NAIMATULLAH PHULPOTO, J.---Appellant Muhammad Ramzan was tried by learned 'Ind. Additional Sessions Judge, Hyderabad in Sessions Case No.30 of 2007 for offence under section 302, P.P.C. On conclusion of the trial, vide judgment dated 11.12.2012 appellant was convicted under section 302(b), P.P.C. and sentenced to death, as Tazir'. Appellant was directed to pay compensation of Rs.2,00,000/- to be paid to the legal heirs of the deceased, in terms of section 544-A, Cr.P.C. Trial Court made reference to this Court for confirmation of death sentence, as required under section 374, Cr.P.C.
2. Brief facts of the prosecution case as reflected in the impugned judgment are as under:-- "On being sent up, after usual investigation, the accused has been tried for the offence punishable under section 302, P.P.C., with the allegations that on 31.12.2006 at 1710 hours, he called out Homeo Doctor Izhar Hussain from his house situated at Hashmi Colony Unit No.4, Latifabad, Hyderabad and within the sight of his sons Muhammad Zafaryab, Dawar Hussain and Abdul Rafay, he fired two shots from revolver at him. The same hit him at the chest and right hand as after first fire, he kept his hand on the chest, which passed through and through and took his life. The accused was arrested and he led the I.O. and got recovered the weapon, which he used in the commission of offence, besides six bullets (four live and two empties) in presence of mashirs."
3. After usual investigation, challan was submitted against the appellant under section 302, P.P.C.
Trial Court framed the charge against accused at Ex. 4, accused pleaded not guilty and claimed to be tried.
4. At the trial, prosecution examined I.O. prosecution witnesses. Thereafter, prosecution side was closed.
5. Statement of the accused was recorded under section 342, Cr.P.C. Ex.27, in which accused claimed his false implication in this case and denied the prosecution allegations. Accused declined to give statement on oath in disproof of prosecution allegations and did not lead any evidence in defence.
6. Trial Court after hearing the learned counsel for the parties and assessment of the evidence vide judgment dated 11.12.2012, convicted the accused under section 302(b), P.P.C. and sentenced to death as stated above. Trial Court made reference to this Court for confirmation of death sentence, as required by law. Hence, this appeal is filed.
7. The facts of this case as well as evidence produced before the trial Court finds elaborate mention in the judgment passed by the trial Court, therefore, is not reproduced here so that to avoid any duplication and necessary repetition.
8.Learned advocate for appellant, at the very outset, submitted that all the incriminating pieces of evidence were not put to accused for his explanation, but trial Court relied upon those pieces of evidence for convicting the accused to death. It is further submitted that serious prejudice has been caused to a him and omission on the part of the trial, Court, amounts to denial of a fair opportunity to the accused and it has vitiated the trial. In support of his contentions, he has relied upon an unreported judgment in Criminal Appeal No.292 of 2009 dated 28.10.2010 and the case of Abdul Qadir Fauji v. The State (2017 YLR 2284).
9. Learned D.P.G. as well as learned advocate for the complainant stated that report of the ballistic expert is available in the R & Ps, but the said report was not produced by the Investigating Officer when his evidence was recorded before the trial Court, and conceded to the contentions raised by learned Advocate for appellant, for remand of case to trial Court.
10. In order to appreciate the contentions raised by learned advocate for the appellant, we have carefully perused die statement of accused Muhammad Ramzan recorded under section 342, Cr.P.C. by the trial Court at Ex-27. For the sake of convenience, it is reproduced as under:-- "STATEMENT OF ACCUSED UNDER SECTION 342, Cr.P.C.
Q. No.1: You have heard the prosecution evidence. It has come in evidence that on 31.12.2006 at 1710 hours, inside main gate of complainant's house situated in Hashmi Colony Unit No.4 Latifabad, Hyderabad, you arrived and intentionally and knowingly committed Qatl-i-Amd of deceased Dr. Izhar Hussain Qureshi by 'causing fire arm injuries. What you have to say?
Ans: No, Sir it is false.
Q. No.2: It has also come in evidence that on 31.12.2006 at 2315 hours, you were arrested from protective bund katchi abadi Aliabad Colony Unit No.4 Latifabad Hyderabad in presence of mashirs under memo Ex.20/E. What you have to say?
Ans.
Sir I was arrested from my house. '
Q. No.3: It has also further come in evidence that 'on 05.01.2007 at 2100 hours, you voluntarily led the police party to a graveyard of Bhagries near bushes protective bund unit No.4 Latifabad and produced revolver loaded with four live bullets and two empty bullets, which was secured in presence of mashirs, under memo Ex.23/A. What you have to say?
Ans: No Sir. It is false. The revolver and bullets were foisted upon me by the police, at the instance' of complainant.
Q. No.4: Why PWs have deposed against you?
Ans.: All the PWs are relatives and friends and they have deposed falsely against me.
Q. No.5: Do you want to examine yourself on oath?
Ans: No Sir. Q.No.6: Do you want to examine witness in your defence?
Ans: No Sir.
Q.No.7: What else you want to say?
Ans: I am innocent and falsely implicated by the complainant with the collusion of police due to enmity.
I pray for justice.
Sd/-28.11.2012 IIND. ADDL. SESSIONS JUDGE HYDERABD.
