2006 PLP 1880 (MLD)

SARMAD JALAL OSMANY, J.

Both the aforementioned Appeals impugn the judgment, dated 15-11-2003 passed by the learned ATA Court No. V, Karachi, whereby all the Appellants were sentenced to death upon conviction for an offence under section 302(b), P.P.C. read with section 7(A) of the A.T. Act, 1997 as well as to a fine of . Rs.1,00,000 each and in default to undergo R.I. for six more months. They were also sentenced to suffer R.I. for two years and there years each for causing injuries to the injured persons as well as Appellant Muhammad Azam was sentenced to suffer imprisonment for life and his property was directed to be forfeited upon conviction of an offence under sections 3 and 5A of the Explosive Substances Act, 1908.

2. Briefly stated the Prosecution's case is that on the day of incident viz. 11-2-2002 at 8.15 a.m. when Ramzan Ali, Ahsan Ali, Muhammad Firdous, Nisar Hussain and Khadim Hussain were available inside their shops known as Pak Iranian Tea Company, Saddar, Karachi, the Appellant's arrived on two motorcycles, came into the shop and started random firing. Appellant Muhammad Azam also threw some explosive substance inside the shop, which caused a huge explosion/smoke. The owner of shop Ramzan Ali expired at the spot as a result of injuries received due to firing whereas Ahsan Ali and Firdous Khan were injured. After the usual investigation etc., the Appellants were arrested along with Arms and Ammunition where after they were sent up for trial before the learned A.T. Court No. II. A charge was framed against the Appellants to which they pleaded not guilty and claimed their trial.

3. In support of the case the Prosecution examined a number of witnesses i.e. P. W.1 P.C. Muhammad Arshad who produced 154, Cr.P.C. statement of Complainant Ahsan Ali, and the F.I.R., P.W-2 H.C. Chaudhry Manzoor, P.W.3 Sadiq Ali who produced the memo. of dead-body and inquest report, P.W.4 A.S.-I. Muhammad Akram Khokhar, who produced entries in the Police diary regarding the incident as well as receipt of dead body, P.W.5 Tapedar Hamid Ali, who produced the sketch of the place of incident, P.W.6 Dr. P. Jaserani, who produced the Medico Legal Certificate of Firdous Khan, Ahsan Ali, Muhammad Ramzan as well as post-mortem notes etc., P.W.7 H.C. Noor Muhammad who produced memo. of arrest of the Appellants, P.W.8 Ahsan Ali who produced the notice etc., served upon him for the purpose of recording his. 164, Cr.P.C. statement and identification parade of the Appellants, P.W.9, Nisar Hussain, P. W.10 Muhammad Firdous, P.W.11, Muhammad Iqbal, Inspector of Bomb Disposal Unit, who produced his report, P.W.12, Inspector Wajahat Hussain, P.W.13 Muhammad Hussain, who produced the memo. of Inspection of the place of incident, P.W.14 D.S.P. Aamir Hameed who produced the memo. of arrest of the Appellant, P.W.15 Judicial Magistrate Lubna Yousuf who produced the memo. of identification parade of the Appellants and the 164, Cr.P.C. statements of the various P.Ws., P.W-16 Muhammad Akram who produced the chemical examiner's report and that of the ballistic expert.

4. Statements of the Appellants were recorded under section 342, Cr.P.0 in which they denied the Prosecution case in toto and pleaded their innocence. However, they neither examined themselves on Oath nor produced any evidence in their defence.

5. The learned A.T. Court after hearing the arguments of learned S.P.P. as well as counsel for the Appellants, convicted and sentenced them as aforestated.

6. Mr. M.R. Sayed appearing for the Appellants in ATA 62 of 2003 has submitted that there is a fundamental legal flaw in the trial of the Appellants which has resulted in a grave miscarriage of justice. In this regard, he has invited our attention to the examination of the Appellants recorded by the A.T. Court under section 342 of the Cr.P.C. According to learned Counsel the question put to the Accused by the learned A.T. Court are not based on the facts/evidence of the case as for example no individual role has been assigned to each of the Appellants in the crime in question whereas this has come out very clearly in the evidence recorded by the A.T. Court. Hence, per learned Counsel, due to the defective recording of their 342, Cr.P.C. Statements the Appellants have been gravely prejudiced since they were not made aware of the exact nature and dimension of the Prosecution case against them and as a result of which they were unable to prepare their defence accordingly. Finally, per learned Counsel, even the learned Presiding Officer has not signed such statements, which causes grave doubt in the matter. Hence, he has prayed that per settled law the case should be remanded back to the learned A.T. Court for re-trial at the stage of the 342, Cr.P.C: statements of the appellants. In support of his submission, learned Counsel has relied upon Farid v. The State (1991 PCr.LJ 1415), Mst. Azima v. The State PLD 2001 Quetta 1, Allah Rakhio v. The State (2001 PCr.LJ 1959), Liaquat Ali v. The State (2002 PCr.LJ 230), Sajjad Hussain Bhatti v. The State (2001 PCr.LJ 1808) and Muhammad Kalam v. The State (1999 MLD 55 FSC).

7. Mr. Nizamani and Mr. Sarfaraz Khan Tanoli as well as the learned A.A.-G. have seconded the submission of Mr. M.R. Sayed.

8. We have heard learned Counsel as well as learned A.A.-G. and our conclusions are as follows.

9. It would be seen that the purpose of recording the accused's statement under section 342, Cr.P.C, is to inform him/them of the Prosecution case so that he is enabled to explain any circumstances appearing in the evidence against him and also for the purpose of preparing his defence. Such statement is in the form of questions and answers and to be recorded per section 364, Cr.P.C. i.e., in the English language and if the Accused does not understand the same, it shall be explained to him in the language, which he understands. Thereafter the statement is to be signed both by the Judge and the Accused and a certificate is to be appended by the Judge that the statement contains a full and true account of the same.

10. In the present matter upon perusal of the Appellant's statements under section 342, Cr.P.C. it appears that each of the Appellants have been asked the same questions to which they have given the same reply although per the evidence brought on the record the role of each Appellant is distinct in the crime in question. Similarly, it would be seen that neither the learned Judge has signed the statement nor the certificate. Consequently, in our view, particularly, as the entire Prosecution's case has been brought home to the Appellants, they have been prejudiced, as they were not able to explain themselves in the facts and circumstances of the case. Hence for the foregoing reasons the impugned judgment is set aside and the matter remanded back to the learned A.T. Court to be proceeded at the stage of recording the Appellants 342, Cr.P.C. statements, which shall be done in the light of the evidence available on the record.

11. The above are the reasons for the short order passed, by us earlier to the same effect. S.M.B./T-17/K Case remanded.