ABDUL HAMEED BALOCH, J. Through this petition the petitioner has prayed as under: "It is, therefore, respectfully prayed that record of the case may kindly be called for and after examining the same, the order impugned herein dated 03.03.2021 passed by the learned Additional Sessions Judge-II, Quetta, be set aside and the application for making amendment in the statement of accused under section 342, Cr.P.C, be allowed, in the interest of justice, equity and fairplay."
2. Brief facts leading to filed the instant petition are that the respondent/accused was booked in case FIR No.22/2017, PS Airport Quetta, under Section 302, 324, 34, P.P.C. The accused was arrested and after completion of investigation, the challan was submitted before the Additional Sessions Judge-II, Quetta (trial court). After conclusion of prosecution witnesses, the trial court recorded the statement of accused under Section 342, Cr.P.C whereby they professed their innocence and opted to record their statements under Section 340(2), Cr.P.C. The accused persons got recorded their statements on oath as envisaged under Section 340(2), Cr.P.C, and produced two witnesses in their defence. Thereafter the complainant filed an application under Section 540, Cr.P.C, and prayed as under: "it is accordingly respectfully prayed that the representative of PHED department with inquiry report be summoned called/examined as Prosecution witness in the interest of justice, equity and fairplay. "
The learned trial court vide order dated 04.12.2020 allowed the application with the following observations: "9. In view of above discussion, instant application under Section 540, Cr.P.C. filed by the applicant/complainant is accepted and the representative of PHE Department be called through summon along with Departmental Inquiry Report, issued by Inquiry Officer, Sheryar Taj, Secretary, Government of Balochistan, Energy Department, Quetta. Application after completion be consigned to record.
Thereafter the complainant filed another application for making amendment in statement under Section 342, Cr.P.C. of accused Hazrat Ali. The trial court vide order dated 03.03.2021 rejected the application. Hence this petition.
3. The learned counsel for the petitioner stated that the inquiry report has been brought on record after examination of accused under Section 342, Cr.P.C. The trial court allowed the application of complainant/petitioner under section 540, Cr.P.C for calling inquiry report. The inquiry report was submitted, in result whereof incriminating evidence came on record. Under Section 342, Cr.P.C every incriminating piece of evidence must be put to accused. The learned trial court refused to re- examine the accused under Section 342, Cr.P.C. The learned counsel for the petitioner relied upon the following reported cases: 2020 SCMR 321 and 2007 MLD 599
4. Conversely the counsel for respondent/accused stated that the after close of prosecution witnesses the learned trial court recorded the statement of accused under Section 342, Cr.P.C. The accused also got recorded their statements on oath as envisaged under Section 340(2), Cr.P.C and produced defence witness, thereafter subsequently recording the statement of representative of PHE as C.W-1 cannot reopen the case for re-examination of accused under Section 342 Cr.P.C. He relied upon the following case laws: 2010 SCMR 1009, 2010 YLR 914 and PLD 2013 Sindh 214.
