2017 PLP 271 (YLRN)

NAIMATULLAH PHULPOTO, J.

Appellant Mushtaq Ali was tried by learned Additional Sessions Judge-II, Karachi West in Sessions Case No.227/2007. On the conclusion of trial, appellant was found guilty and convicted by judgment dated 11.12.2013 under section 377, P.P.C. and sentenced to 10 years R.I. and to pay fine of Rs.10,000/-. In case of default in payment of fine, he was ordered to suffer S.I. for two months more.

2. Brief facts of the prosecution case as disclosed in the FIR are that one Abdul Latif lodged his report alleging therein that he is serving as a Store Officer. On 27.03.2007 after performing his duty, he came at home at 7:30 p.m. his mother told him that one Mohallah boy namely Mushtaq Ali son of Wazir Gul has committed sodomy with his younger brother namely Nouman at the house of the accused. It is alleged that Nouman aged about 6 years while weeping came back at the home and he was unable to walk. Thereafter, complainant along with PW-Darya Khan caught hold the accused Mushtaq in the street and produced him at the police station SITE. Victim Nouman's shalwar was also produced before the police. FIR was recorded against accused under section 377, P.P.C. After usual investigation, challan was submitted against accused under above referred section.

3. Charge was framed against accused Mushtaq Ali at Ex-2. Accused pleaded not guilty to the charge and claimed to be tried.

4. In order to prove its' case, prosecution examined PW-1 Darya Khan at Ex-3; PW-2 complainant Abdul Latif at Ex-4; PW-3 Khalid Khan at Ex-5; PW-4 Mr. Ali Ahmed Jan, Civil Judge/Judicial Magistrate, West Karachi at Ex-6; PW-5 Dr. Qarar Abbasi (MLO) at Ex-7; PW-6 victim Nouman at Ex-8; PW-7 Shah Begum at Ex-9 and PW-8 SIP Zahir Shah at Ex-10. Thereafter, prosecution side was closed.

5. SIP Khalid Khan has stated that on 18.03.2007 he was present on his duty at PS SITE. At 3:00 p.m. two person namely Abdul Latif and Darya Khan brought the accused Mushtaq at PS. He recorded the statement of Abdul Latif and arrested the accused and prepared such mashirnama. SI-Ghulam Mustafa of PS SITE produced accused Mushtaq in Crime No. 124/2007 of PS SITE for recording his confessional statement before Judicial Magistrate. Mr. Ali Ahmed Jan, Judicial Magistrate-II, Karachi West recorded confessional statement of accused Mushtaq in the aforesaid crime after observing all legal formalities. Accused in his confessional statement has admitted that he has committed sodomy with victim boy. After recording his confessional statement he was remanded to jail custody. In the cross-examination Judicial Magistrate has replied that perhaps accused was juvenile at the time of recording his confessional statement.

6. Medical Officer Dr. Qarar Ahmed, Sr. MLO Civil Hospital had examined victim boy Nouman on 28.03.2007 and stated that victim was subjected to the act of sodomy. He had also examined accused and found him capable to perform sexual act and potent. He issued such certificate at Ex. 7/B. In the cross-examination to Mr. Hameedullah advocate for the accused doctor replied that accused inserted his penis into the anal of victim.

