1. ' Appellants Nawab Chandio and Ghulam Rasool were tried for the offences punishable under sections 394, 302 and 307 of P.P.C. By Special Judge, Special Court for Speedy Trial Hyderabad, who under his judgment dated 8-1-1989 convicted the appellants for the offences punishable under sections 394, 304, Part I and 307, of P.P.C. The appellants were sentenced to suffer imprisonment for life and to pay fine of Rs,5,000 or to suffer further R.I. For one year for the offence punishable under section 394 of P.P.C. They were further 21atenced to suffer life imprisonment and to pay a fine of Rs,5,000 or to suffer further R.I. For one year, for the offence under section 304 Part-I of PPC. They were also sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs,1,000 or to suffer further R.I. For one year, for the offence punishable under section 307 of P.P.C. The appellants have challenged their conviction and sentence.
2. ' According to the prosecution on 12-5-1988 at about 9-30 p.m. Deceased Hussain Bux closed his shop at Badin Town and was going to his house with his son P.W. Wajid Ali and his nephew Monawwar Hussain. He was carrying a bag containing cash of Rs,4,350. On his way to house, Hussain Bux was fired at by the two appellants. He received firearm injuries. In the meantime a police party consisting of S.I.P. Sher Ali, A.S.I. Chulam Murtaza and some private persons chased the appellants who took to their heels after injuring Hussain Bux and after depriving him of his cash bag the Police party succeeded in catching the appellants at a place near the factory of Rafique Memon. The robbed cash and two pistols were secured from the appellants under a Mashirnama.
3. Before being caught the appellants had also fired at the Police party. Police registered the case on complaint of Monawwar Hussain and took up investigation. Hussain Bux was referred to Dr. Mohammad Suleman who examined his injuries and referred him for further treatment to L.M.C.
4. Hospital Hyderabad where he was examined by Dr. Toufique Ahmed, who found him in a very serious condition and gave him the required treatment. The injured was admitted in L.M.C. Hosiptal on 14-5-1988 and thereafter he was referred to Neuro Surgeon at Karachi. After due investigation S.H.O. Masu Khan challaned the appellants.
5. ' Learned trial Court framed charge for the offences punishable under sections 394, 302 and 307 of PPC and examined 11 witnesses from prosecution side and 4 witnesses from the defence side, besides recording the statements on oath of the appellants. After all this, learned trial Court under the impugned judgment dated 8-1-1989 convicted the appellants and awarded them sentences as mentioned above. Hence this appeal.
6. ' Mr. Madad Ali Shah, learned counsel for appellant Nawab pointed out various illegalities allegedly committed by learned trial Court. It was argued that the trial Court had adjourned the case from 10-12-1988 to 15-12-1988 but framed the charge against the appellants on 13-12-1988 which was not the date of hearing. It was further argued that plea of each appellant was not recorded separately as required by law and that joint plea of both the appellants was recorded and that the plea was not recorded in the words actually used by the appellants and that the charge which was written in English was not explained and interpreted to the appellants in Urdu which was language of the appellants who did not understand English. Mr. Madad Ali Shah further argued that the statements of the appellants under section 342 of Cr.P.C. Were not recorded according to law inasmuch as the mandatory provisions contained by section 364 of Cr.P.C. Were not followed and learned trial Court did not append his certificates below the statements as required by law. On merits learned counsel for the appellant Nawab argued that there was nothing on record to show that Hussain Bux died on 3-7-1988 in consequence of the injuries received by him on 12-5-1988, as there was no post- mortem report in respect of the dead body of Hussain Bux and that Dr. Mohammad Suleman Ex. 7 as well as Wajid AR s/o Hussain Bux had stated that Hussain Bux had died on 3-7-1988.
7. Mohammad Suleman Ex. 7 said that Hussain Bux died in his presence in the Hospital while Wajid AR Ex. 4 said that Hussain Bux died at his house. It was further argued that there was no independent eye-witness against the appellants and that the crime empties were sent to the ballistic expert after a long delay and that identification of the appellants at 8-30 p.m. Was difficult and that if the appellants had exchanged fire with Police then some persons must have received the injuries. All these arguments were adopted by Mr. Nibhando Khan, learned counsel for appellant Rasool Bux.
8. ' Mr. Ahmed Khan Barakzai, learned Advocate appearing for AA.-G. Conceded that there were glaring illegalities and irregularities committed by the trial Court which could not be cured by section 537 of Cr.P.C. And that there was non-compliance with mandatory provisions contained by sections 342 and 364 and section 365-D and section 365-E of the Code of Criminal Procedure.
9. ' After perusing the record, I agree with the learned counsel appearing in the case, that there are glaring illegalities which have vitiated the trial the I A provisions contained in sections 342 and 364 of Cr.P.C. Are mandatory in nature and non-compliance of such provisions is not an irregularity but illegality which cannot be condoned by section 537 of the Code. In this respect learned counsel for appellant Nawab cited the cases of (i) Kafiluddin v. State 1989 P Cr. L J 251,
(ii) Ashraf Mian v. State 1989 P Cr. L J 1079 and (iii) Salamat Ali and another v. State 1987 P Cr. L J 384.
10. In (i) above the trial Judge failed to comply with provisions of section 364, of Cr.P.C. While recording statement of the accused under section 342, Cr.P.C. And conviction and sentence of the accused were set aside and the case was remanded for retrial and for recording statement of the accused afresh keeping in view relevant provision of law. In (ii) above statement of the accused recorded under section 342 of Cr.P.C. Was not signed by the accused and it was not bearing certificate required by section 364(3) of Cr.P.C. And this was taken to be an illegality not curable under section 537 of Cr.P.C. In above statement of the accused recorded under section 342 of Cr.P.C. Did not bear the certificate contemplated by section 364 of Cr.P.C. And a Division Bench of Federal Shariat Court found this to he an illegality in the case.
11. ' In view of above discussion, this appeal is accepted and the conviction and the sentence awarded to the appellants are set aside and the matter is c remanded to learned Sessions Judge Badin for retrial of the appellants according to law the appellants are in custody and they would continue to remain in custody subject to, the orders to be passed by learned Sessions Judge Badin these are reasons for the short order passed by me on 27-94989 in the aforesaid terms.