2018 PLP 2671 (YLR)

AFTAB AHMED GORAR, J.

Appellant Asif son of Abdullah was found guilty of committing murder and vide judgment dated 03.02.2016 passed in Session Case No. 359 of 2013 arising out of Crime No. 66 of 2013, Police Station Malir City, Karachi under Sections 302 and 34, P.P.C. The Appellant was convicted by the learned III-Additional Sessions Judge, Malir Karachi and sentenced the appellant under Section 265-H(ii), Cr.P.C. for committing offence punishable under Section 302(b), P.P.C. and sentenced to suffer imprisonment for life and also to pay fine of Rs.100.000/- as required under Section 544-A, Cr.P.C. which shall be paid to the legal heirs of deceased and in case of default appellant shall suffer, S.I. for one year more; however the benefit of Section 382(b), Cr.P.C. was also extended in favour of the appellant.

2. Precisely, the prosecution case as is envisaged in the FIR is that on the eventful day complainant Khamiso Khan received telephonic call that his son Zahid has been murdered after kidnapping from the house of his maternal uncle, listening so he told to his wife and other relatives not to register the case as he is coming to Pakistan and after making queries then he will lodge FIR. He remained in contact of his wife and his relatives. His wife disclosed that since then they had demanded the hand of Laila daughter of Nazar Muhammad for their son Zahid, his nephew Muhammad Asif son of Abdullah was issuing threats of killing to his son and she has also informed to the persons of the locality. On 21.03.2013 she and Zahid went at the house of her brother Faqeer Mohammad, at about 09.00 p.m. Zahid left the house of his house, in the way he was intercepted by Mohammad Asif and his three colleagues namely Akram, Kamran and Shoaib and forcibly took him towards Adil Farm in a Suzuki bearing No.C.P.-1431, who were seen by Abdul Karim and Haji Muhammad Amin, who informed to her. She informed the elders of the village and started search of her son, but she could not find him. On 22.03.2013 at 0915 hours she received information that dead body of Zahid was found near Adil Farm, where after identification of dead body and inquest report were carried out and FIR was lodged.

3. After registration of FIR, Investigation Officer SIP Sagheer Ahmed who arrested the accused persons and prepared memo of arrest and recovered the alleged Suzuki pick up and prepared memo of seizure of Suzuki Pick up bearing registration No. P-1431 thereafter investigation was entrusted to SIP Shahid Mehmood who prepared memo of pointation of place of incident: Investigation Officer also prepared memo of examination of dead body and inspection of venue of occurrence and seizure. Investigation Officer also recorded statement of prosecution witnesses. On the conclusion of investigation. challan was submitted against the Accused persons under sections 302 and 34, P.P.C.

4. Charge was framed against the appellant Asif as by the learned Additional Sessions Judge-III, Karachi vide Ex.2. To the charge. appellant did not plead guilty and claimed to be tried vide his plea at Ex.2/A.

5. After framing of the charge prosecution examined PW-1 Abdul Karim at Ex.3 who produced memo of arrest of accused and recovery of memo of pointation of place of occurrence as Ex.3/A and Ex.3/B respectively; PW-2 Muhammad Ali at Ex.4 who produced inquest report. memo of inspection of dead body along with roznamcha entry at Ex.4/A to Ex.4/B respectively; PW-3 Nadir Khan Burdi learned Judicial Magistrate at Ex.5 who produced letter, application submitted by SIP Shahid Mehmood for recording 164, Cr.P.C.; notice under Section 160, Cr.P.C. photographs of accused. CNIC and confessional statement of accused at Ex.5/A to Ex.5/F respectively. Prosecution has also examined PW-4 Khamiso at Ex.8 who produced statement under Section 154, Cr.P.C, copy of FIR and memo of site inspection at Ex.8/A to Ex.8/C respectively; PW-5 Haji Muhammad Ali at Ex.9. PW-6 Dr. Qarar Ahmed Abbasi at Ex.10 who produced post mortem report certificate of cause of death and letter to MLO at Ex.10/A to Ex.10/C and prosecution also examined PW-7 SIP Shahid Mehmood at Ex.11, thereafter learned DDPP closed the prosecution side vide statement at Ex.12.

6. Statement of appellant Asif was recorded under Section 342, Cr.P.C. at Ex.2 but appellant did not choice to examine defence witnesses in disprove of the charge as was framed against the appellant.

