2013 PLP 509 (MLD)

ABDUL RASOOL MEMON, J.

This jail appeal is directed against the judgment dated 7-6-2010 passed by the learned IVth Additional Sessions Judge, South Karachi, whereby appellant Abdul Ghafoor alias Multani was convicted and sentenced to suffer for 7 years and fine Rs.10,000 or in default thereof further undergo S.I. for one year under section 324 P.P.C. Benefit of section 382-B, Cr.P.C. was, however, extended to the appellant.

2. The facts stretch out in a little scope. The appellant was sent up by Preedy Police, Karachi to face trial under section 324/34, P.P.C. in case F.I.R No. 602 of 2005 dated 15-11-2005 inter alia on the charge that on 14-11-2005 at about 6-30 p.m. at M.A Jinnah Road near PSO Patrol Pump Karachi appellant and absconding accused Waheed Shah in furtherance of their common intention fired upon Imran Shaikh, brother of complainant Mohammad Usman Shaikh with intention to kill him, as result of which, P.W. Imran had sustained fire arm injures on his person and after that appellant was apprehended with T.T Pistal and live bullets.

3. In compliance of section 265-C, Cr.P.C. relevant papers were supplied to the appellant and after that charge was accordingly framed at Ex. 2 to which the appellant pleaded not guilty and claimed trial.

4. During trial, the prosecution in order to prove the charge and substantiate the allegations against the appellant produced eight witnesses, in all, and thereafter statement of appellant under section 342, Cr.P.C. was recorded. He, however, failed to lead any evidence in his defence or to appear as his own witness as provided under section 340(2), Cr.P.C.

5. The learned trial court after hearing the arguments of the learned counsel for the parties convicted the appellant and sentenced him as mentioned in supra para of this Judgment.

6. I have heard the arguments and have also perused the entire record with the assistance of learned counsel for the parties.

7. It has been, mainly contended by the learned counsel for the appellant that though the appellant was charged for causing fire arm injures to P.W. Imran with pistol and recovery of said weapon from his possession has taken as an incriminating piece of evidence in recording conviction against the appellant yet, the trial Court has omitted to specifically question the appellant with regard thereto within the meaning of section 342, Cr.P.C. thereby rendering the impugned Judgment as indefensible. He further argued that learned trial Judge has conducted trial of the appellant in a haste manner and since omission to specifically question the appellant on substantial points of incriminating pieces of evidence has grimly prejudiced the appellant in his defence, therefore, the impugned Judgment is not sustainable.

8. Mr. Zahoor Shah, A.P.-G. after going through the record has confirm that learned trial Judge had not put material question from the appellant with regard to the recovery of T.T Pistol from his possession at the time of his arrest. He, has, however pleaded that since, the omission so made appears to have taken place due to inadvertence, therefore, the prosecution may be afforded an opportunity to rectify the defect by remanding the case to learned trial judge for re-examination of the appellant under section 342, Cr.P.C.

9. Heard. Perused record.

10. I have myself minutely gone through the record of the case. It reveals that the appellant Abdul Ghafoor was apprehended by the police in an injured condition at the time of alleged occurrence with T.T pistol and bullets. It is an admitted fact that in alleged incident one person by name Imran had sustained injuries caused by fire arm and said weapon was allegedly recovered from the possession of appellant Abdul Ghafoor alias Multani said to have used in the crime. Therefore, the learned trial Judge should have been alive to the situation and have questioned the appellant with regard to each and every incriminating piece of evidence available on record thereby enabling him to explain position.

11. It has been further observed that compliance with provision of section 342, Cr.P.C. in accordance with its terms, is indispensable and leaving therefrom is not allowable, if some prejudice is shown to have been caused to the accused. The use of word "Shall" in later part of subsection (1) of section 342 signify that examination of the accused is compulsory and not optional. Rather, it is intolerant in the sense that if it is found by the trial court that any circumstances appearing in the 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. Section 342(1), Cr.P.C. further reveals that the object of the examination of the accused is, to give him an opportunity of explaining the circumstances, which lean to implicate him or likely to sway in arriving at a conclusion unfavorable 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 subsection 342(1), Cr.P.C. additionally advised that examination of the accused is not a mere formality but requirement. To my mind, the above words have been considerately added in the Section to make sure that the principle contained in the judicial proverb "Audi Alteram Partem" is fully complied with. Section 342, Cr.P.C. has two parts. The first part gives a discretion to the Court whereas the second part is mandatory. Under the first part the Court may put such questions to the accused which may be deemed appropriate in arriving at a just conclusion whereas, under second part examination of the accused is a must because purpose is to point out quiet points appearing in evidence against him and ask for an explanation. For the purpose of ready reference and convenience said section is reproduced as under:-- "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 enquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose afore said, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence".

12. It would be worthwhile to mention here that in some cases though it has been held that a fault or oversight which falls within the sort of "Curable irregularities" within the preview of section 537, Cr.P.C. does not vitiate the trial, yet, in certain cases where, the accused is not questioned at all, or his attention to an important piece of evidence which connect him with crime is not invited, the oversight so made would be incurable. In this regard reliance can be placed on 2001 SCMR 56, PLD 2001 SC 568.

13. In the present case, the learned trial Judge has not followed mandatory procedure in conducting the trial and has failed to question the appellant on material points of the case including the recovery of T.T pistol from his possession at the time of his arrest within the meaning of section 342, Cr.P.C, therefore, I am of the considered view that it would be in the interest of justice to remand the case. Resultantly, the impugned Judgment dated 7-6-2010 passed by the learned IVth Additional Sessions Judge, South Karachi is set aside and the case is remanded to the learned trial Court for its decision afresh in accordance with law with the directions that appellant be re-examined under section 342, Cr.P.C. and his attention be specifically invited to all the incriminating pieces of the evidence placed on record and he be provided opportunity to explain his position thereto. The appellant shall be at liberty to lead evidence in his defence or to appear himself as his own witness as provided by section 340(2), Cr.P.C., if likes so. MWA/A-114/K Order accordingly.