7. Thereafter, on 14.10.2013 learned advocate for the appellant submitted an application for amendment of the charge on the ground that appellant was aged about 11 years at the time of commission of offence. Application was allowed by trial court vide order dated 14.10.2013. Amended charge was framed at Ex. 13 under section 377, P.P.C. Thereafter advocate for the accused submitted his statement dated 14.10.2013 at Ex-14 to adopt the prosecution evidence already on record. It appears that on said statement orders have not been passed by the learned judge and case was fixed for recording statement of accused under section 342, Cr.P.C. 9(sic) Statement of accused was recorded under section 342, Cr.P.C. at Ex-15. Accused denied the commission of sodomy with victim boy. Regarding second question that he was capable to perform sexual act as per medical certificate brought on record at Ex-7. Learned Judge has not recorded the answer of the accused and it is blank. Thereafter, accused has been convicted and sentenced as stated above. 7(sic). Mr. Jehanzeb Khan learned advocate for the appellant Mushtaq argued that procedure adopted by the trial court on the application of the accused for adopting the same evidence after amended charge was illegal. Conviction and sentence awarded to the appellant on the basis of such evidence without providing fair opportunity to the parties is not sustainable under the law. He has argued that trial Court did not record statement of accused according to law, reply of accused with regard to question No.2 is not written by the trial Court. He has argued that case may be remanded to trial Court. In support of his arguments he relied upon the case of Modra and others v. The State (PLD 1958 SC 275).

8. Mr. Abrar Ali Khichi, learned APG argued that after amended charge, counsel for the appellant had submitted statement before the trial court for adopting the same evidence already on record. However, he has submitted that case may be remanded to trial Court.

9. After hearing the learned counsel for the parties, scanned the entire evidence available on record. It appears that charge was framed against accused under section 367-A, P.P.C. at Ex-2. Prosecution produced evidence. Thereafter, an application was submitted by advocate for accused on 14.10.2013 for amendment of the charge on the ground that accused was aged about 11 years at the time of commission of offence and he was unable to perform sexual act. On the same date application was allowed by the trial Court and amended charge was framed under section 377, P.P.C. at Ex-13. On the same date, i.e. 14.10.2013, advocate for accused submitted statement at Ex-14 to adopt the same prosecution evidence which was already available on record. It appears that no order has been passed on the said statement. Thereafter, case was fixed for recording of statement of accused under section 342, Cr.P.C. Question No.2 was put to accused that "you were capable to perform sexual act", answer is blank. It is not understandable that why reply of accused has not been mentioned. Learned advocate for accused during trial had submitted application that accused was aged about 11 years at the time of commission of offence. In the Juvenile Justice System Ordinance 2000, "child" means a person, who at the time of commission of offence, has not attained the age of 18 years. It was the duty of the trial Court to have determined the age of the accused but it has not been done during trial of accused. Apart from that, after amendment of the charge, trial Court should have provided an opportunity to the prosecution to substantiate the charge framed under section 377, P.P.C. by producing prosecution witnesses with fair opportunity to the accused for cross-examination but such procedure as prescribed in law was not adopted by the trial Court. Apart from that from the perusal of the statement of accused recorded under section 342, Cr.P.C. at Ex-15, it appears that no question has been put to accused regarding confessional statement made by him. Statement of accused has been recorded by the trial Court without application of judicial mind. All the incriminating pieces of evidence were not put to accused in his statement which is the requirement of law. Learned judge in the impugned judgment, at page-6, has relied upon the evidence of Mr. Ali Ahmed Jan, Civil Judge and Judicial Magistrate, Karachi West, who deposed before the trial Court that accused made confessional statement before him regarding the commission of the offence. It is well-settled law that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case, learned Additional Sessions Judge without realizing the above legal position not only used the above portion of the evidence of Magistrate regarding confessional statement of accused used against him, but also convicted him on such piece of evidence, which is not permissible under the law. In case of Muhammad Shah v. The State (2010 SCMR 1009), Honourable Supreme Court of Pakistan has observed as under:-

11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross-examination for convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The perusal of statement of the appellant, under section 342, Cr.P.C., reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained. 13(sic). In view of above legal position, I am clear in my mind to hold that the judgment of the trial Court is not sustainable under the law. Conviction and sentence awarded to the appellant by trial Court vide judgment dated 11.12.2013 are set-aside. Case is remanded to the trial Court for retrial in accordance with law. Trial Court is directed to decide the case expeditiously. Appeal is allowed to the above extent. HBT/M-93/Sindh Case remanded.