7. Learned counsel for the appellant argued that all the incriminating pieces of evidence were not put to the appellant at the time of recording statement under Section 342, Cr.P.C. It has been contended by the learned counsel that according to the prosecution case appellant by force of electric wire roped over neck of deceased Zahid caused death of deceased which too was recovered from the venue of occurrence, this question was not put to the appellant in the statement recorded under Section 342, Cr.P.C: per learned counsel Suzuki pick up wherein deceased Zahid was boarded by the appellant in collusion with co-accused and Investigation Officer has also recovered the said vehicle but this question was also not put to the appellant in the statement recorded under Section 342, Cr.P.C. such omission amounts to the denial of a fair opportunity to the appellant and it has caused serious prejudice to the appellant and proceedings have been vitiated. In support of his contentions relied upon the case of Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and unreported judgment of Hon'ble Supreme Court in Criminal Appeal No. 292 of 2009 dated 28-10-2010.

8. Seema Zaidi, learned Deputy Prosecutor General conceded to the above contention raised by the learned counsel for the appellant and recoded no objection for remand of the case to the trial Court; trial Court has passed conclusion upon various pieces of evidence and such questions have not been put from the appellant in the charge as well as in the statement under Section 342, Cr.P.C.

9. As regards to the contention of learned counsel for appellant that all the material pieces of evidence were not put to the appellant while recording the statement under Section 342, Cr.P.C. For this explanation, the Hon'ble Supreme Court held in the unreported judgment in Criminal Appeal No. 292 of 2009 dated 28-10-2010 in the case of Muhammad Hassan v. The State held as under:-- In view of the order we propose to pass there is no occasion for going into the factual aspects of this case and it may suffice to observe that the case of the prosecution against the appellant was based upon prompt lodging of the FIR, statements of three eye-witnesses, medical evidence, motive, recovery of weapon of offence and a report of the Forensic Science Laboratory regarding matching of some of the crime-empties with the firearm allegedly recovered from the appellant's possession during the investigation but we have found that except for the alleged recovery of Kalashnikov from the appellant's possession during the investigation no other piece of evidence being relied upon by the prosecution against the appellant was put to the appellant at the time of recording of his statement under section 342, Cr.P.C. It is by now a settled principle of criminal law that each and every material piece of evidence being relied upon by the prosecution against an accused person must be put to him at the time of recording of his statement under section 342, Cr.P.C. so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused person defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a trial. The case in hand is a case of murder entailing a sentence of death and we have truly been shocked by the cursory and casual manner in which the learned trial Court had handled the matter of recording of the appellant's statement under Section 342, Cr.P.C. which statement is completely shorn of the necessary details which were required to put to the appellant. We have been equally dismayed by the fact that even the learned Judge of the learned Division Bench of the High Court of Sindh deciding the appellants' appeal have failed to take notice of such a glaring illegality committed by the trial Court. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely an irregularity which had vitiated the appellant's conviction and sentence recorded. In the case of Muhammad Nawaz and others v. The State and others (2016 SCMR 267) Honourable Supreme Court of Pakistan has observed as under:-- .There is yet another aspect of the case. While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence"

10. I have perused the statement of accused recorded under Section 342, Cr.P.C. trial Court not put all the material incriminating pieces of evidences.

11. In the present case trial Court did not perform its function diligently and has taken the matter lightly and in a casual manner awarded punishment for imprisonment for life coupled with compensation as is provided under Section 544-A, Cr.P.C. It is by now a settled principle of criminal law that each and every material piece of evidence which is being relied by the prosecution against an accused must be put to him at the time of recording of his statement under section 342, Cr.P.C. so as to provide him an opportunity of fair trial to explain his position in that regard but it appears that in this case, a fair opportunity was not provided to the appellant. It defeats the ends of justice and failure to comply the mandatory requirement of law has vitiated the trial. Omission on the part of learned trial Court was not curable under section 537, Cr.P.C. It was illegality, which had been initiated against appellant Asif son of Abdullah's conviction and sentence recorded by the learned trial Court.

12. In the light of what has been discussed above, the conviction and sentence awarded to appellant under impugned judgment is set aside. Appeal is partly allowed. Case is remanded to the learned trial Court for trial afresh from the stage of recording statement of accused under Section 342, Cr.P.C. within (02) months, in accordance with Law. JK/A-6/Sindh Case remanded.