2013 PLP 106 (YLR)

HABIB-UR-REHMAN SHAIKH, J.

This is an appeal filed by the appellant Muhammad Afzal son of Muhammad Ismail against impugned Judgment 13-11-2010 whereby he was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000 (One Lac) under section 302, P.P.C. and in case of default in payment of fine, he shall suffer R.I for one year more with directions to pay Rs.400,000 (Four Lac) as compensation to the legal heirs of deceased in case of default in payment thereof to suffer R.I. for two years more. Appellant was given benefit of section 382-B, Cr.P.C. During course of the arguments, it has come on record that statement of accused under section 342, Cr.P.C. has not been properly recorded, in which no question regarding last seen evidence was put by the learned trial Court from the accused and according to the mashirnama of recovery of the dead body it is a matter of record that at about 2140 hours the dead body was recovered but in the statement in question No.1, the trial Court put a question regarding date and time which is wrongly mentioned apart from the actual date as 26-4-2007 at 2140 hours. Another important point for consideration is that signature of the appellant is missing from the statement of the accused. These points are sufficient for remand of the case to the trial Court apart from other points. Learned counsel for the complainant has no objection for remand of the case but he has objection on the consideration of bail in favour of the appellant/accused. He contends that after release on bail, the appellant will abscond away, he was police officer and influential person, he had tampered with the prosecution evidence during investigation. He further submits that learned trial Court may be directed to decide the matter within one month and if bail is granted by this court to the appellant and he misuses such concession during re-trial then the complainant may be left at liberty to move application for cancellation of his bail before the trial Court and same may be considered by the trial Court on its merits. Learned Deputy Prosecutor General Sindh has also no objection for remand of the case and for concession of bail but he states that heavy surety amount may be fixed. In view of the above facts and circumstances of the case there are so many lacunas in the statement of accused under section 342, Cr.P.C, therefore, impugned Judgment dated 13-11-2010 is set aside and case is remanded to the learned trial Court with directions to the trial Court to record the statement of accused afresh with all relevant questions which were brought before the trial Court during trial and after hearing the parties pronounce Judgment. Meanwhile appellant Muhammad Afzal is granted bail subject to furnishing solvent surety in the sum of Rs.500,000 (Five hundred thousands) and P.R bond in the like amount to the satisfaction of the trial Court. The trial Court is directed to decide the matter expeditiously within a period of 60 days after receipt of this order. In case the applicant misuses the concession of bail, the trial Court may take appropriate action against him in accordance with law. With the above observations, appeal stands disposed of along with listed application. Let R & Ps along with certificated copy of this judgment be sent to the learned trial Court. MWA/M-114/K Order accordingly.