AFTAB AHMED GORAR J.----Appellants Shah Murad alias Gulzar and Muhammad Bachal were tried by learned Additional Sessions Judge, Mirwah in Sessions Case No.228 of 2015 Re-State-V ersus Shah Murad and others, arising out of Crime No.96 of 2014, P.S, Faiz Gunj under Sections 302, 324, 337H(2), 147, 148, 149, P.P.C. and vide judgment dated 09.08.2019, appellants were convicted for offence under Secti on 302(b), P.P.C. and sentenced to imprisonment for life with fine of Rs.100,000/- each. Both the accused Shah Murad @ Gulzar and Muhammad Bachal also imposed compensation of Rs.10,00,000/- (Rupees Ten lacs) in terms of Section 544-A, Cr.P.C., to the legal heirs of deceased persons, in case of failure same shall be recovered as land revenue arrears. Both the accused also convicted under Section 365-B, P.P.C., for imprisonment for life (RI) and fine both the accused for Rs.50,000/- in failure to pay fine accused will suffer six months more imprisonment (S.D. The appellants were extended benefit of Section 382-B, Cr .P.C.
2. Charge against the appellants is that on 05.07.2014 at 23:30' hours in the house of complainant Shahnawaz Nindwani situated in deh Attar accused Shah Murad alias Gulzar and Muhammad Bachal along with absconding accused Rahim and Habibullah and three un-identified armed with deadly weapons in furtherance of their common object made unlawful assembly committed offence of rioting, made direct fire upon complainant party with intention to commit their Qatl-e-Amd and so also accused Shah Murad alias Gulzar in company of co-accused committed Qatl-e-Amd of Shoukat Ali son of complainant by causing him fire of rifle injuries and kidnapped Mst.
Basran daughter of the complainant. Consequently , above FIR was lodged.
3. Charge was framed against appellants , to which they pleaded 'not guilty' and claimed to be tried. At the trial, prosecution examined prosecution witnes ses and thereafter statements of appellants were recorded in terms of Section 342, Cr.P.C, to which they denied the prosecution allegations and claimed to be innocent. However , appellants did not opt to examine themselves on oath nor led any evidence in their defence.
3(sic) On the conclusion of trial, learned trial Court heard the counsel for the parties and after assessment of the evidence convicted and sentenced the appellants vide impugned judgment, hence the appellants preferred instant appeal through jail.
4. Facts of this case as well as evidence find an elaborate mention in the judgmen t of the trial Court, hence, there is no need to repeat the same.
5. At the very outset, learned counsel for the appellants, learned counsel appearing on behalf of the complainant as well as Deputy Prosecutor General jointly pointed out the following illegalities committed by the learned trial Court and prayed for remand of case to the trial Court.
There was a piece of evidence in the shape of preparation of inquest so also post-mortem reports of deceased. ii. Recovery of two empty shells of 44 bore, three empty shells of rifle 44 bore, four empty shell of Kalashnikov , six empty cartridges of 12 bore and seven empty shells of IT pistols as well as blood stained earth from the place of occurrence.
6. As regards to the above submission that the material piece of evidence being relied upon by the prosecution against the appellants was not put to them at the time of recording their statements under Section 342, Cr.P.C. For the sake of convenience, statement of one of the appellants recorded under Section 342, Cr.P.C., at Ex.23, is reproduced as under: Dated 08.08.2019 Ex. No:29 IN THE COUR T OF ADDITIONAL SESSIONS JUDGE, MIR WAH.
S.C No.228/ 2015 The State V / s Shah Murad @ Gulzr Nindwani and others.
Crime No.96/2014 P .S. Faiz Gunj. under section 302, P .P.C. etc. Name Shah Muhammad Father 's Name Muhammad Qasim Caste Nindwani Religion Islam Age About 40 Years Occupation Cultivation Residence Mir Nasrullah Khan Bijarani Taluka Tangwani Distt: Kashmore Kandhkot.
Examination of accused Q.No: 01 Whether evidence is recorded in your presence?
Ans: Yes Sir .
Q.No. 2 Whether you on or about 05.7.2014 at 2330 hours in the house of accused and absconding accused Rahim and Habibullah and three unidentified persons duly armed with deadly weapons in furtherance of your common object made unlawful assembly?
Ans: Yes Sir .
Q. No. 3 Why the PWs namely Shahnawaz, Afzal Ali, Khadim Hussain, Muhammad Janib, ASI Qurban Ali, SIP/1.0 Khan Muhamma d Shar, PC Muhammad Sayan, Khadim Hussain son of Ghulam Muhammad, Atta Hussain, complainant and PWs have deposed against you?
Ans: Due to matrimonial dispute.
