2013 PLP 2734 (YLR)

ABDUL RASOOL MEMON, J.

This appeal is directed against the Judgment dated 1-3-2012 by the learned VIIIth Assistant Sessions Judge, Karachi East whereby learned trial Judge convicted the appellant under section 392/34, P.P.C. and sentenced him to undergo R.I. for 7 years and to pay fine of Rs.10,000/- or in default to undergo R.I. for one month.

2. F.I.R. Exh. 13/B was registered on 7-8-2011 at 0330 hours at Police Station Soldier Bazar, Karachi by the complainant Taha Hussain son of Muhammad Tasleem Rajput under sections 392/34, P.P.C. against the present appellant and two other absconding accused, on the basis of which, investigation of this case was taken up, resulting wherefrom appellant was tried, convicted and sentenced as mentioned above.

3. The complainant had stated therein that on 6-8-2011 at about 2300 hours, he was going towards his house on Motorcycle, when he reached at Saint Lawrence School, Garden East, suddenly three perpetrators intercepted him on a Motorcycle and on the pointation of the weapons they snatched Nokia 3110 Cell set from him and fled away. He went to his house in the intervening time, he received a phone call at his home from police official to the effect that one perpetrator has been detained and from his possession his robbed cell phone has been recovered, hence he came at Police Station and saw that one accused namely Muhammad Hateem son of Altaf Hussain (appellant herein) was in police lockup and said accused disclosed names of his two other companions to be Bilal and Umer and as such he lodged F.I.R. During the trial proceedings, the appellant denied the guilt and claimed the trial. In support of its case, the prosecution examined the complainant Taha Hussain (P.W.1), who produced F.I.R. Memo of arrest and place of occurrence at Exh.13/B to 13/C. Investigation Officer, Manzar Ali Shah, A.S.-I. (P.W.2), Duty Officer A.S.-I. Mian Khan (P.W.3).

4. The appellant was examined under section 342 Cr.P.C. who denied the allegations of the snatching of cell phone from the complainant and submitted that he desired to examine one Shabir Hussain in his defence. However, the appellant produced another D.W. by name Majid Hussain at (Exh.8) whose examination-in-chief was recorded on 17-11-2011 and for want of Court time his cross-examination had been reserved but after the said D.W. did not turn up for cross-examination. After the completion of the trial, the learned trial Court passed the Judgment of conviction in the aforesaid manner, hence this appeal.

5. At the very outset, learned counsel for the appellant has raised preliminary objections to the effect that the appellant was not defended properly before the trial Court as the witnesses produced by the prosecution were neither examined by his advocate nor trial Court has bothered to cross-examine said witnesses in order to extract the truth to arrive at a just decision of the case, therefore, conviction and sentence awarded to him is not sustainable under the law. He further argued that though the appellant was charged for committing robbery of Nokia Cell phone from the complainant and recovery of said Nokia phone from his possession has been taken as an incriminating piece of evidence in recording conviction against him, in spite of that, trial court has ignored to question the appellant to the extent of said recovery within the ambit of section 342, Cr.P.C., therefore, impugned judgment has been passed contrary to law. He further argued that even learned trial Court has been failed to record statement of the appellant under section 342, Cr.P.C. within the preview of section 364, Cr.P.C. and therefore, on that account also impugned judgment cannot be said to be lawful judgment. He further argued that appellant is behind the bars since 7-8-2011 till date without any justification and further so many flaws have been found in the evidence of the prosecution witnesses but same were ignored by trial court and without adopting proper legal recourse provided under the law for fair trial, conviction has been awarded to the appellant, therefore, the impugned judgment is not sustainable.

6. On the other hand, leaned A.P.-G. has very candidly conceded the above legal position and submitted that appellant may be afforded an opportunity to defend himself through counsel of his choice by remanding the case to learned trial court and for cross-examination of the witnesses and re-examination of the appellant under section 342, Cr.P.C.

7. I have perused the record of the case and am of the view that the prosecution witnesses produced before the Court during the trial proceedings have been cross-examined by the appellant himself. In these circumstances, duty was conferred upon the trial court to cross-examine the witnesses to extract the truth to arrive at a just decision of the case. However, in instant case learned trial Court had not conducted trial in accordance with section 340, Cr.P.C. and Article 161 of Qanun-e-Shahadat, 1984. Although appellant has cross-examined the prosecution witnesses by himself but his ability to cross-examine the witnesses cannot be substituted of cross-examination by a counsel as held in a case of Syed Saeed Muhammad Shah v. The State (1993 SCMR 550). I have further observed here that statement of the appellant in terms of section 342, Cr.P.C. had not been recorded in accordance with its spirit and as such departure there from is not permissible. The use of word "shall" in latter part of subsection (i) of section 342, Cr.P.C. indicate that the examination of the accused is mandatory and not discretionary. If after conclusion of trial it is found by the trial Court that any circumstances appearing in evidence against the accused is lightly helpful towards his conviction then the court would not be competent to take the same in account without questioning him on that point so that accused may be able to explain his position properly. Admittedly, in this case though learned trial court while awarding conviction to the appellant has observed in impugned judgment at page No.4 that appellant was apprehended with robbed mobile phone, yet said question was not put from the appellant while recording his statement under section 342, Cr.P.C. thereby he was deprived from explaining position to that extent. For ready reference and convenience section 342, Cr.P.C. reads as follows:

"

342. 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 inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."

9. Moreover, it has been further observed from the perusal of the record that statement under section 342, Cr.P.C. of the appellant had not been recorded in accordance with second part of section 364 Cr.P.C. which provides that Judge 'shall' certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.

10. It is worthwhile to mention here that in some cases though it has been held that an error or omission which falls within the category of "durable irregularities" in terms of section 537, Cr.P.C. does not vitiate the trial, yet in some of the cases where the accused is not questioned at all, or his attention to an important piece of evidence implicating him with the commission of an offence is not invited, the omission so made would be fatal. In this regard reliance can be placed on a case of Munir Ahmed alias Munni v. The State (2001 SCMR 56), Rattan Singh v. State of Himachal Pradesh (AIR 1997 Supreme Court 768) and Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 Supreme Court 1622).

11. As in the case in hand, the learned trial Judge has not adopted proper procedure in concluding the trial as discussed hereinabove, therefore, I have left no option except to remand the case. Resultantly, the impugned judgment dated 1-3-2012 passed by the learned VIIIth Assistant (Sessions Judge Karachi East is set aside and case is remanded to the trial court for its decision afresh in accordance with procedure provided under the law with the directions that the appellant be provided an opportunity to cross-examine the witnesses through counsel and further re-examine appellant under section 342, Cr.P.C. in accordance with provision of section 364, Cr.P.C. by inviting his attention to all the incriminating pieces of evidence laid on record and he be provided opportunity to offer his explanation with regard thereto. The appellant shall be at liberty to lead evidence in defence or appear himself as his own witness in terms of section 340, Cr.P.C. if he desires so.

12. As regards detention of the appellant in jail from his date of arrest till date is concerned as pointed out by the learned defence counsel, he may approach to the trial Court for bail and trial court shall decide the same in accordance with the law. In the above terms the appeal in and is hand is disposed of. MWA/M-117/K Order accordingly.