' CH. EJAZ YOUSAF, J.--- This appeal is directed against the judgment, dated 30-4-1999 passed by the learned Additional Sessions Judge, Malir whereby the appellant has been convicted under section 302, P.P.C. And sentenced to death as Qisas alongwith a fine of Rs,30,000 or in default thereof to further suffer R.I. For six months.
2. Briefly stated, the prosecution case as gathered from the record is, that on 3-11-1989 report was lodged by one Mst. Imrana wife of Nazar Hussain wherein, it was stated that she alongwith her husband and children was residing in House No,A/17, Gulshan Society, Quaidabad, Karachi. On the said date, at about 1-30 p.m. When she was in bath room, call bell of the house rang whereupon, her husband opened the door. On hearing noise she came out of the bath room and saw that hands of her husband were tied with handkerchief and an armed person was standing near him.
On seeing her, the armed person threatened and directed her to hand him over her gold bangles, which she was wearing at the relevant time. While she was busy in putting of the bangles her husband found an opportunity to get release his hands and he ran away towards door of the room.
The armed person as such started firing on her husband who sustained injuries but grappled with the armed person. In the meantime, two other armed persons came out of a room of the house, however, they fled away after throwing their pistols at the place of occurrence. It was claimed in the report that on seeing them again, the complainant would be in a position to identify the culprits. It was further alleged therein that the complainant raised alarm whereupon people of the vicinity including Gohar Zaman and Maratab Ali were attracted who caught hold of the appellant alongwith a pistol. Complainant's injured husband was thereafter taken to hospital for treatment. It was also alleged in the complaint that one motorcycle bearing Registration No,KC-7984 Yamaha was standing near the door of the complainant's house which was suspected to be of the accused persons. In the meantime, police party also reached the spot and arrested the appellant and also took into possession three pistols alongwith the abovesaid motorcycle. On checking the house it was found that two gold jewellery sets were also missing. It was claimed in the report that since appellant with the help of his companions, had tried to kill her husband by firing upon him, therefore, action under the law may be taken against them. On the stated allegations formal F.I.R.
Bearing No,509 of 1989 was registered at the said police station under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and investigation was carried out in pursuance thereof. On the completion of investigation the accused/appellant alongwith other accused persons were challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons produced 13 witnesses, in all. P.W.1 Mst. Imrana is the complainant.
She while reiterating the version contained in the F.I.R. Deposed that appellant was the same person who, while committing dacoity in the house had murdered her husband. P.W.2 Fida Muhammad deposed that in his presence, two wrist watches were handed over by accused Aslam Parvez to late Inspector Usman, which were taken into possession vide Exh.9. His further examination was reserved "for want of property" but thereafter he did not turn up, as such his statement was not considered by the Court. P. W.3 Mir Aslam Khan deposed that on 3-11-1989 he alongwith other police personnel had gone to the place of occurrence where the appellant who was already apprehended by the people, was arrested and taken into custody vide Exh.12. He further deposed that one revolver was also recovered from the possession of the appellant. P.W.4 Masood Ahmad deposed that in his presence, two accused persons were produced by their brother at S.I.C. Jamshed Quarters who were accordingly arrested by late Inspector Usman. P.W.5 Muhammad Faisal is brother-in-law of the deceased. He, on coming to know about the incident, had reached the Jinnah Hospital and collected dead body of the deceased. He produced in Court memo. Of inspection of the dead body as Exh.16. P. W.6 Maratab Ali is an eye-witness of the occurrence. He, at the trial, corroborated the statement of the complainant. P.W.7 Alaf Khan is a marginal witness of memo. Of arrest i.e, Exh.14 of the accused persons namely, Rauf and Aslam. Dr. Shamsuddin Sheikh had conducted autopsy of the dead body. He produced the report as Exh.14.
P.W.9 is a marginal witness of the inquest report i.e, Exh.42. P.W.10 Nazeer Akbar is a formal witness.
According to him, he had subsequent to the occurrence, reached the police station and had seen the appellant there. In the course of his examination he, however, stated that he was not aware as to who had murdered the deceased. P.W.11 Muhammad Aslam is a marginal witness of the recovery memo. Exh.45 vide which two wrist watches were taken into possession by the police from accused Asghar. P.W.12 S.-I. Muhammad Zaki Hashmi is another eye-witness of the occurrence.
According to him, he on hearing gun shot reports had rushed the place of occurrence and saw that both the appellant, as well as deceased Nazar Hussain, were lying on the ground and were grappling with each other. The appellant was armed with a pistol whereas, deceased was found in injured condition. He further deposed that he had secured pistol from the appellant. P.W.13 D.S.P.
Khan Afzal at the relevant time was posted as S.H.O. Police Station, Quaidabad. He had on the report of Mst. Imrana registered the F.I.R. Exh.52. He deposed that he had also lodged another F.I.R.
