1986 P Cr (PLP)

2. The facts of the case are that on 15th January, 1977, complainant Muhammad Safdar was sleeping in his house when at 2‑00 a.m. he woke up on the barking of dogs and found his one bullock, which was tethered inside his hedge, to be missing. He called his neighbours Muhammad Soomar, Saleh and others and found footprints of thieves going alongwith the footmarks of the bullock. While tracing the footprints, they reached the bridge of Gujro‑Wah, where they found the police party having already captured two thieves alongwith a bullock. Complainant Muhammad Safdar identified the bullock to be the same which was removed from his cattle pen. He also identified the two culprits who were in custody of the police as Peeroo and Salik.

3. The police party who was holding Nakabandi at the bridge of Gujro‑Wah consisted of A.S.I. Muhammad Ibrahim, H.C. Muhammad Ibrahim and others of Daur Police Station, District Nawabshah. They were in a jeep and had found the two persons i.e. Salik and Peeroo carrying a bullock. On suspicion they had caught both the accused/ applicants and were still at Mori when the complainant party arrived.

4. The police party had brought the two accused /applicants alongwith the bullock to Police Station Daur where Muhammad Safdar logded F.I.R. Mr. Muhammad Ibrahim A.S.I. had conducted the investigation and challaned the case for trial before the learned Magistrate.

5. In support of the prosecution case following witnesses have been examined:‑ (1) Muhammad Safdar complainant Exh. 5. (2) Muhammad Saleh Exh. 6. (3) Muhammad Ibrahim son of Umaid Ali, H.C. Exh. 8. (4) Alam Khan Mashir Exh. 10 and (5) Muhammad Ibrahim son of Haji Ghulam Hussain A.S.I. Exh. 11.

6. Muhammad Safdar and Muhammad Saleh have stated about the theft, while Muhammad Ibrahim H.C. and Muhammad Ibrahim A.S.I. have deposed about capturing the two culprits at Gujro‑Wah bridge on the canal alongwith the bullock.

7. Learned counsel for the applicants have pointed out that one very material question was not put to the applicants during their statements under section 342, Cr.P.C. i.e. whether they were captured at Gujro‑Wah Canal by the police party alongwith a stolen bullock. They were only inquired whether they committed lurking house trespass in the house of the complainant and whether they committed theft of complainant's bullock. The other questions were formal. Thus, a material circumstance which has appeared in prosecution evidence against the two applicants, was not put to them during their examination under section 342, Cr.P.C. Unfortunately this irregularity was not noticed either by the trial Court or the first appellate Court.

8. It has been argued that the above irregularity has caused prejudice to the accused/applicants as a result of which the trial is vitiated. In support of this plea they have relied on the case of Sher. Ahmed v. The State P L D 1976 Pesh.

90. In this case it was held by a Division Bench that all pieces of incriminating evidence against an accused should be put to him during his examination under section. 342, Cr.P.C. and he should be afforded an opportunity to render explanation about those circumstances. It was further held that failure to comply with this requirement would cause prejudice to the accused. In the case of Din Muhammad v. Crown 1969 S C R9 R 777 it has been held that all circumstances from which inferences adverse to the accused can be drawn, should be put to him when he is questioned under section 342, Cr.P.C. It was further held that failure to comply with this mandatory requirement of section 342, Cr.P.C. is a serious omission.

9. In view of the above decisions it is clear that the leaned trial Judge has committed a material irregularity which has caused prejudice to the accused /applicants and consequently has vitiated the trial. Both the revision applications are allowed and the conviction and sentences are set aside. The question is whether the case should be remanded to the trial Court for retrial. The applicants were sentenced to 12 months' R.I. each out of which they have already suffered 6 months' detention during trial and after conviction. The case pertains to the year 1977. They were challaned in January, 1977 and were convicted by the trial Court on 29‑6‑1982 i.e., after a protracted trial lasting for 5 years. Their appeal before the Second Additional District Judge Nawabshah took further two years to decide. Thus, they have already undergone the agony of protracted trial. In view of the circumstances it would not be just and proper to remand the case to the trial Court. Both the revision applications stand disposed of accordingly. S. G. D. Applications allowed.