P L D 2005 Karachi 18 (PLP)

9. After considering the 'material available on record and hearing, the parties' counsel, the learned trial Judge convicted the appellants as mentioned above, under the impugned judgment.

10. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present Appeal. As the trial Court had awarded death sentence to the appellants Nazeer Ahmed and Dilawar Hussain, therefore it has sent the Reference for confirmation of the death sentence. The complainant Suhrab Khan was dissatisfied with the sentence awarded to the appellants Ghulam Ali, Asghar Ali and Dr. Abdul Jaleel, therefore, he has preferred the Criminal Revision Application for enhancement of their sentence from imprisonment of life to death.

11. We have heard the parties' Advocates, State counsel in the matters and perused the record of this case very carefully.

12. The learned Advocate for the appellants has argued on factual and on legal aspects of the case. He has pointed out defects in the evidence, which consists of motive, ocular testimony and recoveries. On the legal aspect he has pointed out defects in the charge and statements of the appellants recorded under section 342, Cr. P. C.

13. First, we will take up the legal aspect of the case. The learned Advocate for the appellants has argued that the trial Court did not frame the charge in accordance with law, as there are material defects in it. He has pointed out that while framing the charge under section 148, P.P.C. the appellant Dr. Abdul Jaleel, has also been shown armed with deadly weapon whereas the case of prosecution is that he was empty handed; that while framing the charge under sections 302 and 149, P.P.C., the role assigned to each appellant has not been mentioned but a charge on general terms was framed; that no separate charge for offence under section 302, P.P.C. was framed against the appellants Nazeer Ahmed and Dilawar who caused hatchet injuries to the deceased persons; that the section 149, P.P.C. is divided into two parts but the charge did not show as to under which of these parts the appellants were charged. He has pointed out the same defects in the charge under section 324 read with section 149, P.P.C. He has also argued that the trial Court was not justified in framing the charge under section 114, P.P.C against the appellant Dr. Abdul Jaleel, as the allegation against him was of only instigation, therefore, he has stated that the appellants were misled in their defence and the trial has vitiated.

14. With regard to statement under section 342.Cr. P.C. the learned Advocate for the appellants has stated that the first three questions are the reproduction of the charge; that the evidence appearing against each appellant has not been put to the appellants to obtain their explanations, as such the appellants were deprived of giving their proper explanations to the evidence alleged against them by the prosecution witnesses. Therefore, the appellants were prejudiced in their defence. He has relied upon the cases of Muqadar v. State (1987 SCMR 1015). Amir Hussain v. State (PLD 1971 Karachi 68) and Babar Ali v. State (PLD 1968 SC 372) on the propositions that section 149 PPC is divided to two parts, vicarious liability and the conviction of accused by application of section149, P.P.C. in a murder.

15. On the other hand, learned Advocate for the complainant has stated that the errors in framing the charge can be cured under sections 225 and 537, Cr.P.C.; that no prejudice has been caused to the appellants in framing the charge or recording of the statements under section 342, Cr. P. C.; that the statements of the appellants contained all the allegations of the prosecution levelled against them in the evidence therefore, it has also not caused any prejudice to the appellant, or 'occasioned a failure of justice.

16. The learned State counsel has stated that the defects in the charge are curable under sections 225 and 537, Cr.P.C.; that the defects in recording the statements under section 342, Cr.P.C. are not curable as the evidence led against each appellant was separate and different, as such the said pieces of evidence should have been put to the appellants so as to obtain their explanations which has not been done. He has further stated, that even the evidence of blood-stained clothes and blood-stained hatchets have not been put to the appellants for obtaining their explanations, therefore, a miscarriage of justice has occurred.

17. We have given due consideration to the arguments and have examined the various provisions of law and rulings cited at the bar. The learned trial Judge while framing the charge under section 148, PPC shows that all the appellants were armed with deadly weapons whereas the case of the prosecution is that the appellant Dr. Abdul Jaleel was empty-handed. Now it is to be seen as to whether in an unlawful assembly if some persons are armed with deadly weapons and some persons are not armed with deadly weapons or empty-handed then the charge can be framed against them or not. For proving the charge under section 148, P.P.C., following six ingredients are essential:-- (i) five or more persons were assembled; (ii) they constitute an unlawful assembly; (iii) the members of such assembly used force or violence; (iv) the accused was -a member of that unlawful assembly; (v) in prosecution of the common object the assembly used force:, and (vi) the accuses was armed with deadly weapon or anything used as a weapon lot offence likely to cause death.

