1. ' Appellant Haji Siddik has called in question the impugned judgment, dated 22-5-2000, passed by learned Additional Sessions Judge, Sehwan, in Sessions Case No.31 of 1995, whereby the appellant has been convicted and sentenced under section 302, P.P.C. To undergo life imprisonment and to pay fine of Rs.25,000 to the legal heirs of each deceased and in default to suffer further R.I. For three years. He has also been awarded benefit of section 382-B, Cr.P.C.
2. ' The brief facts of the case are that complainant Ali Sher lodged F.LR. At Police Station Jehangara, stating therein that on 2-7-1995 at 11-30 hours the complainant had dispute with accused persons over matrimonial affairs since last 6/7 years. On the above date, complainant was sitting in his home and his father Saifal and mother Mst. Hanifa had left for piece of land surrounded by water for washing of wheat grain. At about 10-00 a.m. The complainant heard fire-arm reports from eastern side, on which he alongwith P.Ws. Ramzan and Rajib rushed towards the mountain torrent, where they saw accused Haji Siddiqui armed with double barrel gun and accused Jan Muhammad armed with hatchet; seeing them the accused. Persons went away towards eastern side in the jungle of Lai bushes, complainant party found that Saifal and Mst. Hanifan had died and were bleeding, thereafter, the complainant left the above P.Ws. Over the dead bodies went to lodge the F.I.R ' After usual investigation, the police challaned the accused before the Civil Judge and F.C.M., Sehwan on 3-9-1995, who sent up the case papers to Additional Sessions Judge, Sehwan, under contemplation of section 190(3), Cr.P.C. On 5-9-1995 for disposal according to law. Copies of case papers were supplied to the accused vide receipt as Exh.l.
3. ' Formal charge was framed as Exh.3 on 18-12-1996. Pleas of accused were recorded as Exhs.4 and 5, to which they did not plead guilty and claimed to be tried.
4. ' The case was proceeded and the prosecution, in support of its case, examined complainant Ali Sher at Exh.7, who produced F.I.R. As Exh.7A, P.W. Razamat Exh.8. P.W. Rajib Exh.9, P.W. Dr. Abdul Sattar Bhugio at Exh.10, who produced post-mortem notes of both deceased at Exhs.10-A and 10-B. P.W.5 Bashir Ghulam Hussain at Fxh.11, who produced four Mashirnamas as Exhs.11-A to 11-D. P.W.6, A.S.-I Ghulam Nabi at Exh.12, who produced Chemical Report at Exh.12-A, P.W. Ayub Exh.14, who produced attested photo copy of inquest report as Exhs.14-A and 14-B. P.W. Falzoo was given up by D.D.A. Vide statement Exh.13; D.D.A. Closed the side of prosecution on 28-3-2000 vide his statement Exh.15.
5. ' Statement of both accused were recorded under section 342, Cr.P.C. As Exhs.16 and 17, whereby both of them neither wanted to examine themselves on oath nor they led any defence witness.
6. ' Learned trial Judge has formulated the points for determination and after hearing, the learned counsel for the parties and going through the evidence adduced by the prosecution, has passed the impugned judgment in terms as stated above.
7. ' At the outset, Mr. Manzoor Ahmed, Z. Siddiqui, learned counsel for the appellant has drawn my attention on the statement of appellant Haji Siddik recorded under section 342, Cr.P.C. With contention that adverse evidence against the appellant was existing in the shape of recovery but no such question has been put to the appellant under section 342, Cr.P.C. By the prosecution, which leaves inference that the appellant has been condemned unheard and against the principle of audi alterm partam. In support of his contention, he has placed reliance on 1969 SCM R 777, 1995 SCMR 13741375 and 1999 PCr.LJ 1006.
8. ' Mr. Muhammad Azeem Panhwar, learned State Counsel has very frankly submitted that the case may be remanded for rewriting the judgment from the stage of recording of statement under section 342, Cr.P.C. He has conceded this legal position and submitted that this is illegality on the part of the Presiding Officer that no such question has been put to the appellant in respect of recovery, which is adverse evidence, existing against him. He has supported the contentions of Mr. Manzoor Ahmed Z. Siddiqui, learned counsel for the appellant.
9. ' Mr. Muhammad Azeem Panhwar, learned State Counsel has further drawn my attention that the learned Judge has passed the judgment under section 302, P.P.C. But nowhere conviction and sentence under section 302, P.P.C. Has been mentioned and the judgment is not clear on this point.
10. He has placed reliance on 2000 M LD 425 and 1996 SCM R 869, wherein it is held that subsection of section 302 is to be mentioned by the trial Judge, not mentioning the same amounts to illegality.
11. I have heard Mr. Manzoor Ahmed Z. Siddiqui, learned counsel for the appellant, Mr. Muhammad Azeem Panhwar, learned State Counsel and have gone through the statement under section 342, Cr.P.C. And the judgment given by the learned trial Judge. Admittedly, the adverse evidence against the appellant was existing in the shape of recovery but this question has not been put by the trial Court, which amounts to illegality as the appellant has been condemned unheard which is in violation of the principle of audi alterm partam. Moreover, the judgment has not been given under Qisas and Diyat Ordinance, as mentioned in the aforementioned decisions and provisions of section 304 has been violated by the trial Court.
12. ' In view of the above discussion, I am in full agreement with the arguments rendered by learned counsel for the parties and accordingly, I set aside the conviction and sentence of the appellant and the case is remanded to the trial Court to re-start from the stage of recording of statement of appellant under section 342, Cr.P.C. And to rewrite the judgment in accordance with the amended Qisas and Diyat Ordinance, as envisaged under section 304, P.P.C. After giving full opportunities to the learned counsel for the parties.