' The appellant has assailed the order of his conviction passed by the Additional District Criminal Court, Bhimber, on July 17, 1990, awarding him sentence of life imprisonment and fine in the sum of rupees thirty thousand, on finding him guilt); of murder of Muhammad Akhtar, deceased, under the provisions of section 5 of the Islamic Penal Laws Act.
2. Usman Khalid, brother of Muhammad Akhtar deceased, made a report at the local Police Chowki on December 26, 1985 wherein it was stated that on December 13, at 3 p.m., Muhammad Akhtar, his brother, left home for Jandala Bazar. He boarded Truck No. 3129-D.N.A. It was driven by Zaffar, Driver.
They came across Bus No.3790-AJK coming from Smahni. Muhammad Yunus, appellant, was travelling in the bus. The truck was stopped to give way to the bus when Muhammad Yunus called Muhammad Akhtar and asked him to join him in travelling in the bus. Muhammad Akhtar followed the call. Both of them travelled in the bus. This event was witnessed by Zaffar, Truck Driver, and one Tanvir Ahmed. They took their meals in Friends Hotel Poona. Meals was served by Fazal Hussain who later informed the complainant of his serving the meals. Muhammad Yunus came back to Khun whereas Muhammad Akhtar disappeared. A search was made but his whereabouts were not traceable. A second report was made on December 31, wherein the circumstances listed in the previous application were reiterated and it was further added that Muhammad Yunus was present at his home since last night. He avoided disclosing the whereabouts of Muhammad Alchtar, His activities were suspicious, as such the complainant apprehended the foul play of murder of his brother by Muhammad Yunus. The case was registered and the accused was apprehended on the-same day. He led the police to the dead body of the deceased.
3. In his trial, the appellant pleaded not guilty. The prosecution, in support of its allegation, produced Usman Khalid, Muhammad Riaz, Irshad Khan, Raja Muhammad Sarwar, Nazir Ahmad, Habibur Rahman, Fazal Hussain, Tariq Latif, Zaffar Iqbal, Sabir Hussain Patwari. Dr. Qurban, Maqsood Ahmad Constable, Muhammad Ishaque Constable, Riaz Khan Moharrir Head Constable and Abrar Haider, S.H.O. No evidence was produced in defence.
4. Khalid Usman deposed that while making search for the deceased, he met Fazal Hussain who informed him that the deceased and the accused came to his restaurant together and took their meals at 7 p.m., on December 13. They left the restaurant together. On the next day, he was informed by Zaffar Iqbal Driver and Tariq Latif that they saw the deceased accompanying the accused as they travelled together in the bus. Fazal Hussain, Zaffar Iqbal and Tariq Latif P.Ws. Were produced to corroborate Usman Khalid.
5. Usman Khalid further deposed that the dead body of the deceased, the clothes, identity card, school leaving certificate, a letter addressed to the deceased, wrist watch, Parna and Shawl of the deceased lying along the dead body, were recovered at the instance of the accused. He identified the dead body and the aforesaid articles. He was accompanied, in addition to police, by Muhammad Riaz Khan, Irshad Khan and Muhammad Sarwar Khan. The evidence of Muhammad Riaz Khan, Irshad Khan and Muhammad Sarwar Khan was adduced to support the complainant on the aforesaid point. Nazir Ahmed and Habibur Rehman were witnesses of recovery of dagger and stone, the alleged weapons of offence. It was deposed, that these articles were recovered from the site adjacent to the place of occurrence, at the instance of the accused. Dr. Qurban Hussain conducted post-mortem. Muhammad Riaz, Moharrir Head Constable recorded the report of disappearance of the deceased, made on 26th December. He delivered the parcels of incriminating articles to Ishaque Constable who took them to Chemical Examiner.. Maqsood Ahmad Constable took the parcels of incriminating articles to the doctor to find explanation to the query sent by the S.H.O. Abrar Haider made investigation in the case. He recorded the first information report, recovered the dead body along with the articles described above and the alleged weapons of offence, viz., the dagger and the stone. He also recorded statements of all the witnesses under section 161, Cr.P.C. And submitted the challan.
6. The trial Court recorded conviction of the appellant by placing reliance, among others, on the clothes and other articles recovered from the dead body of A the deceased, allegedly at the instance of the appellant. Unfortunately, the accused was not put the aforesaid evidence during his examination under section 342, Cr.P.C.' It was pointed out by the learned counsel for defence that any incriminating evidence which was not put to the accused during his examination under section 342, Cr.P.C., could not be considered in evidence against him. The objection is quite valid.
The intention of the provisions of section 342, Cr.P.C. Is to provide opportunity to the accused to explain any circumstances appearing in the evidence against him. The omission to do so, is not only an irregularity but an illegality, as it was likely to prejudice the accused. The language used in section 342, Cr.P.C. Postulates that the Court shall, for the purpose of enabling the accused to explain any circumstances appearing in evidence against him, put such questions to him as the Court considers necessary. Such questions could be put after the witnesses for the prosecution were examined and before the accused was called on for his defence. The explanation furnished by an accused in answer to the questions put by the Court, was to be taken into consideration by the Court.
7. On finding the aforesaid departure from the rules of procedure, due to fault of the trial Court, it was permissible to the Appellate Court to examine the accused by putting incriminating piece of evidence to enable him to furnish his explanation if any. Such authority was conferred on the Appellate Court to eliminate the likelihood of injustice to the accused. Nevertheless, where it was found that the trial Court recorded its opinion resulting in conviction of the accused by relying upon a particular incriminating piece of evidence which was not put to the accused,to enable him to give an answer, it was expedient and in the interest of justice that the Appellate Court, instead of examining the accused by itself, may set aside the conviction and remand the case to the trial Court for fulfilling the desired procedure and giving fresh decision in the light of merits of the case.
The former position, whereby the Appellate Court was empowered to examine the accused by itself, finds support from an unreported case of this Court titled "State v. Abdul Majid" decided on January 23, 1990. The second position finds ample support from various authorities of this Court, the Supreme Court of Azad Jammu and Kashmir and the superior Courts of Pakistan and India.
Reference may be made to Papu Butani's case 1980 P.Cr.LJ 771 and Mannu Khan's case 1988 P.Cr.LJ 272.
8. In view of the aforesaid position, the proposition, as it crops up before the Court, is that either the Court should examine the accused in respect of the. Evidence not put to him during the trial, or the case should be sent back to the trial Court for retrial from the stage where the fault occurred. The third option is that the evidence not put to the accused may not be used against him and the case may be decided on appreciating rest of the evidence. The third option would not be conducive to the interest of justice as it is a case of blind murder and the entire evidence of prosecution rests on different circumstances enumerated above. Therefore, the only safe course considered by this Court is that the conviction may be set aside and the case may be remanded to the trial Court for its fresh decision.
9. In view of the aforesaid conclusion, it is not deemed expedient to apply mind to rest of the merits of the case or its final adjudication. The order of conviction is, therefore, set aside and the case is sent back to the District Criminal Court, Mirpur, for compliance of the observation made by the Court and fresh decision on merits.
' The appeal is, therefore, accepted, the order of conviction is set aside and the case is sent back to the District Criminal Court, Mirpur, as the Additional District Criminal Court, Bhimber is incomplete for want of appointment of Additional District Qazi. The parties shall appear before the District Criminal Court, Mirpur on May 11, 1991.