2005 PLP 2155 (YLR)

CHAUDHARY MUHAMMAD TAJ, J.

This appeal has been filed to challenge the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 30-4-2003 whereby the appeal filed against the order of the District Court of Criminal Jurisdiction Bhimber, was dismissed and conviction and sentences passed by the trial Court were maintained.

2. The facts briefly stated are that a case under sections 324, 337, 341, A.P.C. was registered at the instance of Taj Din complainant who lodged First Information Report at Police Station, Barnala along with two injured persons namely Muhammad Shafique and Salah-ud-Din that accused Muhammad Aslam was injured by his son Muhammad Abbas during a quarrel as a result Muhammad Abbas was arrested and Muhammad Shafique, husband of his sister-in-law, was making efforts for his release. Thereafter, a compromise was effected with accused Muhammad Aslam through the efforts of Muhammad Shafique. It was further stated that according to the programme complainant along with Muhammad Shafique, Abdul Rehman, Salah-ud-Din and Muhammad Fayyaz reached at 'pulli' near village Porh by a jeep from Lahore where accused persons Muhammad Aslam and Mazhar Iqbal armed with 'Kalashnikovs' and another accused armed with fire-arm stopped their jeep. Accused Muhammad Aslam asked everyone to get down from jeep. They came out from the vehicle. It was alleged that accused Muhammad Aslam asked the persons to get aside and then fired at the abdomen of Muhammad Shafique. He stated that he should suffer for the help rendered by him to Muhammad Abbas. The other accused Mazhar Iqbal also fired at Muhammad Shafique which hit on his right leg. Muhammad Shafique fell down while Salah-ud-Din was hit at arm by the firing made by the other person whose name was not known. The injured person Muhammad Shafique while taking to Hospital succumbed to the injuries. The Investigating Agency investigated the matter and sent the convict-appellant and other accused to face trial in the competent Court of jurisdiction under sections 302, 342, 341, A.P.C. and section 13 of Arms Ordinance (XX of 1965).

3. After taking cognizance the prosecution examined as many as eleven witnesses in support of prosecution version. The trial Court after conclusion of the trial, convicted the appellant under sections 302, 341, A.P.C. and section 13 of Arms Ordinance XX of 1965. He was sentenced the punishment of 'Qisas' under section 302 and was also sentenced a fine of Rs.500 and to undergo one month simple imprisonment in case of failing to make the payment of fine. He was further sentenced for two years R.I. under section 13 of Arms Ordinance XX of 1965. The other accused Mazhar Iqbal (not before the Court) was also convicted and sentenced five years R.I. with a fine of Rs.500 under section 341, A.P.C. and also a sentence of one month simple imprisonment in case of failing to make payment of fine with a further imprisonment of two years R.I. under section 13 of Arms Ordinance XX of 1965. The convict Mazhar Iqbal was also given the benefit of section 382-B, Cr.P.C. The non-bailable warrants were also issued against the third accused person. An appeal on behalf of the convict-appellants against their conviction and sentence was filed while the complainant also filed an appeal for enhancement of the sentences. The learned Judge in the Shariat Court dismissed the appeal filed on behalf of the convicts while accepting the appeal filed. on behalf of the complainant the sentence of five years R.I. awarded to Mazhar Iqbal was enhanced as ten years. R.I. This appeal challenges the aforesaid judgment and order. Mr. Muhammad Yunus Tahir, the learned counsel representing the appellant, submitted that an important legal point requires resolution before entering into the other merits which vitiates the whole trial and the case is required to be remanded to the trial Court. It was argued that the important prosecution evidence such as medical evidence, recovery of incriminating articles have not been put to the accused while recording his statement under section 342, Cr.P.C. It was forcefully argued that if the aforesaid evidence is excluded from consideration, the convict-appellant is entitled to acquittal as no other evidence stands for conviction. The matter becomes doubtful. The learned counsel read out the statement recorded under section 342, Cr.P.C. in support of his assertions.

5. Sardar Abdul Razzik Khan, the learned Additional Advocate-General, assisted by Raja Mazhar Iqbal, the learned counsel for the complainant, frankly stated before the Court that the important prosecution evidence and incriminating material was left over to be put to the accused person at the time of recording the statement. Both the learned counsel contended that the matter may be remanded to the trial Court after setting aside the conviction and sentences for putting the aforesaid evidence and the other evidence not put to the accused persons.

6. We have heard the learned counsel for the parties and also gone through the record. A perusal of the record shows that the important prosecution evidence which includes the medical evidence along with the recovery evidence of incriminating material was not put to the accused persons, particularly the convict-appellant herein. 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. A similar situation arose before this Court in a case titled Niaz Ahmad v. The State and another (Criminal Appeal No.51 of 2003 decided on 31-1-2004) where the proposition was resolved in the following words:

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6. We in the light of the arguments of learned counsel for the parties examined the record carefully. We have noticed that in fact the incriminating material which was relied upon and made basis for recording conviction of the appellant in the shape of medical report, site-plan, crime empty, reports of fire-arm export, Forensic Science Laboratory and the post-mortem report prepared by the Medical Officer besides the weapon of offence, the gun, was not put to him while recording his statement under section 342 of Cr.P.C. On account of this omission the appellant was deprived of from full notice of the supporting evidence to the allegation of murder levelled against him; rather he was condemned unheard. The omission to put incriminatory material to the convict-appellant in our view has resulted in the misadministration of justice. The provisions contained in sections 242 and 342 of Cr.P.C. are in fact meant to facilitate the proper conduct of the trial.

7. This Court in two cases reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 and Fazal Ellahi v. Muhammad Yaqub and 17 others 2003 YLR 2897, has held that if a piece of evidence is not put to an accused person during his examination under section 342, Cr.P.C., either the case may be remanded for the re-examination of such accused person under section 342, Cr.P.C., or the same be excluded from consideration.

8. In the light of peculiar facts of this case it is felt more appropriate to remand the case to the trial Court by setting aside the sentences recorded against the convict appellant with the direction that it shall' put all incriminatory material available against the appellant to him for seeking his explanation .."

6. In view of the above stated law and the stand taken by the learned counsel for the parties, we accept the appeal and set aside the order passed by the Shariat Court of Azad Jammu and Kashmir and thereby also set aside the conviction and sentences passed by the Shariat Court and remand the case to the trial Court which shall put the evidence and incriminating material to the accused persons in their statements to be recorded under section 342, Cr.P.C. and to proceed in accordance with law. N.H.Q./164/SC(AJ&K) Case remanded.