1. ' Present appellants have called in question judgment, dated 28-3-2000 passed by the learned 1st Additional Sessions Judge, Badin in S.C. No,43 of 1985 (Crime No,23 of 1985) registered with Police Station Tando Ghulam Ali under section 302/34, P.P.C. Whereby the appellants have been convicted for life imprisonment and fine of Rs,50,000 each and,in default the appellants suffer R.I.
2. For two years more. If the fine is recovered from the appellants, half of the same be paid to the legal heirs of the deceased Muhammad Ayub under section 544-A, Cr.P.C. Hence this appeal.
3. ' Brief facts of the prosecution case are that complainant Ahmad Mangrio lodged F.I.R. At Police Station Tando Ghulam Ali on 28-5-1985 alleging therein that he is a Zamindar and he has got five brothers including deceased Muhammad Ayub who was married and rest of them are unmarried.
4. Deceased Muhammad Ayub has four sons and two daughters who are minor. On the previous night the complainant after taking meals went with his brother deceased Muhammad Ayub, Gul Muhammad and Muhammad Liaq to the goat pan of Fateh Muhammad Shah to chit chat with him, when at about 11-00 p.m. Accused Nim armed with hatchet, accused Aziz armed with hatchet, accused Allah Bachayo armed with Lathi and accused Ali Ahmed armed with hatchet came there.
5. Accused Nim while abusing deceased Muhammad Ayub told him that he has developed illicit connection with his daughter for which a Faisla was held and he took an oath and that Faisla is totally wrong and they would not believe the Faisla as such he will not be spared. On this accused Nim instigated other accused not to spare Muhammad Ayub. Accused Aziz gave a sharp side hatchet blow on the neck of Muhammad Ayub, accused Ali Ahmed gave hatchet blow with sharp side on his right ear and accused Allah Bachayo gave Lathi blow on his back. The complainant raised cries which attracted so many persons from the village and the accused seeing them went away. Muhammad Ayub went unconscious and complainant sent for a Datsim from the village Dasti through Gul Muhammad who brought the same and the complainant and his brother Gul Muhammad took the injured Muhammad Ayub to Police Station Tando Ghulam Ali, where deceased lost his breath and complainant lodged the F.I.R.
6. ' S.H.O. Abbas Mirjat of Police Station Tando Ghulam Ali recorded the report of complainant being Crime No,23 of 1985 on 28-5-1985, prepared Mashirnama over dead body and Danishtnama and Mashirnama of injuries on the person of injured in presence of Mashirs Bashir Ahmed and Muhammad Hashim. He also visited the place of incident on 28-5-1985 and prepared such Mashirnama in presence of same Mashirs. He also despatched the dead body through P.C.
7. Manzoor Ali to WHC Tando Ghulam Ali for post-mortem examination. On 30-5-1985 accused namely Nim son of Usman, Aziz son of Nim, Ali Ahmed son of Gul Muhammad were arrested by the S.H.O. Abbas Mirjat from village Haji Lal Muhammad Mangrio. Such Mashirnama of arrest was prepared in presence of Mashirs namely Bashir Ahmed and Muhammad Hashim. Therefore, investigation was transferred to S.H.O. Muzaffar Ali Kalwar who arrested accused Bachayo son of Nim near Primary School village Yar Muhammad Mangrio and prepared such Mashirnama in presence of Mashirs Bashir Ahmed and Hyder Shah. On 9-6-1985 accused Ali Ahmed son of Gul Muhammad, Nim son of Usman and Aziz son of Nim voluntarily led the police and Mashirs Hyder Shah and Mukeem and produced crime weapons hatchet and Lathi which were secured by the S.H.O., Muzaffar Ali Kalwar, sealed the same and prepared such Mashirnama in presence of above named Mashirs. The S.H.O. Also got recorded the statements of witnesses namely Fateh Muhammad Shah, Gul Muhammad Magrio and Ameen under section 164, Cr.P.C. Before the Mukhtiarkhar and F.C.M. Matli and then on completion of the usual investigation he submitted interim challan before the competent Court of law.
8. ' On 30-3-1989 charge Exh.2 was framed against the accused, to which they pleaded not guilty and claimed to be tried.