11. From the perusal of statement of accused Muhammad Ramzan recorded under section 342, Cr.P.C., it transpires that following material questions/ incriminating pieces of evidence, were not put to the accused for his explanation/ reply:--
(1) Complainant and eye-witnesses deposed that deceased sustained fire arm injuries, post mortem examination was conducted, in which injuries by means of fire arm were certified and post mortem was produced, before the trial Court at Ex. 24/A, but question regarding this piece of evidence was not put to accused for his explanation.
(2) Revolver recovered on the pointation of the accused was sent to the ballistic expert and report was positive, unfortunately it is lying in the R & Ps, but it was not produced in evidence at trial, but said incriminating piece of evidence was not put to accused for his explanation in his statement under section 342, Cr.P.C.
12. Keeping in view the above lapses/ omissions on the part of trial Court while recording statement of accused under section 342, Cr.P.C., we have perused the judgment of the trial Court. Trial Court has relied upon the above pieces of evidence for recording conviction against the accused. It is the requirement of the law that all incriminating pieces of evidence available on record are required to be put to the accused as required under section 342, Cr.P.C. in which, 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 accused, under section 342, Cr.P.C., reveals that the portion of the evidence was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when accused led police to place where he had buried dead body. 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.
13. Learned Division Bench of this Court in the case of Habibullah alias Bhutto and 3 others v. The State (PLD) 2007 Karachi 68) remanded the case to the trial Court for re-trial from the stage of recording the statement of the appellants under section 342, Cr.P.C. and re-writing the judgment in accordance with law. Relevant portion is reproduced as under:-- "We have given our due consideration to the arguments, gone through the material placed on record and found that a defect in a recording the statement under section 342, Cr.P.C. of the appellants is curable unless it is shown that appellants have been prejudiced and a miscarriage of justice has occurred.
14. Honourable Supreme Court in an, unreported judgment in Criminal Appeal No.292 of 2009 dated 28.10.2010 in the case of Muhammad Hassan v. The State held as under:-- "3. In view of the order we propose to pass there is no occasion for going into the factual aspects of this case and it may suffice to observe that the case of the prosecution against the appellant was, based upon prompt lodging of the FIR, statements of three eye-witnesses, medical evidence, motive, recovery of weapon of offence and a report of the Forensic Science Laboratory regarding matching of some of the crime-empties with the firearm allegedly recovered from the appellant's possession during the investigation but we have found that except for the alleged recovery of Kalashnikov from the appellant's possession during, the investigation no other piece of evidence being relied upon by the prosecution against the appellant was put to the appellant at the time of recording of his statement under section 342, Cr.P.C.
4. It is by now a settled principle of criminal law that each and every material piece of evidence being relied upon by the prosecution against an accused person must be put to him at the time of recording of his statement under section 342, Cr.P.C. so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused person defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates- a trial. The case in hand is a case of murder entailing a sentence of death and we have truly been shocked by the cursory and casual manner in which the learned trial Court had handled the matter of recording of the appellant's statement, under section 342, Cr.P.C. which statement is completely shorn of the necessary details which were required to put to the appellant. We have been equally dismayed by the fact that even the learned Judges, of the Division Bench of the High Court of Sindh deciding the appellant's appeal had failed to take notice of such a glaring illegality committed by the trial Court. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely an irregularity curable under section 537, Cr.P.C. but the same was a downright illegality which had vitiated the appellant's conviction and sentence recorded and upheld by the learned Courts below."
15. In the case of Muhammad Nawaz and others v. The State and others (2016 SCMR 267)
Honourable Supreme Court of Pakistan has observed as under:-- "..........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."
15(sic) In the present case, learned trial Court has taken the matter lightly and awarded death sentence to the appellant without putting all the incriminating pieces of evidence at the time of recording of statement under section 342, Cr.P.C. We have noticed that report of the ballistic expert regarding the revolver used by the accused is lying in the R & Ps of the trial Court, but the said report was not produced the Investigating Officer during, the trial Court has relied upon that piece, of evidence while passing the judgment. Learned Advocate for the appellant has, also pointed out some other incriminating pieces of evidence with regard to the medical evidence, which were also not put to the accused at the time of recording 342, Cr.P.C. statement for his explanation. As such, appellant was prejudiced in his trial and defence. Therefore, a miscarriage of justice has occurred in the case. Procedure adopted by trial Court is an illegal procedure that cannot be cured under section 537, Cr.P.C. Thus, it has vitiated the trial. Hence, impugned judgment is liable to be set aside.
16. For the 'above stated reasons, by consent of learned advocates for parties the appeal is partly allowed, impugned judgment is set aside and case is remanded to the trial Court for re-trial. from the, stage of recording of the evidence of Investigating Officer for the purpose of production of the report of ballistic expert lying in R & Ps. It is made clear that a fair opportunity shall be provided to the defence counsel, for cross-examination of the Investigating Officer. Thereafter, statement of the accused will be recorded by the trial Court afresh in terms of section 342, Cr.P.C, in which all the incriminating pieces of evidence will be put to the accused for his explanation/replies. After hearing the learned advocates for the parties, the trial Court shall pass the judgment in accordance with law within two months under intimation to this Court.
17. In view of above, reference for confirmation of death is answered as negative.
18. At this stage, learned Advocate for the appellant submits that appellant is in custody since 2007, 'concession of bail may be extended to him. Appellant would be at liberty to apply for bail before the trial Court, the same shall be decided strictly in accordance with law.