2020 PLP 609 (MLD)

RAZA ALI KHAN, J.

The captioned appeals, filed against the judgment dated 09.06.2005 passed by the District Criminal Court Sudhnooti, Pallandri, raised common questions of facts and law and arise out of common judgment, hence, were heard together and are decided through this single judgment. Precise facts of the case are that Muhammad Siddique filed written application at police station Baloch on 19.09.2000 stating therein that today i.e. 19.09.2000, he was present at his house. His mother Mst. Alif Noor was also living with him. At about 3:00 p.m. accused Muhammad Sher Khan, Muhammad Maroof, Resham Jan and Riasat Jan were cutting grass from shamlat deh land adjacent to the land of complainant. In the meantime, Mst. Alif Noor reached there and asked the accused why you are cutting grass from our land? Whereupon, accused Muhammad Sher started abusing her and raised lalkara, don't leave her, kill her. Accused Muhammad Maroof, Resham Jan and Riasat Jan reached near Alif Noor. Accused Muhammad Maroof caught her from neck and blocked her breathing. Accused Resham and Riasat Jan hit her kicks and fists blow. Resultantly, Alif Noor died on spot. It was stated that the accused committed the offence with the connivance of accused Muhammad Azam. The occurrence was witnessed by Muhammad Illyas, Muhammad Arshad, Zareen Begum and Shahida Begum. The motive behind the occurrence was a dispute over shamlat deh land. On this report, FIR No.44/2000 was registered at police station Baloch in the offences under sections 302 and 34-PC on 19.09.2000. The police after investigation submitted challan before District Criminal Court Sudhnooti on 03.10.2001. The statements of the accused under section 265D, Cr.P.C. were recorded on 31.01.2002 who pleaded not guilty, whereupon the prosecution was asked to lead evidence in support of the allegation. At the completion of prosecution evidence, the statements of the accused under section 342, Cr.P.C. were recorded on 30.05.2005 who again claimed to be innocent. At the conclusion of the trial the learned District Criminal Court convicted accused Muhammad Maroof under section 302, A.P.C. and awarded him sentence of Diyat Rs.3,50016/- vide impugned judgment dated 09.06.2005, hence, appeal No.03/15 for setting-aside the impugned judgment and Appeal No.04/05 for enhancement of sentence awarded to accused-respondent No.1 and conviction of accused-respondents Nos.2 and

3. The learned counsel for the parties have addressed the Court in light of their respective stand, however, in view of the proposed conclusion, the arguments advanced by the learned counsel for the parties need not to be discussed. We have heard the learned counsel for the parties and gone through the record of the case. A perusal of the statements of the accused recorded under section 342, Cr.P.C. transpires that documentary evidence (1) Exh.PD, site plan, (2) Exh.PE, details of site plan, (3) Exh.PH, postmortem report which is incriminating piece of evidence, were not put to the accused during statement under section 342, Cr.P.C. The learned counsel for the parties also agreed with the situation that important questions were not put to the accused while recording the statements of the convict appellants under section 342, Cr.P.C. The object of examining the accused under section 342, Cr.P.C. is that all the relevant evidence and material produced against him by the prosecution to establish grounds for criminal penalty may be put to him so that he may explain his conduct in respect of such incriminating material. The conviction of an accused person cannot be based on such material or evidence which is not put to the accused at the time when his statement under section 342, Cr.P.C. is recorded. It is now a settled principle of 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 the mandatory requirements vitiates the trial. The case in hand is a case of murder entailing a sentence of death and we have truly been dismayed by the causal manner in which the learned trial Court had handled the matter of recording accused's statement under section 342, Cr.P.C. Omission on the part of trial Court is not merely an irregularity curable under section 537, Cr.P.C. but the same is downright illegality which had vitiated the accused conviction and sentence recorded by trial Court. As stated above, important documentary evidence was not put to the accused, therefore, the conviction of the accused is illegal. If a piece of evidence is not put to an accused while recording his statement under section 342, Cr.P.C., the appellate Court has the option either to remand the case for re-examination of the accused or exclude such piece of evidence from consideration. In this regard, a reference can be made to case titled, Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524, the relevant observation recorded at page 534 is reproduced as under: "

8. The next question which needs resolution is as to whether the motive in the instant case has not been proved merely because the incidents of 22.06.1985 and 23.06.1985, were not put to the accused persons while they were examined under section 342, Cr.P.C. It may be observed that 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 the circumstances of this case, we are of the view that remand of the case is justified because in this case the purgation of the prosecution witnesses was also not conducted which was necessary to be conducted. Under section 26(2) of the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974 purgation of prosecution witnesses is necessary and any judgment pronounced without purgation of the witnesses is illegal. For ready reference section 26 of the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974 is reproduced as under: The provisions of section 26(1) of the Islamic Penal Laws Act, 1974 have also been elaborated by the Supreme Court of Azad Jammu and Kashmir in case titled Hassan Muhammad v. The State (PLD 1989 Supreme Court (AJ&K) 5 and in para 40 of the judgment observed as under:- "In case reported as Hassan Muhammad v. The State (PLD 1989 SC (AJ&K) 5); the Supreme Court under almost the similar circumstances when it was opined by a member of the District Criminal Court that Tazkia of the witnesses is not necessary in view of the reasons listed in the order, it was held that purgation is a part of the trial of the case and omission on the part of the Court, not to do so, is violative of the provisions of section 26(1) of the Islamic Penal Laws Act, 1974 and the judgment pronounced without the purgation of the witnesses renders the same to be illegal. The legal heirs of the deceased had sought enhancement of sentence by way of appeal before the Shariat Court. It could so order, if evidence so allowed. But can it be awarded in the absence of Tazkia? It is not mistake of perception, but ignorance of law to say that Tazkia was not required." Keeping in view the above lapses/omissions on the part of trial Court, while setting aside the impugned judgment, the case is remanded to the trial Court for re-trial of the case from the stage of recording the statements of accused under section 342, Cr.P.C. and for re-writing the judgment after conducting purgation of the prosecution witnesses as is required under section 26(2) of the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974. SA/62/HC(AJ&K) Case remanded.