Under section 13(d) of the Arms Ordinance against the present appellant because when apprehended at the place of occurrence he was found in possession of a pistol and two magazines containing live cartridges.
5. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their above statements they denied the charge and pleaded innocence. The plea taken by the appellant in his statement was that he was a plumber by profession and was arrested by the police when he was riding a motorcycle without documents. They however, failed to lead any evidence in their defence or to appear as their own witness in terms of section 340(2), Cr.P.C.
6. After hearing arguments of, the learned counsel for the parties the learned trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para. Hereof.
7. We have heard Mr. Azizullah Sheikh, Advocate, learned counsel for the appellant, Raja Abdul Ghafoor, Advocate learned counsel for the State and have also perused the record of the case carefully.
8. It has been mainly contended by Mr. Azizullah Sheikh, Advocate, learned counsel for the appellant that though, as per prosecution version, the appellant was apprehended at the spot and the pistol with which he had committed murder of deceased Nazar Hussain was also recovered from his possession instantly and in recording conviction against the appellant recovery of the weapon in question has also been taken as an incriminating piece of evidence yet, neither the said pistol was produced and exhibited at the trial nor its recovery was proved in accordance with law nor the appellant was specifically questioned with regard thereto within the purview of section 342, Cr.P.C., thereby enabling him to explain his position. Therefore, omission so made by the learned trial Court, having materially prejudiced the appellant in his defence, has rendered the impugned judgment as unsustainable.
9. Raja Abdul Ghafoor, Advocate, learned counsel for the State having been confronted with the proposition submitted that though Mir Aslam Khan a marginal witness of the recovery memo. Of the pistol was examined by the prosecution as P.W.3 yet, the record is silent as to whether or not the weapon in question was produced in Court or exhibited at the trial, learned counsel for the State submitted that perhaps the lapse was because a separate case under section 13 of the Arms Ordinance, for illegally keeping in possession the weapon, was registered against the appellant, therefore, the learned prosecutor due to inadvertence omitted to do the needful. Learned counsel for the State, however, candidly conceded and submitted that notwithstanding non-production of the crime weapon, the learned trial Court ought to have questioned the appellant with regard to its recovery from his possession because it was an important incriminating piece of evidence. He, however, submitted that since omission regarding non-production of the pistol has taken place due to inadvertence, therefore, prosecution may be afforded an opportunity to rectify the defect and case may be remanded to the trial Court for re-examination of P.W.3 so that the weapon in question may be produced and proved at the trial, in accordance with law.
10. Notwithstanding the fact that the learned counsel for the State has not controverted the contention raised by the learned counsel for the appellant, we have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, minutely. As per prosecution version, the appellant at the time of forcing his entry into the house of the deceased was armed with a pistol, with the help of which, he subsequently committed murder. The said pistol after the occurrence was secured from the appellant. Prosecution in order to prove the above fact, at the trial, examined Mir Aslam Khan as P.W.3 who testified that the recovery of the pistol, was effected from the possession of the appellant. However, statement of P.W.3 is vague to the extent that regarding appellant's arrest though he has stated that a Mashirnama i.e: Exh.12 was prepared yet, he has not said a single word as to whether any separate recovery memo. Concerning the pistol in question was prepared or not.
Record shows that P.W.3 appeared in Court on 18-2-1992 and his examination-in-chief was partially recorded. However, his further statement was reserved "for want of property". He again appeared on 23-4-1994 on which date he was cross-examined but record does not indicate that the case property including the pistol in question was either produced or exhibited. The learned trial Court while discussing the statement of P.W.12, S.-I. Muhammad Zaki Hashmi has though at page 14 of the judgment, remarked that the said witness had seen Exh.12 i.e, recovery memo. Of the place of occurrence, arrest and recovery and that he i.e, P.W.12 had identified in Court the appellant as well as the "property" to be the same yet, has not bothered to discuss as to whether the pistol in question was produced and exhibited at the trial or if needful was not done as to why it was omitted? Since most of the prosecution witnesses have, at the trial, deposed that when arrested, a pistol and two magazines containing live cartridges were recovered from the possession of the appellant and that it was the same weapon which was used in the offence, therefore, in our view, it was incumbent on the learned trial Court to be vigilant and alive to this position and see that firstly; these articles were produced and proved in Court in accordance with law and secondly; if recovery of pistol/revolver was taken as an incriminating piece of evidence by the Court then the accused in all fairness should have been specifically questioned with regard thereto, thereby enabling him to explain his position within the purview of section 342, Cr. P . C .
