ABDUL MOBEEN LAKHO, J.---Muhammad Sharif and Muhammad Shahriyar along with co-accused Zobia were tried by learned 1st Additional Sessions Judge/Model Criminal Trial Court (MCTC) Karachi Central. Appellants Muhammad Sharif and Muhammad Shahriyar were found guilty vide Judgment dated 25.04.2019, both\the appellants were convicted under section 302(b), P.P.C. and were sentenced to death as Tazir. Appellants were also directed to pay Rs.400,000/- each to the legal heirs of deceased Danish. In case of default, they were ordered to S.I for three months more. Learned trial court while extending benefit of doubt acquitted accused Mst. Zobia, however , the case against absconding accused namely Mst. Zaitoon Bibi and Mst. Razia was ordered to be kept on dormant file, till their arrest. Trial court has made Reference to this court for confirmation of death sentence or otherwise.
2. Brief facts giving rise to this appeal, as narrated in Statement recorded by comp lainant Danish son of Arif under section 154, Cr.P.C. are that on 11.08.2015 he along with his brother Tabish went to the house of his in-laws situated at TTC College, Block C, North Nazimabad, Rangers Head Quarters, in order to pick up his son Shahmeer aged about 4 years, his brother remained outside the house. Complainant Danish entered the house, where his in- laws Muhammad Sharif, Muhammad Shahriyar , his sister in-law Mst. Zobia, his mother in-law Mst. Zaitoon and his ex-wife Mst. Razia were present. Complainant Danish informed them that he has come to take his son, further informed them that he wanted to contract second marriage, on which the accused persons started to abuse and told him to leave, arguments were frequent between him and his wife which also also flared up the situation. They told him that the divorce pronounced due to altercation has no effect and they have obtained FATWAS on this and Mst. Razia (ex-wife of complainant Danish) will reside with him. (Complainant furthe r disclosed that his wife used to take out money that belonged to him and his brothers, and she used to steel mobile phones from his house.
Whenever he visited the house of his in-laws, his brothers-in-law beat him up due to which he was worried). On 11.08.2015 at about 1645 hours, when he went to his in-laws house to take his son, he disclosed that he wanted to contract a second marriage, on which, the said accused used abusive language, when he was about to return back for their house, his brother in law namely Sharif and Shaharyar threw petrol on him and set him on fire. He made cries meanwhile his brother Tabish, who was standing outside of the said house, came into the house and rescued him by throwing water , on him. The said culprits used abusive language with his brother too. His brother took him to Abbasi Shaheed Hospital then to Civil Hospital, Karachi. According to complain ant, his in-laws namely Sharif, Sheharyar , Zobia, Zaitoon Bibi and his ex-wife Razia wanted to kill him by setting him on fire. Later on complainant Danish succumbed to the injuries and died during treatment.
3. Thus FIR was lodged under sections 324, 504, 34, P.P.C. initially , later on during investigation on 17.08.2015, complainant Danish has died in the Burns ward Civil Hospital, Karachi, thus section 302, P.P.C. was added by the investigation of ficer in challan.
4. During investigation accussed Muhammad Sharif, Shaharyar Mst. Zobia were arrested while accused Mst.
Zaitoon Bibi and Razia were shown as absconders. After usual investigation challan was submitted against the accused under the above referred sections.
5. After completion of the formalities against the absconding accused, a formal charge was framed against accused Muhammad Sharif, Muhammad Shaharyar and Mst. Zobia at Ex.3, to which they pleaded not guilty and claimed trial.
6. At trial prosecution examined six witnesses, who produced the relevant documents. Thereafter , prosecution side was closed.
7. Statements of accused were recorded under section 342, Cr.P.C., in which accused claimed false implication.
Accused did not lead defence and declined to give evidence on oath. Trial court after hearing the learned counsel for the parties and assessment of evidence convicted and sentenced the appellants Muhammad Sharif and Muhammad Shaharyar to death and acquitted co-accused Mst. Zobia. Trial Court has made Reference to this court for confirmation. Thereafter , appellants have filed the above appeal against the impugned judgment.
