2001 PLP 2128 (YLR)

FAIZ MUHAMMAD QURESHI, J.

Appellant Abdul Majeed has assailed the judgment, dated 30-7-1998 passed by the Sessions Judge, Badin in Sessions Case No.59 of 1993 whereby he has been awarded death sentence under section 302, P.P.C. He be hanged by neck till he is dead. He is further directed to pay compensation of Rs. 50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. as land revenue. In case of non-payment of compensation amount, the accused shall suffer R.I. for six months. Hence this appeal. There is also a. death confirmation under section 374, Cr.P.C. before us. We intend to dispose of both by one judgment. The case of the prosecution briefly stated, is that accused Muhammad Soomar who was uncle of complainant Abdul Shakoor, in his lifetime agreed to give hand of her daughter Mst. Chhutan alias Fatima to the younger brother of the complainant. Subsequently, at the instance of accused Muhammad Hashim, Mst. Fatima was given to Ghulam Rasool son of Haji Pandhi against the wishes of the complainant and there arose dispute between the parties. Abdul Shakoor the complainant in this case alleged in the F.I.R. that Muhammad Hashim used to issue threats to him due to this annoyance. He stated in the F.I.R. that on the day of incident i.e. 14-6-1993, he alongwith his cousin Ghulam Hussain, Ali Muhammad and Muhammad Usman had gone to Kari Mori for lifting straws. On their return, they stopped at Talhar Town at Tando Bago Taxi Stand at about 1-50 p.m. They went to a hotel to take tea. His father Muhammad Usman went to purchase Beeris. After that complainant heard cries of his father and they all came out of the hotel and saw that accused Abdul Majeed son of Muhammad Hashim and Muhammad Siddique son of Mir Muhammad were causing hatchet blows to Muhammad Usman on his head, hand and leg. They challenged the accused, who immediately ran away towards the town. They saw that Usman had died due to injuries. Thereafter, complainant went to police station and lodged the report. After investigation of the case, police arrested the accused, and on completion of usual investigation submitted challan against the accused in Court on 23-6-1993. The charge Exh 2 against the accused was framed on 1st November, 1995 to which they pleaded not guilty and claimed to be tried. Their such pleas were recorded at Exhs.3 to 5 on record. At the trial, the prosecution in order to establish charge against the accused examined P.W.1 Abdul Shakoor at Exh.6. He produced F.I.R. on the case at Exh.6/A. P.W.2 Ismail at Exh.7/A, P.W.3 Jaffar at Exh.8. He, produced Mashirnama of place of Wardat at Exh.8/A, Mashirnama of arrest of accused Muhammad Siddik and Abdul Majeed and recovery at Exh.8/B, Mashirnama of recovery of clothes of accused Abdul Majeed and Muhammad Siddik at Exh.8/C, Mashirnama of clothes of deceased at Exh.8/D, Mashirnama of arrest of accused Muhammad Hashim at Exh.8/E. P.W.4 Ghulam Hussain at Exh.9. He produced his 164, Cr.P.C. statement at Exh.9/A. P.W.5 Dr. Nisar Ali at Exh.10. He produced post- mortem report of deceased Muhammad Usman at Exh.10/A. P.W.6 Ghulam Qadir at Exh.11. He produced confessional statement of accused Abdul Majeed at Exh.11/A, and confessional statement of accused Muhammad Siddik at Exh.ll/B. P.W.7 Noor Ali the Tapedar at Exh.12. He produced site sketch at Exh.12/A. P.W.8 Sharafuddin the then S.H.O. Police Station Talhar at Exh.13. He produced inquest report at Exh.13/A, thereafter learned D. D. A. closed the prosecution side under his statement Exh.14 on record. Statements of accused Abdul Majeed, and Muhammad Hashim were recorded Exhs.15 and 16 respectively. In their statements under section 342, Cr.P.C. they denied, the allegation of prosecution. However, they neither examined themselves on oath nor any defence. The learned trial Court formulated the points for determination as under:-- (1) Whether deceased Muhammad Usman died unnatural death? (2) Whether on 14th day of June, 1993 at 14-15 hours at Taxi Stand Talhar Town, Taluka Badin, in furtherance of their common intention, duly armed with hatchets, the present accused persons caused Qatl-e-Amd of deceased Muhammad Usman by causing hatchets injuries? (3) What offence if any accused persons have committed? Having gone through the evidence adduced by the prosecution and other material available on record the trial Court passed the judgment in terms as stated above. At the very outset and without touching the merits of the case Mr. Qurban Ali Chohan has drawn our attention on the charge available at page 2 of the paper book which shows that the charge has been framed under section 302, P.P.C. read with 34, P.P.C. According to Mr. Qurban Ali Chohan the charge is defective as it has not been brought to the notice of appellant as to whether the charge has been framed under section 302(a), (b) or (c) and it is the right of accused to be informed with regard to the framing of charge. Mr. Qurban Ali Chohan has further drawn our attention on the statement of the accused under section 342, Cr.P.C. which is available at page 74 and has contended that the statement does not contain the signature of the accused and the certificate has not been written in handwriting of the learned Presiding Officer. There is a flagrant violation of the mandatory provisions of section 364(2), Cr.P.C. which is the illegality and not curable under section 537, Cr.P.C. He has cited the case-law reported in 1997 PCr.LJ 539 and 1999 PCr.LJ 1076 and 2086. On the other hand Mr. Muhammad Azeem Panhwar learned counsel for the State has submitted that as far as the charge is concerned it does not appear to be defective but the statement of the accused recorded under section 342, Cr.P.C. is totally defective and there is violation of section 364(2), Cr.P.C. as neither the signature is available of the accused on the statement nor the certificate has been written by the Presiding Officer in his handwriting. He has stated that from Sindhi translation the signature of the accused is available and he is unable to distinguish between the non- availability of the signature on the statement of the accused in English and signature available in Sindhi version. Notwithstanding he has contended that this is the illegality and he has given no objection if the case is remanded from the stage of recording the statement of section 342, Cr.P.C. of the accused. We have heard learned counsel for the parties and have gone through the charge, statements and original record. Admittedly it is the settled law that the accused has to be informed at the time of framing charge and in the instant case the charge has been. framed only 302, P.P.C. no where it is mentioned whether 302(a), (b) or (c) and thus, the appellant/accused has not been kept abreast with regard the allegations against him and reliance can be placed on a case reported in 1999 PCr.LJ 1076. We are of the considered view that the charge is also defective and the trial Court is directed to start the case from the stage of framing the charge and so also to record the statement of the accused under the mandatory provisions of section 364(2), Cr.P.C. and that further directions to provide full opportunity to the parties and then decide the matter in accordance with law. Case is remanded, conviction and sentence are set aside. In result the appeal is allowed and the death reference is rejected. H.B.T./A-224/K Order accordingly.