1. ' SALEEM AKHTAR, J.--This Criminal Appeal and Criminal Revision arise from the judgment passed by the learned IInd Additional District Judge, Dadu convicting and sentencing the appellant to suffer imprisonment for life and fine of Rs.5,000 in default R.I. For three years. According to the prosecution Mst. Amna lodged F.I.R. At Police Station Sehwan Sharif alleging that on 1-5-1983 she alongwith her husband Muhammad Chuttal the appellant and her mother-in-law Mst. Hidayat came for Ziarat of Lal Shahbaz Qalandar. On 2-5-1983 after ziarat all of them went to Mst. Satabhai to stay with her in her house. The appellant was suspecting the complainant of sorcery and witchcraft. In the night of incident the appellant had exchanged hot words with the complainant and she kept awake out of fear. The appellant's cot was near the complainant. At about 2.30 A.M.
2. The appellant woke up and all of a sudden attacked her with knife and gave injuries on her stomach with the intention to kill her. Her cries attracted Mst. Hidayat who challenged him and he ran way after opening the door of the outer entrance of the house. On her cries Gul Muhammad Chano and Lal Bux Shaikh Chowkidars of Shaikh Mohalla came to the place of the incident. Ghulam Muhammad Khan Vice-Chairman and Rasool Bux Kumbhar Councillor and other neighbours also arrived there and she narrated the incident to them who brought her to Police Station Sehwan, where she lodged the report. The complainant died on 4-5-1983 in hospital.
3. ' According to the prosecution at about 5.15 A.M. The appellant also came to the Police Station with blood-stained clothes and confessed his crime. On search blood-stained knife was recovered. The confession was also recorded by the Magistrate. The prosecution had cited Mst. Hidayat as a witness but she was given up and was examined as a defence witness.
4. ' Mst. Satabhai in whose house they were staying and where the incident occurred, has not been examined therefore there are no eye-witnesses of the incident. The prosecution entirely rests on the statement of Mst. Amna made before the P.Ws. And at the police station after which she died.
5. According to the prosecution her statement should be treated as dying declaration. The other witnesses are P.Ws. 1, 2, 3 and 7 who had reached the place of incident immediately after the occurrence to whom the deceased had narrated the entire incident. None of them have seen the appellant causing injury to the deceasd nor have they seen him running away therefore their evidence is of corroborative nature. The prosecution has also relied on the confession made by the appellant and the recovery of blood-stained knife and clothes. The appellant has however retracted from the confession and therefore it can be relied upon only if there is a proper convincing and independent evidence to corroborate it.
6. ' The learned counsel for the appellant has vehemently contended that no reliance can be placed on the confessional statement. The learned counsel contended that the confession was recorded after Court hours which is against the circular and cannot be relied upon. Reliance has been placed on Abdul alias Abdul Karim and another v. The State 1975 P Cr. L J 1077. It was further contended that time for reflection was insufficient as 24 hours was not given. In this regard reference was made to Abdul Haleem v. The State 1984 P Cr. L J 611 and further that the confession was a result of coercion. Reliance was placed on 1989 P Cr. L J 1005.
7. ' In Abdul alias Abdul Karim and another v. The State 1975 P Cr. L J 1077 it was observed that "the circumstance that, in contravention of the criminal circulars, the two confessions were recorded by the learned S.D.M. After Court hours is an additional factor tending to erode confidence in the confessions". The circular referred therein was neither reproduced in the judgment nor it has been produced by the learned counsel for the appellant. From this observation it is clear that if there are other grounds on the basis of which the confession cannot be treated as a reliable evidence and there are doubts to its veracity, the fact that it was recorded after Court hours will further damage its credibility. It is preferable that the confession is recorded during Court hours but circumstances may arise where it may not be possible to record it during the Court hours and in such a situation this factor alone will not discredit the veracity of such confession provided proper explanation is given and there exists corroborative evidence to support the confession. Likewise in Abdul Haleem v. The State 1984 P Cr. L J 611 the accused was hardly 141/2 years of age and was alleged to have committed murder on 18th August, 1976 at 9.30 p.m. He was arrested on 26-8-1976 at about 6 A.M.