8. At the time of arguments, the learned counsel for the appellants at the outset argued that the trial court has committed illegality while recording the statements of the appellants under section 342, Cr.P.C. which is not curable. He submitted that prosecution has heavily relied upon dying declaration of the deceased as well as 164, Cr.P.C. statement of P.W Tabish and trial court has based conclusion on such piece of evidence, but said incriminating piece of evidence has not been put to the appellants in their statements recorded under section 342, Cr.P.C. Learned counsel for the appellants further argued that motive for commission of offence was custody of the minor (son of the deceased) aged about 04 years who was in the custody of the accused persons at the time of the incident and that piece of evidence, though on record, but was not questioned in their statements under section 342, Cr.P.C. It amount to the appellants being condemned unheard. He further argued that dying declaration was not in line with the guideline provided in various judgments passed by the Hon'ble Supreme Court. He, therefore, prayed for remand of the case to enable the appellants to explain their position before he trial court. In support of his contentions relied upon the case of Muhammad Shah v. The State reported in (2010 SCMR 1009 ) and Qaddan and others v . The State (2017 SCMR 148 ).
9. Mr. Muhammad Iqbal Awan, learned D.P.G. for the State conceded to the contention raised by the learned advocate for the appellant that neither material piece of evidence with regard to the dying declaration of the complainant as well as 164, Cr.P.C. statement of P.W Tabish recorded before the Magistrate had been put to the accused, nor any question regarding motive was put in their statements record ed under section 342, Cr.P.C.
Learned D.P .G. further argued that trial court has committed illegality and that is not curable.
10. We have 'carefully heard learned counsel for the appellants learned D.P.G. for the State and perused the record.
11. In order to appreciate contention of learned counsel for the appellants, it would be necessary to go through section 342, Cr .P.C., which 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.
12. 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 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.
13. In the present case, admittedly , FIR was lodged by the complainant/deceased Danish himself while he was under treatment at Burns Ward of Civil Hospital Karachi, before ASI Muhammad Younus Alam which has been believed and acted upon in convicting the appellants although their attention to this crucial piece of evidence was not drawn to and no explanation thereof was sought from them at the time of their examination under section 342, Cr.P.C. We have further gone through the record and it appears that no question as to 164, Cr.P.C. statement of P.W Tabish was recorded before the Judicial Magistrate and or motive for commission of offence was custody of the minor (son of the deceased) aged about 04 years who was in the custody of the accused persons at the time of the incident was asked. It is, by now, well-settled that an accused person has to be given an opportunity , under the law to explain the evidence on which his conviction is sought 'to be or going to be based. This is a mandatory requirement under section 342, Cr.P.C., which could not be ignored. It is wholly against the provisions of Criminal Procedure Code and principle of natural justice that a person/accused should be convicted on the basis of something of which he was not given notice and to which he was never required to give explanation.
14. In the peculiar circumstances of the case, we are convinced that failure on the part of the Court to draw the attention of the accused/ appellants to the dying declaration as well as statement of P.W Tabish recorded under section 164, Cr.P.C., before the Judicial Magistrate, which have been used against them and have also acted upon, has caused prejudice to them and has also resulted in miscarriage as well as failure of justice, and as such, it is a case of an illegality . Had the appellants been given any opportunity to explain such important pieces of evidence, they might have given some plausible explanation or might have led some evidence to rebut and meet the same.
The question of prejudice is one of the inference from the facts and circumstances of each case and also depends upon the degree of error. Since the alleged dying declaration as well as statement of P.W Tabish under section 164, Cr.P.C. and motive, which were undoubte dly important incriminating evidence have virtually influenced the m4nd of the trial Court in reaching at the conclusion of the guilt of the appellants, therefore, it cannot be said that the omission to question them regarding such pieces of evidence was without slightest effect upon the course of justice in this case or that it had not caused any prejudice to the accused. It is not a mere formality but is an essential part of the trial that the accused should be given notice of the point /points which he must meet in order to exonerate himself. Rightly , reliance has been placed upon the case of Muhammad Shah v. The State reported in 2010 SCMR 1009 , wherein it is held as under:- "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 thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidenc e, 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-ch ief are put 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, cross-examination 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 one 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 in the above portion of the evidence against him, but also convicted him on such piece of evidence which cannot be sustained."
15. In case of Qaddan and others v . The State (2017 SCMR 148 ) it is observed as follows:- "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."
16. In the above circumstances, learned counsel for the appellants as well as D.P.G. prayed for remand, back for the case to go to the trial court for trial of appellants afresh in accordance with law except accused Mst. Zobia, who has already been acquitted earlier .
17. For the above stated reasons appeal is allowed. The conviction and sentence awarded to the appellants vide Judgment dated 25.04.2019 are set-aside. The Reference for confirmation of death sentence awarded to the appellants namely Muhammad Sharif and Muhammad Shaharyar is answered in negative. The case is remanded back to the trial court with direction to record statement under section 342, Cr.P.C. afresh by putting all the incriminating pieces of evidence to the accused. Thereafter , trial court shall pass the judgment after hearing both the parties in accordance with law . The trial court is further directed to decide the case within 03 months.