' SAEED-UR-REHMAN FARRUKH, J.--- By this judgment we propose to dispose of the following two matters as these arise out of the same judgment dated 18-7-2000 passed by the Additional Sessions Judge-III, Quetta:- ' (1) Jan Muhammad v. The State Criminal Appeal No,109/Q of 2000 and (2) Sardar Muhammad and another v. Jan Muhammad Criminal Revision No,11/Q of 2000.
' The appellant in the above mentioned appeal has assailed the judgment by which he was convicted under section 392, Pakistan Penal Code and sentenced to five years' R,I. With a fine of Rs,10,000 or in default to further undergo four months' S.1. He was also convicted under section 302(b), Qisas and Diyat Ordinance to suffer life imprisonment with a fine of Rs,50,000 or in default to further undergo two years' R.I. The amount of fine if recovered shall be paid to the legal heirs "of the deceased Fazal Muhammad. Both the sentences were ordered to turn concurrently. The benefit of section 382-B, Cr.P.C. Was extended to him.
2. Sardar Muhammad and another through their revision petition have sought the enhancement of sentences awarded to Jan Muhammad.
3. The relevant facts giving rise to this appeal may be briefly stated; on 9-10-1999 information was received at Satellite Town Police Station Quetta that a dead body was lying in the casualty department of Civil Hospital Quetta on which Abdul Jabbar, S.-I. Police Station Saddar Quetta (P.W.4) went to the hospital at about 4-30 p.m. And found the dead body of Fazal Muhammad lying there Sardar Muhammad brother of the deceased (P.W.3) received a telephonic message that his brother of Fazal Muhammad had been shot dead and his dead body was lying in the casualty department. He found the dead body of his brother besmeared in blood. There were bullet wounds on his head. He accordingly lodged first information report Exh.P./4-A. The dead body was handed over to him.
4. It is the case of the prosecution that Sardar Muhammad initiated search for the vehicle owned by Fazal Muhammad, bearing Registration No,QAB-3180 (Model 1973, Corolla car) which he used to ply as taxi. He succeeded in locating the said car on 20-10-1999 at International Motor Workshop situated at Gurdit Singh Road Quetta. On receiving information about the vehicle the police went there and it was taken into possession. The owner of the workshop Nadir Khan P.W.2 informed the police that it had been brought to the workshop by the appellant for repair, who was present there.
The vehicle was taken into possession and the appellant was arrested.
5. It is alleged by the prosecution that, while in police custody, the appellant made a disclosure on which Fard-e-Inkshaf Exh.P/6-A was prepared. The place of occurrence was pointed out by him and Fard-eNishandai Exh.P/5-B was prepared. It is further alleged that the appellant took the police to his house situated in Street No,3, Pashtoonabad and got recovered the papers of the vehicle from an iron box A T.T. Pistol and few live cartridges were also recovered from the roof of the house vide Exh.P/6-C. The Investigating Officer went to the place of occurrence and recovered blood- stained earth vide Exh.P/6-A. He also recovered three empties from the spot vide memo. Exh.P/6-B.
6. After completion of the investigation the appellant was challaned to Court.
7. At the trial, the prosecution produced, in all, nine witnesses.
' Abdul HarmId P.W.1 did not support the prosecution and all that he said was that Fazal Muhammad deceased was a tax driver.
' Nadir Khan P. W.2, owner of International Workshop, deposed that on 18-10-1999 the appellant brought the vehicle in question bearing Registration No,QAB-3180 to his workshop for denting. His wages were settled as Rs,8,000 and he repaired the dents of the car and removed its grill. On 20- 10-1999 some police officials from Gowalmandi Police Station went to his workshop and inquired about the workshop of the vehicle and he informed the police that the appellant who was present there, was its owner. The police took the vehicle into possession and apprehended the appellant.