18. In the present case, the assembly was of five persons. The allegation was that it was unlawful and the assemble had used the force. The appellants were members of said unlawful assembly. Their common object was to use force and that some of the appellants were armed with deadly weapons. In such a situation, a charge can be framed against all the five persons. But while awarding the sentence a distinction has to be made in respect of the accused, who were armed with deadly weapon or otherwise. If the appellants were found to have been armed with deadly weapons then they can be convicted under section 148, PPC. Whereas) the other appellants who were not armed with deadly weapons or empty, handed can be convicted under section 147, P.P.C. By virtue of section 237, Cr.P.C. an accused person, who even is not charged, can be convicted for lesser offence; therefore, this defect in the charge is curable under the provisions of sections 225 and 537, Cr.P.C.

19. As regards the objection of the learned Advocate for the appellants that the particulars of the role assigned to each appellant are not mentioned in the charge or no separate charge for offence under section 302, P.P.C. against the appellants Nazeer Ahmed and Dilawar was framed or the charge of 149, P.P.C. does not mention its parts, therefore, the charge is defective. No doubt these are errors in the charge but the said errors can be cured under section 225, Cr.P.C., which reads as under:- "

225. Effect or errors.--No error in stating either the offence or the particulars required to be stated in the charge, and not omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."

20. From the above provision of law, it is clear that even if the particulars required to be stated are not mentioned in the charge then the errors are curable subject to conditions that the accused is not misled or it has not occasioned a failure of justice. Similar is the cafe with regards to the objection about the charge under section 114, P.P.C. The important point for consideration is whether these defects had misled the appellants or it has occasioned a failure of justice. In this connection illustration, `D' of section 225 is reproduced which explains the said point more clearly. It reads as under: "(d) A is charged with the murder of Khuda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haider Baksh, and the date of the murder was the 20th January, 1882. A never was charged with any murder but one, and had heard the [trial], before the Magistrate, which referred exclusively to the case of Haider Baksh. The Court may inter from these facts that A was not misled and that the error in the charge was immaterial. "

21. Furthermore a perusal of sections 225, 232, 535 and 537 of Cr.P.C. shows that every conceivable type of error and irregularity referable to a charge that can possibly arise can be cured. The error or irregularity may range from the cases in which there is a conviction with no charge at all. That may be from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Cr.P.C. is emphatic that whatever the irregularity may be it is not be regarded as a fatal unless there is prejudiced. A reference invited to 1980 SCMR 402 (Nadir Shah v. State).

22. In the present case, it is pointed out that before the case proceeded the appellants were provided all the required documents under section 265-C, Cr.P.C. The said documents contained all the details of the allegations and the evidence purported to be produced against each of them. Thus, the appellants came to know the entire case of the prosecution and allegations levelled against each of them by the prosecution even before the framing of the charge. While framing the charge the trial Court committed the above errors, as the charge was not happily worded. It- is pointed out that a seasoned and senior counsel represented the appellants. After framing of the charge, he did not raise any objection in framing such a charge. He also did not apply for making any alteration or amendment in the charge at any stage of the trial by invoking the provisions of section 227, Cr.P.C. to make the charge in conformity with the prosecution allegations. However, the case proceeded: The evidence was led in which the witnesses deposed the prosecution allegations against each appellant. The appellants cross- examined each witness at length and put their defence to the witnesses in it. During that period also the Advocate for the appellants did not raise any objection or pointed out to the trial Court that the framing of the charge and evidence had misled them in their defence. Even at that stage, the appellants could have requested the Court for altering or amending the charge but the appellants kept quiet, which clearly shows that they were not prejudiced or mislead in their defence. It is pointed out that under Explanation- clause of section 537, Cr.P.C. it is provided that in determining whether any error, omission or irregularity in any proceedings under the Code of Criminal Procedure has occasioned a failure of justice, the. Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. In the 'present case, the appellants could have raised objection but they did not do so If they felt that an error or irregularity in the charge misled them or the same had occasioned a failure of justice, then they should have raised such objection at that stage but they did not do conduct on the part of the appellants clearly indicates that they were satisfied with the charge and they were not being misled by such charge. It has been held in a case of Nadir Shah v. State (1980 SCMR 402) at page 409, as under:-- "Before dealing with the questions relating to the merits. it is necessary to refer to the curing provisions in section 225, Cr.P.C. similar to those contained in section 537, Cr.P.C. the Legislature never intended-that the errors committed in stating either the offence or the particulars required to be stated in the charge or omission in that behalf, be regarded as material unless the accused was in fact :misled by such errors or omissions and further, it also occasioned a failure of justice. "

23. After relying upon the above mentioned authority, the Hon'ble Supreme Court of Pakistan in another case of Shah Nawaz v. 'State reported in 1992 SCMR 1583, took the same view.

