2003 PLP 2897 (YLR)

MUHAMMAD YUNUS SURAKHVI, C.J.‑

In the above titled appeal an application has been moved on behalf of the complainant‑appellant by Mr. Abdul Majid Mal lick, the learned counsel, for permission to re‑examine the accused‑respondents under section 342, Cr.P.C. in order to seek their explanation through evidence led against them.

2. The necessary facts are that respondents (i) Muhammad Yaqub, (ii) Muhammad Yusuf son of Sultan Alam, (iii) Manzoor son of Barkat Ali, (iv) Muhammad Yusuf son of Allah Rakha, (v) Munir Ahmed son of Rehan Dad, (vi) Muhammad Khan son of Nek Alam, (vii) Muhammad Sharif son of Alam Din, (viii) Muhammad Razaq son of Sarfraz, (ix) Pehlwan son of Reham Dad, (x) Muhammad Ishaque son of Shah Muhammad, (xi) Ahmed Khan son of Fateh Ali, (xii) Iqbal son of Barkat Ali, (xiii) Muhammad Siddique son of Baz Khan, (xiv) Qurban son of Said Alam, (xv) Sardar Khan son of Nek Alam, (xvi) Fayaz son of Allah Dad and (xvii) Bashir Ahmed alias Shadia son of Reham Dad have been facing trial before the District Court of Criminal Jurisdiction Kotli for allegedly committing the offences under sections 5, 15, I.P.L. read with sections 147, 148, 149, 447, 427, 307 and 34, A.P.C. After the conclusion of the trial, Muhammad Yaqub, convict‑respondent, was awarded the sentence of death by the trial Court, whereas accused respondents Nos.2 to 6 were awarded 10 years' rigorous imprisonment each alongwith fine of Rs.50,000 each to be paid to the legal heirs of deceased as Diyyat. The rest of the accused‑respondents Nos.7 to 17 were acquitted as the prosecution failed to bring the guilt home to these accused respondents. On appeals before the Shariat Court, the sentence of death awarded to Muhammad Yaqub was converted into life imprisonment and the accused respondents Nos.2 to 6 were acquitted by extending them the benefit of doubt while the acquittal order passed by the trial Court in favour of accused‑respondents Nos.7 to 17 was maintained.

3. Fazal Ellahi, appellant herein, has filed this appeal for enhancement of sentence of Muhammad Yaqub from life imprisonment to death sentence and for conviction of rest of the accused respondents. During the pendency of appeal, an application has been moved by Mr. Abdul Majid Mallick, the learned counsel for the complainant‑appellant, that the accused‑respondents may be re‑examined under section 342, Cr.P.C. so that they may explain the incriminating material, It is alleged in the application that during the examination of accused‑respondents under section 342, Cr.P.C. the trial Court inadvertently failed to put the evidence, namely, the post‑mortem report, blood stained clay, site‑plan, chemical examiner's report and Forensic Expert's report to the accused‑respondents. This omission, according to the learned counsel for the complainant‑appellant has come to the notice and soon after coming into knowledge, an application was moved promptly.

4. Ch. Muhammad Azam Khan, the learned counsel for the accused‑respondents, has no objection if the above material is put to accused‑respondents And they are re examined under section 342, Cr.P.C.

5. After hearing the learned counsel for the parties, it may be stated that it transpired from the record that in a connected case titled Muhammad Yaqub v. State (Criminal Appeal No.27 of 2001) the prayer of Ch. Muhammad Azam Khan, who represents the accused persons, is the same as has been made in this case‑ by Mr. Abdul Majid Mallick. If the prosecution or the complainant has no objection to re‑examine the accused respondents under section 342, Cr.P.C., then, as contended by Ch. Muhammad Azam Khan, this Court has no objection as the proceedings in this file even otherwise cannot be taken up independently in view of non completion of connected case.

6. Even otherwise the provisions of section 342, Cr.P.C. are mandatory in nature and if the incriminating material is not put to accused under section 342, Cr.P.C. the same cannot be read against the accused; in such an eventuality either that piece of evidence is to be excluded from consideration or the case is to be remanded to the trial Court for re examining the accused under section 342, Cr.P.C. Our aforesaid view is supported by a case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 wherein it was observed as under:‑ "If a piece of evidence is not put to an accused person in his examination under section 342, Cr.P.C., either the case may be remanded for re examination of the accused person under section 342, Cr.P.C., or the same may be excluded from consideration." In another case reported as Shakeel, Ahmad v. The State PLD 1998 SC (AJ&K) 31 it was observed that the accused was convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, merely on the ground that a big quantity of 23 bottles of whisky was recovered from him which itself was a fact to prove that the accused was bringing the said liquor for the purpose of selling. It was held that the observations of the Courts below were based on conjectures and surmises as no iota of evidence was on the record to suggest that the accused was involved in selling the intoxicant. The recovery of mere big quantity of intoxicant per se was no ground for recording conviction of accused under section 3 of the aforesaid Act for the purpose of selling the intoxicant particularly so when out of 23 bottles, 21 bottles were not sent to Chemical Examiner for examination. In absence of report of Chemical Examiner, it could not be said with regard to 21 bottles as to which type of material those were containing. Whether those bottles were containing intoxicant material or not was a mere suspicion which could not be a substitute of a proof which was strictly required in a criminal case to be proved against the accused. Out of 23 bottles of whisky, allegedly recovered from the accused, only two were sent to Chemical Examiner for his report and his report was positive but the incriminating piece of evidence was not put to accused while recording his statement under section 342, Cr.P.C. and no explanation was sought from him. It was held that mandatory requirements of section 342, Cr.P.C. having not been fulfilled in the case by the Courts below, conviction of accused could not be recorded under section 4 of the aforesaid Act.

7. The application, therefore, moved by the complainant‑appellant is allowed. By accepting the appeal and setting aside the, sentence, the case is remanded to the trial Court with the direction that it shall put the incriminating material mentioned in the application to the accused‑respondents for seeking their explanation. If the accused respondents want to produce evidence in rebuttal, they will be provided one more opportunity to produce the same. Thereafter the arguments will be reheard by the trial Court and the Court shall proceed according to law. H.B.T./377/SC(AJ&K) Case remanded.