8. Sardar Muhammad complainant, P.W.3 deposed that Fazal Muhammad deceased was his brother and he used to ply car bearing Registration No,QAB-3180 (Model 1973 Corolla) as taxi. On 9- 10-1999 he received information that Fazal Muhammad had been shot dead by some unkonwn person near Badini Road. He went to the casualty department of Civil Hospital Quetta. He took the dead body of his brother. It was lying in a pool of blood. He lodged the first information report with the police (Exh.P/3-A). He further deposed that he traced the car parked in the International Motor Workshop at Gurdit Singh Road Quetta and informed the Gowalmandi Police Station about it.
9. Muhammad Rafique S.-I. P.W.4, who was posted at the relevant time at Police Station Gowalmandi deposed that on 20-10-1999 Sardar Muhammad complainant conveyed information that on 9-10-1999 his brother Fazal Muhammad was murdered and his vehicle No,QAB-3180 was snatched away and the same vehicle was parked in International Workshop situated at Gurdit Singh Road, Quetta. On receipt of this information he, alongwith Maqsood S.-I. And Mehwa Khan constable went to the workshop. On inquiry, Nadir Khan owner of the workshop, informed them that the vehicle in question had been brought to his workshop by the appellant who was present there.
The vehicle was taken into possession vide memo. Exh.P./4-A and the appellant was arrested.
Thereafter, police officials of Satellite Town was informed and they took away the appellant and the vehicle with them.
10. Hameodulalh Sherani, Magistrate, P.W.5 deposed that at the relevant time he was posted as EAC-IX/M.F.C., Quetta and he received the information on telephone from Police Station Satellite Town that the appellant was willing to make voluntarily statement. He went to the police station and summoned the appellant from the lock-up. He made disclosure of killing a person with T.T.
Pistol on Badini Road. Fard-eInkshaf Exh.P./5-A was prepared. Fard-e-Nishandai was also prepared as Exh.P./5-B. According to the witness the appellant then led them to his house in Street No,3, Pashtoonabad and got recovered the papers of the car from an iron box by opening its lock, after obtaining its key from his mother. The witness deposed that, in the meanwhile, something was thrown on the roof of the house. A T.T. Pistol and few live cartridges were recovered from the roof vide memo. Exh.P./6-C.
' The witness further deposed that on 21-10-1999 he supervised the identification parade and Abdul Hamid P.W.1 correctly identified the appellant vide memo. Of identification parade (Exh.P./5-D).
11. Abdul Jabbar P.W.6 deposed about paying a visit to casualty department and location of dead body of Fazal Muhammad there with bullet wounds on his head. He registered the case on the statement of Sardar Muhammad P.W.3. According to him, the appellant was arrested on 20-10- 1999 by the police officials of Gowalmandi Police Station and he was brought to his police station i,e, Satellite Town Quetta. He then deposed about the disclosure of the appellant made before the learned Magistrate and recoveries (abovementioned) effected at his instance, in the presence of the learned Magistrate.
12. Abdul Salam S.I.P. P.W.7 deposed about having recovered the last-worn clothes of the deceased vide memo. Exh.P/7-A.
' Shah Jehan S.-I. P.W.8 partly investigated the case. He prepared rough sketch of the place of occurrence Exh.P/8-A. He put three crime-empties in a sealed parcel vide memo. Exh.P/6-B. He deposed about the arrest of the appellant from the workshop of International Workshop at Gurdit Singh Road Quetta on 20-10-1999 and the recovery of the vehicle from the said workshop. He was also witness of the disclosure and the recoveries effected at the instance of the appellant.
13. Last witness in the case produced by the prosecution was Dr. Amin Malghani MLD, Civil Hospital, Quetta as P.W.9 who examined the dead body of Fazal Muhammad deceased on 9-10-1999, and found the following injuries:-- "(1) Entrance wound on the right cheek 1/2 c.m. Circular and irregular edges.
(2) Exit wound on the right side vertex of skull 3/4 c.m. In diameter circular and irregular edges.
(3) Entrance wound on the back of neck 1/2 c.m. Circular and irregular edges.
(4) Exist wound on the right posterior area of neck 3/4 c.m. Circular and irregular edge."
' According to him the deceased died due to damage of brain "chock" and death was caused by fire-arm injury vide his certificate Exh. P/9-A .