5. Heard. Perused the record. The record transpires that after close of prosecution witnesses, the accused were examined under Section 342, 340(2), Cr.P.C. and defence witnesses produced by them were also examined, whereafter the complainant filed an application under Section 540, Cr.P.C. for calling inquiry report, which was allowed. The CW-1 produced the inquiry report. The complainant filed another application for amendment in the statement under Section 342, Cr.P.C. of accused Hazrat Ali, which was rejected. It would be relevant to reproduce Section 342, Cr.P.C: "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 answers 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. "
6. Section 342, Cr.P.C, mandates that all incriminating evidence is put to accused. The purpose of enactment of Section 342, Cr.P.C, is to safeguard the interest of accused, enable him to explain the circumstances appearing against him in the evidence. The purpose of this provision is to enable the court to decide the question of guilt of accused. The object of referred section is that the attention of accused should be drawn to the evidence on which the prosecution claims that the case made out against the accused. All the incriminating piece of evidence available on record in examination-in-chief, cross-examination or re-examination of witnesses, are required to be put on accused, while recording his statement under Section 342, Cr.P.C. In this regard reliance is placed on the case of Muhammad Shah v. State 2010 SCMR 1009, whereby it has been held as under: "10. Now the question arises as to whether the defence taken in the cross-examination, which was abandoned by the appellant in his statement recorded under section 342, Cr.P.C., can be made basis for convicting him. It is important to note that cross-examination is conducted to test the credibility and veracity of the witnesses and several suggestions are given to the witnesses to create a doubt in their evidence. Thus any stand taken by the accused in the cross-examination is merely in the form of suggestion. This Court in several authorities has held that an accused can take several defence but that will not improve the prosecution case as the prosecution case stands on its own evidence. If the appellant had taken such defence in his statement under section 342, Cr.P.C. then it could have been validly taken into consideration. He had examined two defence witnesses to the effect that on the date; time and place of incident he was being abducted by the deceased and his companions. The defence witnesses did not state anything about scuffle between the appellant and the deceased. Even in the cross-examination, it has not specifically been suggested or shown as to who was armed with knife and caused injuries to the deceased. From the evidence, two interpretations are possible; one favouring to the accused and other to the prosecution. It is a well-settled principle of law that in such a situation, the interpretation favourable to the accused is required to be taken into consideration. Even otherwise, if the conviction is based solely on the statement of accused in absence of prosecution evidence then said statement is to be taken as a It hole and from that statement, if any offence is made out then the accused can be convicted for the said offence. Even if, we take into consideration the stand taken by the appellant in the cross-examination, it does not show that the accused had caused injuries to the deceased. Therefore, from the said stand also no offence appears to have been made out.
Consequently, the prosecution has failed to prove the case against the appellant.
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 thereby 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, 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 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.
7. The record reveals that the complainant after recording statement of accused under Section 342, 340(2), Cr.P.C. and defence witnesses, filed an application under sections 540, Cr.P.C. which was allowed. The representative of PHE recorded the statement as CW-1 and produced inquiry report. Under Section 540, Cr.P.C. the court has power to summon material witnesses at any stage of proceeding, examine any person or recall or re-examine any person already examined. The trial court has examined Hazoor Bakhsh, Section Officer, PHE Department, who produced the inquiry report. Meaning thereby Hazoor Bakhsh appeared and recorded his statement as witness. In Black Law Dictionary, the witness is defined as under: Witness.
1. One who sees, knows, or vouches for something, a witness to a testator's signature.
2. One who gives testimony under oath or affirmation (i) in person (ii) by oral or written deposition, or (iii) by affidavit, the witness to the signature signed the affidavit. A witness must be legally competent to testify.
"The term 'witness,' in its strict legal sense, means one who gives evidence in a cause before a court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceedings, and so incudes deponents and affiants as well as persons delivering oral testimony before a court or jury.
Every witness is an editor: he tells you not everything he saw and heard, for that would be impossible, but what he saw and heard and found significant, and what he finds significant depends on his preconceptions."
8. The referred witness recorded his statement. The order of accepting the application under section 540, Cr.P.C for producing the inquiry report by the representative of PHE department has not been challenged. The purpose of examining of accused is to enable him/them to explain any circumstances appearing evidence against him. On allowing the application under sections 540, Cr.P.C. the witness was examined, who produced certain documents. Under sections 342, Cr.P.C. the accused be allowed to explain his position in regard of evidence produced after recording his statement under section 342, Cr.P.C. The plain reading of section 342, Cr.P.C. shows no restriction to record the statement of accused after producing defence evidence. Even after closing the prosecution and defence side any evidence by the prosecution, the accused has a right to explain his position.
In view of above circumstances, the petition is allowed. The order dated 03.03.2021, passed by the Additional session Judge-II, Quetta is set-aside. The trial court is directed to re-examined the accused Hazrat Ali under Section 342, Cr.P.C. by making question in respect of inquiry report, which was produced by CW-1 and if the accused desires to produce the evidence, he may be permitted to produce defence evidence.