Q. No.4. Why the documentary evidence in shape of memo, FIR, memo of arrest and recovery and other relevant material shall not be used against you as corroboratory piece of evidence?
Ans: Police managed.
Q.No.4. Do you want to examine yourself on oath?
Ans: No Sir .
Q.No.5. Why the evidence of Dr. Bashir Ahmed Sahito and post-mortem report shall not be used against you as corroboratory piece of evidence?
Ans: Foisted.
Q. No.6. Why the recovery so effected and shown by the police effected from your possession, shall not be used against you as incriminating material?
Ans: Foisted upon me.
Q.No.7. Whether you will give evidence on oath to disprove the charges allegations against you as provided by Section 340(2), Cr .P.C?
Ans: No Sir .
Q.No.8. Whether you had been remained absconder , if so, why and what is your explanation in this regard for your abscondence and why same shall be used against you as corroboratory piece of evidence?
Ans: Never Sir .
Q.No.9. Whether you will produce any evidence in your defence or claiming any witness to be examined in your defence?
Ans: No Sir .
Q. No.6. What you have to say anything else?
Ans: I am innocent and pray for justice Sd/ Dated: 08.08.2019 (Nazakat Addl. Sessions Judge, Mirwah
7. No doubt, joint questions with regard to documentary evidence in shape of memo, FIR, memo of arrest and recovery and other material so also evidence of Medical Officer, post-mortem report and recovery were put to the appellants but the same questions were not B specified as to the date of arrest and recovery from the accused on their pointation, empties from the spot coupled with report of FSL authorities that such weapons were in working condition etc. and the manner thereof. It is settled law that all the incriminating pieces of evidence brought on record by the prosecution ought to be put to the accused at C the time of recording his statement under Section 342, Cr.P.C., for the explanation/reply of the accused, as has been held by Hon'ble Supreme Court in an unreported judgment dated 04.03.2021, passed in Criminal Appeal No. 77 of 2020 in the case of Jan Muhammad v. The State. Relevant portion is reproduced as under: "5. It has been observed by us with concern that none of the afore-mentioned pieces of evidence has been put to the appellant while examining him under section 342, Code of Criminal Procedure. It has been laid down many a time by this Court that a piece of evidence produced by the prosecution against an accused if not put to accused while examining him under section 342, Code of Criminal Procedure cannot be used against him. The rationale behind it is that the accused must know and then respond to the evidence brought against him by the prosecution.
He (accused) must have firsthand knowledge of all the aspects of the prosecution case being brought against him.
It appears that even the learned Judge in chambers of High Court while reappraisi ng evidence available on record did not consider this aspect of the matter . Keeping in view the peculiar circumstances of the case, learned counsel for the appellant and learned Additional Prosecutor General, Sindh assisted by widow of deceased are in agreement that the 'matter needs to be remanded to the learned trial Court for re-recording statement of appellant under section 342, Code of Criminal Procedure while putting all pieces of prosecution evidence produced during trial to him, giving him an opportunity to know and respond to the same".
8. I have perused the judgment of the trial Court as well as evidence available on record and observed that during course of investigation, inquest report of deceased was prepared so also recovery of two empty shells of 44 bore, three empty shells 44 bore of rifle, four empty shell of Kalashnikov , six empty cartridges of 12 bore and seven empty shells of TT pistols as well as blood stained earth from the place of occurrence, therefore, it is also equally settled that a failure to comply with this mandatory requirement vitiates the trial. The case in hand is a case of murder entailing a sentence of death and I am shocked by the cursory and casua l manner , in which learned trial Court had handled the matter of recording of the appellants' statements under Section 342, Cr.P.C, which statements are completely shorn of necessary details which are required to put to the appellants. While respectfully relying upon above cited judgment of Hon'ble Supreme Court, I have no hesitation to hold that omissions on the part of the trial Court mentioned above were not merely irregularities curable under Section 537, Cr.P.C, but the same were downright illegalities which have vitiated the appellants' conviction and sentence recorded by the trial Court. Trial Court has rendered judgment in violation of statutory provisions of Section 367, Cr.P.C, as such it is not sustainable.
9. For the above stated peculiar circumstances of the case and by consent of leane d counsel for the parties, instant Crl. Jail Appeal No.S-170 of 2019 is partly allowed. Conviction and sentence recorded by the learned trial Court, vide judgment dated 09.08.2019 is set aside. The appellants shall be treated as under-trial prisoners. The case is remanded back to the trial Court with directions to record the statements of appell ants under Section 342, Cr.P.C., afresh by putting them all pieces of prosecution evidence, enabling them to know and respond to the same and shall decide the case after hearing the parties, within one month of the receipt of this judgment.
10. In the view of above, aforesaid Crl. Jail Appeal is disposed of in the above terms.