' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Shariat Court, dated 1-8-2000, whereby the order of conviction and sentence awarded to the appellant, herein, passed by the District Criminal Court, Pallandri, for committing murder of his wife and daughter was maintained.
2. The brief facts of the case are that a F.I.R. Was lodged at Police Station, Pallandri on 7-9-1995 by Nazir Ahmad, the brother of the accused-appellant, that he (complainant) was employed in F.I.A.
As peon and went on leave to his home on 6-9-1995. He was about to leave for joining his duties on 7-9-1995 when Mst. Nasim Begum, deceased, the wife of the appellant alongwith her daughter, aged about two years, left for Pallandri for the medical treatment of her daughter. According to the complainant, as she was alone, he directed one Shakil to accompany her to Pallandri. He went to join her but after sometime he came back and informed him that when he overtook Mst. Nasim Begum on her way to Pallandri, he saw Waheed son of Ghafoor, Rashid son of Bostan and one unknown person firing at Mst., Nasim Begum and her daughter which resulted in their death. On this a case was registered but during the investigation, it was found that in fact the double murder of his wife and daughter was committed by the accused-appellant because he suspected his wife of infidelity and wanted to have a second marriage after getting rid of her. On 3-9-1995, he (the accused-appellant) left for Kahuta, Pakistan, and directed his wife Mst. Nasim Begum to bring the baby to Pallandri on 6-9-1995 for Medical treatment. Consequently, he joined his wife and daughter at Pallandri on the aforesaid date and thereafter, left for his village with the view to kill his wife and daughter in the jungle during the journey. After the investigation, the accused-appellant was challaned in the District Criminal Court, Pallandri, which convicted and sentenced him to life imprisonment for committing murder of Mst. Nasim Begum, and was sentenced for the murder of his daughter to the payment of Diyat to the tune of Rupees three lacs; he was also fined to Rs,500 under section 13 of the Arms Act, 1965. The accused-appellant filed an appeal to the Shariat Court but the same was dismissed. It is against his aforesaid conviction and sentences that present appeal has been filed.
3. We have heard the arguments in the case and perused the record. Unfortunately, it was brought to our notice that the statement of the accused-appellant under section 342, Cr.P.C.., was not correctly recorded; the prosecution story which came to light as a result of investigation and the material brought in support of the same was not put to him. The questions were asked to the accused-appellant on the basis of story more or less recorded in the F.I.R.; the important incriminating circumstances, particularly that he was seen as many as by six prosecution witnesses on his way to his home with his wife and daughter, some of them allegedly inquired from him as to where he was going; he had also boarded a vehicle on his way to his house as was stated by some of the prosecution witnesses but these incidents were not put to him Mst. Maaroor Jan, the mother of the deceased, was also examined by the prosecution who stated that the relations between the appellant and Mst. Nasim Begum were strained because the appellant wanted to have second wife; 'once the deceased was turned out of the house by the appellant and went to the house of her mother where she told her about the maltreatment of the appellant. She stated that when she took Mst. Nasim Begum back to the house of the appellant, he did not talk to her (witness), despite the fact that she remained there for three days. However, no question was asked to the accused-appellant about the aforesaid circumstances.
4. Mr. Muhammad Hussain Advocate, the learned counsel for the appellant, after dealing with the circumstantial evidence, has submitted that as the evidence on the record was not sufficient for the conviction of the accused-appellant, he should be acquitted instead of remanding the case to the trial Court for proper examination of the appellant under section 342, Cr.P.C. He has cited the cases reported as Munawar Hussain alias Asghar Ali v. The State 1991 SCM R 1601 and Rehmat alias Rehman v. The State PLD 1977 SC 515 in support of his contentions. In the aforesaid cases, the examination under section 342, Cr.P.C. Was defective but it was found by the Supreme Court that circumstantial evidence on the record was not sufficient for the conviction of accused persons and they were acquitted. We are constrained to observe that the facts of those cases are distinguishable from the facts of the present case. After going through the record, we are of the opinion that the question of guilt or innocence of the accused-appellant cannot be decided without giving him an opportunity to explain the incriminating circumstances appearing against him as deposed by the prosecution witnesses. For instance, one of the prosecution witnesses, namely, Riaz Ahmad son of Muhammad Hussain has stated that he met the accused-appellant alongwith his wife and daughter in the jungle and talked to him; he saw Mst. Nasim Begum weeping. He has further stated that the accused-appellant was armed with a gun and he had travelled some distance when he heard the report of two gun fires. However, according to him, he did not return back to the place of incident to know as to what happened but he came to know following day that the accused-appellant had murdered his wife and daughter; the accused- appellant was not confronted with the said incident and other similar incidents stated by the other prosecution witnesses. It may be observed that it is regrettable that neither the trial Court nor the Shariat Court considered the grave -illegalities in the examination of the accused under section 342, Cr.P.C.
In the light of .What has been stated above, we set aside the conviction and sentences of the accused-appellant and remand the case to the trial Court with the direction that it shall re- examine the accused according to the requirements of section 342, Cr.P.C. In light of the observations made above; it shall put him the prosecution story which emerged from the investigation carried out by the police and the incriminating circumstances such as the recoveries made from the accused-appellant and the facts narrated by Mst. Magroor Jan, the mother of Mst.
Nasim Begum, deceased, and other witnesses. After the examination under section 342, Cr.P.C., the accused-appellant shall be given an opportunity to produce evidence in defence and decide the case afresh according to law.