MUHAMMAD MUNIR KHAN, J.---This Criminal Appeal No.62 of 1987 and connected Murder Reference No.79 of 1987 arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 8-3-1987 convicted Mukhtar Ahmad alias Bholi appellant under section 302, P.P.C.
For the murder of Liaqat Ali deceased and sentenced him to death and a fine of Rs.5,000, in default thereof further R.I. For six months. He was also directed to pay compensation of Rs.4,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof further R.I. For 3 months.
2. Since after hearing the learned counsel for the parties, we feel inclined to set aside the conviction and sentence of the appellant and send back the case for retrial from a particular stage, on account of legal infirmity in 'recording statement of the appellant/accused under section 340(2), Cr.P.C., therefore, we need not set out the facts in detail and enter into the merits of the case. We find that after the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C., wherein he raised the plea of self-defence and of grave and sudden provocation as well. In answer to question No.9, he stated:- "I am innocent. Liaqat deceased was working with me at a Plumber in Lahore Cantt. He used to reside at my house being a close relation. I and Liaqat used to go for work together. One day prior to the occurrence Liaqat deceased had gone with me to do the usual work but he came back on the pretext of ailment. I returned in the evening to my house and inquired about Liaqat, where I came to know, that Liaqat and my sister Razia were not present at the home. I started the search of my sister and Liaqat deceased but my efforts went in vain. On 16-5-1986 I started for Chak No.70/5- L from where I came to know that Liaqat was not there but he was in the Garden of Ranas, situate in Chak No.70/5-L. I eventually went there and found Liaqat Ali deceased making love with my sister Mst. Razia. I was provoked to see this scene. I admonished and rebuked Liaqat deceased on which he grappled with me. During the scuffle Liaqat deceased wanted to put me to death. I tried to save myself. During the scuffle a pistol fell from the fold of Shalwar of Liaqat Ali deceased. Liaqat was much more powerful than me. I apprehended death at the hands of Liaqat deceased. Liaqat tried to pick that pistol and I in order to resist him from getting hold of the pistol also tried to desist, Liaqat Ali from getting hold of the pistol and in that event the pistol went of as a result of which Liaqat received the injuries. Mst. Razia was away from that place. I went to the police station and narrated the whole incident to the Sub-Inspector. The Sub-Inspector arrested me there and then and confined me in the police lock-up. I did not produce the pistol before him. The Sub-Inspector later on concocted the false story against me. He did not record my version. My arrest on 30-5- 1986 is altogether a story. I am innocent. The story of Watta is incorrect. I am already engaged with Bushra d/o my uncle:"
It may be noted that this statement was made without oath. He showed his willingness to be examined on oath under section 340(2), Cr.P.C. So, the trial Court administered him oath before recording his statement. In his examination---in-chief, the appellant/accused stated:- "I am innocent. I have made my detailed statement under section 342, Cr.P.C., which be read in evidence as my defence."
From the trend of the judgment of the trial Court, it will be seen that the statement made by the accused/appellant without oath under section 342, Cr.P.C. Has been read as an evidence on oath under section 340(2), Cr.P.C. In disproof of the charge, which was not possible under the law. The manner in which the learned trial Court has conducted itself in recording the statement of the accused/appellant cannot be approved. The statement recorded by the trial Court under section 340(2), Cr.P.C. On the face of it is illegal and cannot be read as evidence on oath. So, there is no option but to accept this appeal and set aside the judgment of the trial Court.
3. Pursuant to the above discussion, we refuse to confirm the sentence of death passed upon Mukhtar Ahmad appellant. The conviction and sentence are set aside and the case is remanded to the trial Court with the direction that it shall again record the statement of the accused under section 340(2), Cr.P.C. In accordance with law and decide the case afresh on the existing evidence after hearing the arguments of the parties on merits of the case. The trial Court will decide the case within six months from today. The appellant will remain confined in jail as under-trial prisoner till the decision of the case.
N.H.Q./M-2460/L