9. ' At the trial prosecution examined P.W.1 complainant Ahmed at Exh.7, P.W.2, Fateh Muhammad at Exh.8, P.W.3 Gul Muhammad at Exh.9, P.W.4 Mashirs Bashir at Exh.l1, P.W.5 Mashirs Muhammad Muqeem at Exh.12, P.W.6 Manzoor Ali at Exh.13, P.W.7, Dr. Capt. Abdul Mateen at Exh.14, P.W.8 Muhammad Yousaf at Exh .16, P.W .9 Muhammad Ameen at Exh.19, S.H.O. Muzaffar Ali Kalwar at Exh.21. Thereafter, prosecution closed its side vide Exh.22.
10. ' Statements under section 342, Cr.P.C. Of accused persons have been recorded at Exh.23 to Exh.26 respectively.
11. ' In their statements under section 342, Cr.P.C. The accused have denied the allegation of the prosecution and they have stated that they have been falsely implicated in this case due to enmity Accused Nim in his statement further stated that all the witnesses are related inter se. P. Ws. Gul Muhammad and complainant are Masats to each other's. P.W. Ameen is cousin of complainant.
12. P.W. Muqeem and Ameen are brothers to each other's. P.W. Bashir was brother-in-law of deceased Ayub as well as of P.W. Hashini. Accused Aziz and Bachayo followed the statements of co-accused Nim Aziz. However, accused declined to examine themselves on oath, but they examined one Soomar son of Wali Muhammad as defence witness.
13. ' Learned trial Judge formulated the points for determination and after going through the evidence adduced by the prosecution witnesses passed the judgment in terms stated above.
14. ' I have heard the learned counsel for the appellant and Mr. Muhammad Azim Panwhar learned counsel appearing for the State.
15. ' Mr. Soomro, learned counsel for the appellants at the very outset without touching the merits of the case has drawn my attention on the statements of the accused/appellants under section 342, Cr.P.C. And has contended that the statements under section 342, Cr.P.C. Of the accused/appellants do not contain signature. Even the certificate has not been written in his own handwriting by the learned Presiding Officer and according to him there is a flagrant violation of section 364(2), Cr.P.C. And this is an illegality which is not curable under section 537, Cr.P.C. He further contended that even the charge is defective because on the plea of guilt there is no signature of the accused/appellants and therefore, according to him the charge is also defective.
16. He has very frankly proposed that it is a fit case for remand to the trial Court to restart from the state of 342, Cr.P.C. Statements in accordance with the mandatory provisions as envisaged under section 364(2), Cr. P . C .
17. ' On the other hand Mr. Muhammad Azim Panwhar learned counsel for the State has recorded his no objection to the remand of the case on the grounds raised by the learned counsel for the appellants.
18. ' I have gone through the impugned judgment and statements under section 342, Cr.P.C. And the charge and plea of guilt. I have also examined record and proceedings of the case. Admittedly the statements of the appellants under section 342, Cr.P.C. Do not contain signature and so also the certificate has not been written in his own handwriting A by the Presiding Officer. I find flagrant violation of the provisions of section 364(2), Cr.P.C. And this is an illegality which is not curable under section 537, Cr.P.C. I have also examined at page 777 of the record and proceedings wherein it has been transpired that the appellants were minors at the time of the offence and yet the trial was not held under the Juvenile Act. I am fully in agreement with the contentions raised by the learned counsel for the parties that there is violation of section 364(2), Cr.P.C. While recording statements of the accused/appellants under section 342, Cr.P.C. And I accordingly set aside the conviction and sentence of the appellants. The case is remanded to the trial Court with directions to restart from the stage of 342, Cr.P.C. Statements of the appellants strictly in accordance with the provisions of law. The trial Court is further directed to hear the learned counsel for the parties and the grounds which will be agitated by them at the time of trial before the trial Court. The trial Court is further directed to take into consideration the age factor of the appellant which is borne out from the record. Accordingly the case is remanded. Mr. Soomro learned counsel for the appellants submits that this is a case of 1985 and the appellants before the trial Court have remained on bail all along and they were remanded to custody at the time of delivery of the judgment, dated 28-3-2000 and on such request learned counsel for the State has opposed to the grant of bail and this request of learned counsel for the appellant is not accepted.
19. However, the appellants will be at liberty to move bail application before the trial Court in this regard.