14. After conclusion of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. He denied the prosecution allegations in toto. He stated that he was innocent and had been falsely implicated in the case by Abdul Jabbar P.W. On account of enmity between his father and uncle on the one side and Abdul Jabbar on the other. He produced copy of application moved in High Court against Abdul Jabbar marked as D/1.
' He did not wish to produce defence evidence nor offered to make statement on oath under section 340(2), Cr.P.C.
15. It is argued by the learned counsel for the appellant that it was a case of blind murder and the appellant had been implicated at the instance of Abdul Jabbar P.W.6 who was inimically disposed towards the family of the appellant.
16. Learned counsel further argued that the prosecution had failed to prove recovery of any incriminating article, at the instance of the appellant. According to him these were manoeuvred by the police and he was innocent.
' On the other hand, Mr. Abdul Karim Khan Yousafzai, Advocate, learned counsel for State stoutly defended the impugned judgment. He submitted that in this case there was overwhelming circumstantial evidence led by prosecution against the appellant which conclusively proved that the appellant was guilty of the offence alleged against him.
17. We need not dispose of the case on merits as legal infirmity in the trial, mentioned in the sequel, leading to the conviction of the appellant, is too manifest on the face of the record for us to ignore and difficult for the prosecution to explain. It is for this reason that we have refrained from commenting upon/appraising the evidence on record.
18. We find that the statement of the appellant was not properly recorded in accordance with section 342, Cr.P.C. Which reads as under:-- "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.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court may draw such inference from such refusal or answer as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into or trial for any other offence which such answers may tend to show he has committed.
[(4) Except as provided by subsection (2) of section 340, no oath shall be administered to the accused.]"
19. It is not necessary that every circumstance of the case, gathered/noticed during the trial must be put to the accused under section 342, Cr.P.C. There may be circumstances or pieces of evidence with which even if the accused is not confronted, same would not cause miscarriage of justice. But it is necessary that the circumstances or items of evidence appearing in evidence against the accused must be put to him if they, or any of them, could singly or read in juxtaposition with other evidence, could form basis of conviction, and failure to do so would cause miscarriage of justice. In such a situation the omission to ask question about these circumstances/items of evidence would constitute fatal infirmity rendering the trial to be vitiated or necessitating retrial, depending on the circumstances of each case.
20. Section 342, Cr.P.C. In fact, is based on maxim "audi alterm partem", namely that nobody should be condemned unheard. The accused has an inalienable right to be heard and given a chance to offer his explanation qua every bit of incriminating evidence/circumstances, brought on record during the course of trial.
' The legal import of section 342, Cr.P.C. Has attracted the attention of the superior Courts in number of reported judgments.
' In Syed Inayat Hussain Shah v. The Crown PLD 1954 Sind 256 at 268, it was held that "... An accused person has to be given an opportunity under the law to explain the evidence on which his conviction is sought to be or going to be based. This is a mandatory provision of law and cannot be ignored. It is not sufficient compliance with the letter of law that the accused should understand the implications of questions put by the Court. There are to be no implications and no mental reservations under section 342, Cr.P.C."
' In Rahim Bakhsh v. The Crown PLD 1952 FC 1 the conviction, under challenge before the Honourable Federal Court, was based solely on his confession. However, neither his attention was drawn to said confession nor any explanation for the same was called by the Court during his examination under section 342, Cr.P.C. It was laid down that this course of action was violative of principle of natural justice and he was held to be vitally prejudiced in his defence.
' In the same report, at page 63 in Aminul Hoque's case a similar question arose and it was authoritatively laid down as under:-- "Section 342, Criminal P.C. Enjoins that for the purposes of enabling the accused to explain any circumstances appearing in the evidence against him he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is not sufficient to put a general question to the accused whether he has anything to say about the charges levelled against him. When a point arises in the evidence against the accused which the Court considers vital, it is the duty of the Judge to call the attention of the accused to the point, and to ask for an explanation. The whole object of enacting section 342, Cr.P.C. Is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to be given."