24. After considering the arguments and case-law, we are of the considered view 'that the errors and defects in the charge had not misled the appellants or occasioned a failure of justice.

25. With regard to the objections about the recording of statement under section 342, Cr.P.C., it will be advantageous to reproduce section 342(1), Cr.P.C. to understand the object and implication of the recording of the statements of the accused. The said provision reads as under:-- "

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 sue 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 he is called on for his defence."

26. Perusal of above Provision of law reveals that it is divided into two parts. Its first part gives discretion to the Court whereas its second part is mandatory. Thus the examination of accused after the close of prosecution evidence is obligatory and cannot be dispensed with. This section is based on the principle involved in the maxim "audi alteram partem" namely, that no one should be condemned unheard. It is clear that where a person is to be charged with any penal liability he should be made aware of all the facts and circumstances existing against him in order to enable him to give explanation in respect of those charges and evidence produced against him at the trial. Therefore, the accused should be heard not merely on what is prima facie proved but also on every circumstance appearing in evidence against him. The trial conducted without compliance of the above provisions of law would be a mockery of law and would stand vitiated.

27. The wisdom behind the recording the statement in question and answer form is to secure that the Court by frame of its question, performs a double function, viz. (a) communicates to the accused to the full extent, that may be necessary in. each particular case what is alleged against him in the prosecution evidence, and (b) ascertains from him what explanation or defence he wishes to put forward in respect thereof. The accused is asked question under this section for the purpose of enabling him to explain any circumstances having an incriminatory effect in relation to the offence charge or appearing in the evidence upon which the prosecution relies to prove its case or which is likely to influence the mind of the Court to draw adverse inference against him.

28. Thus, it is the duty of the Court to put all relevant circumstances appearing in the evidence to the accused. It is pertinent to point out that it would not be enough to put a few general, broad and composite questions to the accused, because adopting such a course the accused may not get an opportunity of explaining all the relevant circumstances. But at the same time the Court should be fair and should not put to the accused detailed questions which may amount to his cross-examination for the simple reason that the ultimate test in determining whether or not the accused has been fairly examined under section 342, Cr.P.C. would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of the prosecution case against him. As such a balance has to be made in asking questions from the accused depending upon the facts and circumstances of each case.

29. It is well settled principle of law that examination under section 342, Cr.P.C. is not an empty formality arid the same has to be carried out to afford an opportunity to accused to explain his position on each aspect of the case and on each and every piece of evidence brought on record by the prosecution, if the same is to be used against him for the purpose of conviction. If such evidence is not put before the accused in the shape of questions while recording his such statement then conviction on the basis of that evidence would be illegal.

30. Keeping in view the above position of law, we have examined the statements of the appellants recorded by the trial Court under section 342, Cr.P.C. We are in agreement with the learned Advocate for the appellants that the trial Court did not record the said statements properly. It appears that while recording such statements, the learned trial Judge did not look into or keep in view the evidence alleged and recorded against each appellant. The trial Court did not put the alleged pieces of evidence recorded against each appellant, to them separately to obtain their explanations. In fact, the first three main questions are general, broad and composite questions about the case in general. This type of statement cannot be termed as a statement within the meaning of section 342, Cr.P.C. In a situation, it can be said, as if no statements of appellants were recorded. The trail Court did not ask any question about the recovery of blood-stained clothes and hatchets from the appellants Nazeer Ahmed, Ghulam Ali and Asghar Ali. But, the trial Court relied upon the said pieces of evidence while convicting them which is not permissible under the law.

31. After giving minute examination to the statements of the appellants, recorded under section 342, Cr.P.C., we are of the considered view that the trial Court had committed material irregularity and illegality in recording the said statements. As such the same has occasioned a failure of justice therefore such errors cannot be cured under section

537. Cr.P.C. Thus, the proceedings from the stage of recording of the statements of the appellants under section 342, Cr.P.C. are vitiated.

32. Above are the reasons of our short order dated 23-10-2003, by which we had disposed of the Appeal in the following manner:-- "For reasons to be recorded separately, the case is remanded for retrial from the stage of recording the statements of accused persons under section 342, Cr.P.C. and onwards. It will be open to the appellants to lead defence afresh." The question of having recourse to the provisions of section 540, Cr.P.C. is always open and if any such point is raised by the accused/appellants or prosecution, learned trial Court should decide it in accordance with law. In consequence of this order the conviction and sentences awarded to the appellants by the trial Court are set aside. The learned trial Judge should complete the trial within a period of four months of receipt of this order and then re-write the judgment deciding all the points in accordance with law." H.B.T./N-39/K Order accordingly.