of the fact that not all material had been put to him whilst recording his 342, Cr.P.C. statement but for a host of other legal infirmities in issue" in those cases. Reference in this regard may be made to a Division Bench judgment of the Sindh High Court in Mohammad Bilal v. The State (2019 MLD 1291 ) and also to Bashir Ahmad and 2 others v. The State (PLD 2008 Lahore 146) and Habibullah Khan and another v . The State (1989 PCr .LJ 1555).
24. Reverting to the case in hand, it is observed that medical evidence is vital for confirmation of the ocular account. Medical evidence furnished by Dr. Shagufta Waseem (PW-1) and Documents Exhs.P A, PA/1, PA/2, PB1 and PC formed an essential part of the prosecution case and the learned trial Court has relied upon them while recording conviction against the Appellant although he was not confronted with them during his examination under section 342, Cr.P.C. In the circumstanc es, the Appellant has been prejudiced and miscarriage of justice has occasioned. The lapse is by the trial Cour t which can be rectified by remanding the case to it. Since I am remitting the matter , I have not adverted to other contentions raised at the bar by the learned counsel for the Appellant.
25. For what has been discussed above this appeal is accepted and the impugned judgment dated 17.9.2009 convicting and sentencing the Appellant is set aside. The case is remanded to the learned Sessions Judge, Sahiwal, for retrial from the point where the irregularity occurred, i.e. from the stage of questioning the Appellant under section 342, Cr.P.C. with the direction to put all incriminating pieces of evidence to the Appellant for his explanation, including medical evidence. Thereafter he shall record the testimony of any defence witnesses that the Appellant may like to examine and decide the case on merits in accordance with law. All this shall be done within 30 days from the receipt of this judgment. Office shall send the record to him immediately . Even at the cost of repetition it is made clear that the prose cution evidence already recorded shall remain intact and nothing in this judgment shall be construed to annul it. This Court is competent to make an order for retrial and issue directions as aforesaid in view of the law laid down in Muhammad Nawaz alias Muhammad and 6 others v. The State (1991 PCr.LJ 156) and Ch. Abdul Majeed v. The State (2004 YLR 747). It is not out of place to mention here that in Nar Singh 's case (supra), the Supreme Court of India categorically held that such remand cannot be condemned as it does not amount to filling up lacuna in the prosecution case.
26. The sentence of the Appellant was suspended by this Court vide order dated 3.5.2012 passed in Crl. Misc.
No.1/201 1. Inasmuch as his conviction and sentence has been set aside, he is admitted to bail till the fresh decision of his case subject to his furnishing bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court. After the fresh judgment is delivered, he would be dealt with in terms thereof.
27. Before parting with this judgment, I take the opportunity to highlight another important issue. Generally , the Presiding Officers of the trial Courts do not record the statement of accused under section 342, Cr.P.C. themselves and do not examine them personally . A questionnaire is prepared by the public prosecutor or the complainant's counsel which is handed over to the defen ce counsel who drafts its reply on behalf of the accused and the same is then placed on the file. This practice is contrary to letter and spirit of the Code. This examination is a matter entirely between the accused and the Court and the legal advisers do not come in or count in it at all. The Court should thus put them aside, have the accused brought before it face to face and hear him from his own mouth. In Faqir Singh v . Emperor (AIR 1930 Lahore 166) this Court ruled: "It is hardly necessary to point out that the Court alone is authorized to examin e the accused person and the counsel for the complainant or the prosecution should not be allowed to take part in the examination. The law allows the Court and not the complainant to put questions to the accused and the object with which the examination is to be conducted, is clearly stated in the statute viz.: to enable the accused to explain any circumstances appearing in the evidence against him."
Again, in Nana Sadoba and others v . Emperor (AIR 1938 Nagpur 283) it was held: "The examination of the accused contemplated by S. 342 Criminal P.C. is one by the Judge direct, without any intervention of counsel."
Similarly , in Md. Yasin and others v . The State (AIR 1954 Patna 437) the Court observed: "The real purpose of examination of an accused under S. 342 of the Code is for the Court to explain to the accused the circumstances appearing against him on the evidence and to enquire of him as to what he would like to say about them. It was never intended by the legislature, I am sure, that the Court should not frame its questions on its own initiative but should depend upon questions to be supplied to it by the prosecution. Furthermore, it has been understood for many years that an examination of an accused person under S. 342 of the Code is not to be a cross-examination of the accused, nor was it ever intended that the examination at the instance of the prosecution should be to supply answers in order to fill in a lacuna in the evidence. Where a Court puts questions to the accused at the instance of the prosecution it could not be said that the accused were unreasonable in apprehending that they would .not have a fair trial at the hands of that Court."
More recently , in Syed Rafi Haider Zaidi v. The State (1999 YLR 70), the Karachi High Court reiterated the above view holding as under: "Only Presiding Officer of the Court is competent and required by law to examine the accused. The counsel for the complainant and that of prosecution as well as of accused have no locus standi in this respect and they are not competent to take part in this examination as the matter is exclusively in between the Court and accused. However , after the close of examination if parties to proceedings feel that material part of the evidence was not put to the accused they can bring to the notice of the Court any such omission, and Court can re-examine the accused in order to meet the ends of justice."
28. In view of the foregoing, the Registrar of this Court is directed to send copies of this judgment to all the Sessions Judges and Special Courts in the province with a direction to ensure that the statements of the accused under section 342, Cr.P.C. in all criminal trials are recorded in accordance with law discussed above. In the instant case too the learned Sessions Judge shall comply with this direction. Section 313 of India's Code of Criminal Procedure, 1973. It correspondents to section 342 of Pakistan's Code of Criminal Procedure, 1898.