' In Din Muhammad v. The Crown 1969 SCM R 777 same principle was reiterated and the conviction of the appellant was set aside, as mandatory requirements of section 342, Cr.P.C. Remained unfulfilled. Also see Munir Ahmad alias Munni v. The State 2001 SCM R 56 and Asif Zardari and another v. The State PLD 2001 SC 568.
' This Court in Ashraf and others v. The State 2004 PCr.LJ 42 has also laid down:-- "We may observe here that compliance with the provision of section 342 of the Code of Criminal Procedure, in accordance with its terms, is essential and departure therefrom is not permissible, 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 examination of the accused is mandatory and not discretionary. Rather, it is proscriptive in the sense that if, it is found by the trial Court that any circumstance appearing in evidence against the accused is likely to contribute 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 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 suggest that examination of the accused is not a mere formality but a necessity."
21. It may be recapitulated that Nadir Khan P.W.2 had deposed that on 18-10-1999 the appellant brought the vehicle to his workshop bearing Registration No,QAB-3180 for denting. He (witness) was busy in repairing the vehicle on 20-10-1999, in the presence of the appellant, when the police visited his workshop. They inquired about the owner of the vehicle on which he informed them that it belonged to the appellant who was present there. The police then took away the vehicle and the appellant with them.
' It will not be out of place to mention here, that the appellant did not lay a claim of ownership qua the vehicle in question, during the trial. On the contrary, the vehicle was proved to be owned by the deceased.
' The testimony of Nadir Khan P.W., whatever evidentiary worth it might carry, therefore, was an important incriminating piece of evidence against the appellant.
21. A perusal of the statement of the appellant recorded under section 342, Cr.P.C. Shows that the allegation of the prosecution that it was the appellant who brought the vehicle to the workshop of Nadir Khan P.W. For repair was not put to him. Likewise the appellant not questioned as to whether at the time of raid by the police at the workshop D he was present there. He was also not asked as to whether, in his presence, the police made a query from Nadir Khan about the owner of the vehicle who mentioned the name of the appellant. The appellant was not asked as to how he came to possess the vehicle and its ownership documents and he led to the recovery of these documents.
' These pieces of incriminating evidence should have been put to the appellant by framing appropriate questions and their replies elicited from him, which unfortunately was not done.
23. It goes without saying that, even though the vehicle and its key were in possession of Nadir Khan, at the time of raid by the police, yet in case his evidence was to be accepted to be truthful it would be deemed that the appellant was in constructive possession of the vehicle.
24 A perusal of the impugned judgment shows that the only question pertaining to the vehicle and it recovery from the workshop of Nadir Khan P.W. Was put as under:-- Q.No,10. Is it correct that the Investigating Officer recovered the stolen vehicle No,QAB-3180 from International Motor Workshop Gurdit Singh Road, Quetta .Vide memo. Exh.P/4-A, what have you to say?
' Ans. I do not :know.
(Sd.) Accused
25. We are of the considered view that the appellant was gravely prejudiced due to his defective/illegal recording of his statement under section 342, Cr.P.C. The impugned judgment, therefore, has resulted in grave miscarriage of justice.
26. In this view of the matter, while withholding our comments on the merits of the case, lest it might prejudice the case of either party, we are convinced that the trial of the appellant and the impugned judgment, emerging there from, stand vitiated.
27. For what has been stated above, we feel no hesitation in holding that the impugned judgment and the conviction and sentences awarded to the appellant merit to be set aside, in view of legal infirmity in the trial pointed out (supra) calling for fresh trial of the case from the stage of recording the statement of the appellant under section 342, Cr.P.C. We order accordingly.
' The learned trial Judge shall record the statement of the appellant under section 342, Cr.P.C.
Afresh, in the light of the observations, made hereinbefore, and then afford him a chance to lead defence evidence, if so desired by him. He shall also be granted an opportunity to depose on oath as postulated by section 340(2), Cr.P.C. Whereafter, fresh judgment shall be pronounced in the light of the evidence/material brought on the record.
' Revision Petition No,11/Q of 2000, seeking enhancement of sentence of Jan Muhammad is disposed of as having become infructuous.