11. A perusal of the impugned judgment shows that use and recovery of the pistol in question from the possession of the appellant has been taken as an important piece of evidence against the appellant by the learned trial Court and it has heavily contributed towards his conviction. Following portion of the judgment, which is reproduced hereinbelow for ready reference, is explicit in this regard:-- ' "From anxious perusal of arguments and evidence brought by the prosecution, it has transpired that prosecution has proved its case by adducing direct evidence, ocular evidence, medical evidence and circumstantial evidence against the accused Muhammad Afzal who was apprehended at the spot by P.Ws. And Mohallah people, and then was arrested by police at the spot and pistol with loaded magazine which was used by him at the time of commission of offence was also secured from his possession." Underlining is ours.
12. Since the crime weapon was neither produced at the trial nor recovery thereof alongwith magazines from the possession of the appellant was proved in accordance with law, therefore, in the peculiar circumstances of the instant case either the trial Court should not have taken and considered the recovery against the appellant or else if it appeared to the Court that it was essential for just decision of the case then the prosecution should have been directed to produce and prove the same in accordance with law by either recalling P.W.3 or through any other mode.
Needless to point out that under section 540, Cr.P.C. Which for ready reference and convenience is reproduced hereinbelow, the Court has had ample powers to take care of the situation:-- "S.
540. Power to summon material witness or examine person present.--- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
It would be pertinent to mention here that the power bestowed upon the Court under section 540, Cr.P.C. Is not only discretionary but obligatory as well in the sense that if in the circumstances of a case it appears to the Court that examination of any person/witness is essential for just decision of the case, then the Court would have no option but to summon and examine him. Needless to point out that in such an eventuality action taken by the Court under section 540, Cr.P.C. Would not be termed or regarded as a step towards filling of gaps and question of prejudice to the accused would also not arise because in doing so the Court would be giving effect to a provision of law. This view receives support from the observations of the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan made in the case of Muhammad Azam v. Muhammad Iqbal reported as PLD 1984 SC 95.
13. As to the second limb of argument in the contention that since the recovery of pistol in question alongwith magazines was taken as an incriminating piece of evidence against the appellant, therefore, omission to question him with regard thereto in the course of his 342, Cr.P.C. Statement, having materially prejudiced the appellant, has rendered the impugned judgment as unsustainable, we may observe here that compliance with the provision of section 342 of the Code of Criminal Procedure, in accordance with its terms, is indeed necessary and departure therefrom is not permissible in law, if some prejudice is shown to have been caused to the accused. The use of word "shall" in latter part of subsection (1) of section 342 denotes that the provision in question is not permissive but imperative. Rather, it is proscriptive in a way that if, it is found by the trial Court that any circumstance appearing in the evidence against the accused gravitates towards his conviction then the Court would not be competent to take the same into account without questioning him on that point. Perusal of section 342(1), Cr.P.C. Further leads to the inference that the object of the examination of the accused is, to give him an opportunity of explaining the circumstances which may tend to incriminate him or likely to influence mind of the Judge in arriving at a conclusion adverse to him. Likewise, the addition of the words "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him" in section 342(1) further suggests that examination of the accused under the section is not a mere formality but a mandate to enable the accused to explain any circumstance appearing against him in the prosecution evidence. To our mind, these words have been thoughtfully inserted therein to ensure that the principle contained in Judicial Maxim "Audi. Alteram Partem" is fully complied with. For the sake of convenience and ready reference it would be advantageous to reproduce hereinbelow section 342, Cr.P.C. Which reads as follows:-- "S.
342. Power to examine the accused.---(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."
14. Though in some cases it has been held that an error or omission which falls within the category of "curable irregularities" within the ambit of section 537, Cr.P.C. Does not necssarily vitiate the trial, yet in certain cases where, the accused is not questioned at all, or his explanation is not sought for with regard to an important piece of evidence, which otherwise implicates him, the omission so made would be decisive.
15. The upshot of the above discussion is that since in the instant case the trial Judge has not adopted the mandatory procedure in the conduct of trial and has based the judgment inter alia on considerations not borne on record, therefore, the impugned judgment, to our mind, is not sustainable. Consequently, the impugned judgment, dated 30-4-1998, passed by the learned Additional Sessions Judge, Malir, is set aside and the case with consent of the parties is remanded to the trial Court for its decision afresh in accordance with law, with the direction that prosecution may be afforded an opportunity to produce the crime weapons/pistol alongwith magazines and prove recovery thereof in accordance with law. Thereafter, appellant may be re-examined under section 342, Cr.P.C. And he be confronted with all the incriminating circumstances/evidence which may come on record against him. The appellant shall be permitted to lead evidence in his defence with regard thereto or to get recorded his own statement under section 340(2), Cr.P.C. If he chooses to do so.
' Since the case has been remanded to the learned trial Court for its decision afresh, therefore, Criminal Reference No,1/K of 1999 has become infructuous.