8. And was produced before the Magistrate on the same day at about 10 A.M. For statement. There was nothing on record to show that the lawyer of the accused or his relatives had access to the accused during the period of his detention in police custody. According to the Magistrate the accused was given 1-45 hours for reflection before his confession was recorded. It was held that time given to the accused for reflection was insufficient in the circumstances and as no evidence was available it was not safe to rely on such confession. Taking into consideration the facts and circumstances of the present case the confession particularly as it is a retracted one, cannot be the sole basis for convicting the appellant. Therefore evidence of other witnesses will have to be taken into consideration. The learned counsel has pointed out the discrepancies in the statements of P.Ws. It was contended that P.Ws. 1 and 2 could not have been present at the time of incident and were chance witnesses. In our view P.Ws. 1 and 2 are natural witnesses, being chowkidar of the area they were on patrolling duty during the night. Mr. Faiz Muhammad Qureshi the learned counsel for the appellant, attacked the veracity of the statements of P.Ws. 3 and 7 to show that they could possibly not have been available at the time of incident nor P.W. 3 could be at this odd hour proceeding to see P.W.
7. Even if for argument sake the statement of these two witnesses is excluded the fact remains that P.Ws. 1 and 2 reached immediately after the incident and the deceased made statement before them. Therefore for purposes of conviction the statement of the deceased which as made before the P.Ws. And before the Police Officer is to be taken into consideration.
9. ' The question is whether this dying declaration is sufficient together with orroborative evidence to record conviction. Mr. Faiz Muhammad Qureshi the earned counsel for the appellant has contended that during trial while recording statement of the accused the attention of the appellant was not drawn to the dying declaration and therefore it is not admissible in evidence. We have examined the record and find that the attention of the appellant was not specifically drawn to the dying declaration of the deceased. Mr. Syed Sarfraz Ahmed the learned AA.-G. Has contended that the F.I.R. Was produced and exhibited in presence of the appellant and therefore it should be treated as sufficiently proved and further that irregularity pointd out by the learned counsel for the appellant stands cured. Mr. Fiaz Muhammad Qureshi has referred to Din Muhammad v. The Crown 1969 SCM R 777 in which it has observed: "In reaching these conclusions the learned Judges have not considered a material defect in the proceedings viz. That three of the circumstances from which they were drawing inferences adverse to the appellant had not been put to him when he was questioned under section 342, Cr.P.C. By the Committing Magistrate and the Sessions Judge. No question was put to him in respect of the evidence of P.W. 3 about the reply he was said to have given to the witness when asked about the whereabouts of the deceased or the evidence of P.W. 7 or that of P.W.16. The circumstances spoken to by these witnesses even if accepted as proved, can be made the basis of an adverse inference against the appellant only on the ground that he had no satisfactory explanation for them, but the possibility of his having been able to give an explanation though not convincing at least plausible enough to create a reasonable doubt cannot reasonably be excluded. The importance of the examination of the accused, under section 342, Cr.P.C. Has been pointed out by their Lordships of the Privy Council as well as by this Court in more than one decision, and it is unfortunate that the learned Judges overlooked this serious omission."
10. ' Reference was also made to Munnu and three others v. The State 1988 PCr.LJ 272. In this case the attention of the accused was not drawn to the dying declaration and the case was remanded for retrial.
11. Section 342, Cr.P.C. Incorporates the principles of justice that where any person is to be charged with any penal liability he should be made aware of all the facts and circumstances existing against him. He is then is a position to give explanation in respect of those charges and evidence produced against him. A departure from such procedure could be fatal to the prosecution as a very important step in the trial has been bypassed making the entire trial completely vitiated.
12. Section 342, specifically provides that attention of the accused should be drawn to the points in evidence which are likely to influence the mind of the Judge in arriving at a conclusion adverse to the accused and before any adverse inference is drawn the Court may at any stage of the trial offer the accused an opportunity to explain such points. Refer to Shaffi Muhammad and three others v. The State 1983 P Cr. L J 550. Under this section the accused is not to be cross-examined but only his attention is drawn to such facts which are adverse to him and can be used as evidence against him and which the Judge thinks that they are likely to influence his mind in arriving at a judgment against the accused. Reference can be made to Abdul Wahab v. The Crown PLD 1955 Federal Court 88. In the present case the learned trial Judge had not drawn the attention of the appellant to the deceased's statements made before P.Ws. And in the F.I.R. Which is a material evidence and had influenced the learned trial Court to convict him. This material irregularity in the trial has completely vitiated the proceedings and the conviction recorded cannot be sustained. We therefore allow the appeal and set aside the conviction and sentence passed by the impugned judgment and remand the case for retrial from the stage of examination of the accused under section 342, Cr.P.C. The connected revision application accordingly fails.