1. The present judgment shall dispose of criminal revision petition No.444 of 1989 Farid etc. v. State and Cr.R.No.463 of 1989 Ghulam v. State, as these arise out of the same case and out of the same judgment dated 16-8-1989 passed by Additional Sessions Judge, Jhang and judgment dated 24- 4-1989 by Mr. Muhammad Akhtar, Magistrate 1st Class, Jhang, whereby all the petitioners were convicted under sections 325, 149 and 148, P.P.C. And sentenced to two years' R.I. Under section 325/149, P.P.C. And to two years' R.I. And under section 148, P.P.C. To six months' R.I. The appeal preferred against the said judgment was dismissed by the Appellate Court but, while maintaining the convictions stated above, the sentences were reduced to nine months and six months respectively vide judgment dated 16-8-1989.
2. The brief facts leading to the present criminal revision petitions are that an F.I.R. Exh.PA./1 was recorded on the complaint Exh. PA. Which was recorded on the statement of Khan Muhammad P.W.1. According to the said F.I.R., the occurrence had taken place on 20th January, 1985 at 8-00 a.m. Near Adda Choki Roranwali. It is further stated therein that the petitioners herein alongwith one Khan, an acquitted co-accused, had caused injuries to the injured P.W.3 Zafar Abbas while armed with Sotas. The motive is stated to be the grudge that the petitioner bore towards the injured P.W.3 because of marriage of the niece of petitioner accused Baig against his wishes with the maternal- cousin of injured P.W.3 Zafar Abbas.
3. To prove its case the prosecution had produced six witnesses in all. The P.W. 1 Khan is complainant. P.W.2 Khan son of Karam Ali eye-witness, and P.W. 3 Zafar Abbas injured P.W.3 supported the version of the prosecution as stated in the F.I.R. And corroborated each other. P.W.4 Mazhar Hussain A.S.I. Had recorded the formal F.I.R. Exh.P.A./1. P.W.5 A.B. Saleem had examined injured P.W.3 and had prepared medico-legal report Exh. P.B., and sketch thereof Exh.P.B./1. P.W.6 Nasir Ali Shah Inspector had investigated the case and after completing the challan had submitted the same before the Court. The recoveries effected were Sotas Exh. P.E. From Ghulam petitioner in Criminal Revision Petition No.463 of 1989 and a Sota Exh. P.F. From petitioner Baig.
3. The learned trial Court placing reliance on the evidence produced before it had convicted and sentenced the petitioners as stated above, and thereafter, the learned Appellate Court, dismissing the appeal of the petitioners against the same had reduced the sentences as stated above.
4. The learned counsel for the petitioners in his detailed arguments contends for setting aside the conviction of the petitioners. The learned counsel for the petitioners and the State have been heard at length and the record of the case perused with their assistance.
5. Learned counsel for the petitioners submitted detailed arguments to support his contention for setting aside the impugned judgments. However, the main arguments need to be dealt with pertain to the material irregularity committed by the learned trial Court while examining the petitioners/accused under section 342, Cr.P.C. And failure of the said Court to append the certificate in accordance with the provisions of section 364, Cr.P.C. Under the said statements by the accused petitioners. and that the second question put to the accused was as follows:-- Learned counsel for the petitioners pointed out that in the questions stated above, put to the accused under section 342, Cr.P.C. Is different from the date, time and place of occurrence as stated in the F.I.R. And similarly deposed by the prosecution witnesses before the trial Court in their respective testimony. While emphasising his point the learned counsel read out the relevant portion from the F.I.R. Exh.PA./1 which is as follows:-- Therefore, the learned counsel submitted that the questions put to the accused petitioners under section 342, Cr.P.C. Are extraneous to the facts as put up by the prosecution through the F.I.R. PA./1 and the testimony of the prosecution witnesses. Hence contended that as the said material irregularity amounting to illegality is not curable under any provision of law and as a result thereof, the evidence of the prosecution produced in the trial Court, cannot be used against the petitioners, the present case is one of acquittal under such circumstances. To support his contentions he placed reliance upon Muhammad Bashir v. State 1985 P Cr. L J 391 wherein it has been held that facts appearing in evidence not having been put to the accused when examined under section 342, Cr.P.C., render such piece of evidence incapable of being used against him.
6. The other main contention of the learned counsel for the petitioners deals with absence of the certificate in accordance with provisions of section 364, Cr.P.C. By the learned trial Court at the end while recording the statements of the accused under section 342, Cr.P.C. In this respect, reliance is placed on Muhammad Rafique v. State 1985 P Cr. L J 1985.
7. Learned counsel for the State, after perusing the record conceded that illegality had been committed by the trial Court in recording of the statements of the accused petitioners under section 342, Cr.P.C. As pointed out, and further conceded that the certificate as required under section 364, Cr.P.C. Has not been appended under the said statements of the accused/petitioners.
8. However, he further submitted that under such circumstances, the criminal revision petition may be allowed but the case be remanded to the trial Court.