1991 P Cr (PLP)

3. To prove its case the prosecution had produced six witnesses in all. The P.W. 1 Khan is complainant. P.W.2 Khan son of Karam Ali eye-witness, and P.W. 3 Zafar Abbas injured P.W.3 supported the version of the prosecution as stated in the F.I.R. and corroborated each other. P.W.4 Mazhar Hussain A.S.I. had recorded the formal F.I.R. Exh.P.A./1. P.W.5 A.B. Saleem had examined injured P.W.3 and had prepared medico-legal report Exh. P.B., and sketch thereof Exh.P.B./1. P.W.6 Nasir Ali Shah Inspector had investigated the case and after completing the challan had submitted the same before the Court. The recoveries effected were Sotas Exh. P.E. from Ghulam petitioner in Criminal Revision Petition No.463 of 1989 and a Sota Exh. P.F. from petitioner Baig. The learned trial Court placing reliance on the evidence produced before it had convicted and sentenced the petitioners as stated above, and thereafter, the learned Appellate Court, dismissing the appeal of the petitioners against the same had reduced the sentences as stated above. The learned counsel for the petitioners in his detailed arguments contends for setting aside the conviction of the petitioners. The learned counsel for the petitioners and the State have been heard at length and the record of the case perused with their assistance. Learned counsel for the petitioners submitted detailed arguments to support his contention for setting aside the impugned judgments. However, the main arguments need to be dealt with pertain to the material irregularity committed by the learned trial Court while examining the petitioners/accused under section 342, Cr.P.C. and failure of the said Court to append the certificate in accordance with the provisions of section 364, Cr.P.C. under the said statements by the accused petitioners. In this respect, the `learned counsel for the petitioners read out the statement of the accused under section 342, Cr.P.C. and pointed out that therein the first question is as follows:-- and that the second question put to the accused was as follows:-- Learned counsel for the petitioners pointed out that in the questions stated above, put to the accused under section 342, Cr.P.C. is different from the date, time and place of occurrence as stated in the F.I.R. and similarly deposed by the prosecution witnesses before the trial Court in their respective testimony. While emphasising his point the learned counsel read out the relevant portion from the F.I.R. Exh.PA./1 which is as follows:-- Therefore, the learned counsel submitted that the questions put to the accused petitioners under section 342, Cr.P.C. are extraneous to the facts as put up by the prosecution through the F.I.R. PA./1 and the testimony of the prosecution witnesses. Hence contended that as the said material irregularity amounting to illegality is not curable under any provision of law and as a result thereof, the evidence of the prosecution produced in the trial Court, cannot be used against the petitioners, the present case is one of acquittal under such circumstances. To support his contentions he placed reliance upon Muhammad Bashir v. State 1985 P Cr. L J 391 wherein it has been held that facts appearing in evidence not having been put to the accused when examined under section 342, Cr.P.C., render such piece of evidence incapable of being used against him. The other main contention of the learned counsel for the petitioners deals with absence of the certificate in accordance with provisions of section 364, Cr.P.C. by the learned trial Court at the end while recording the statements of the accused under section 342, Cr.P.C. In this respect, reliance is placed on Muhammad Rafique v. State 1985 P Cr. L J 1985. Learned counsel for the State, after perusing the record conceded that illegality had been committed by the trial Court in recording of the statements of the accused petitioners under section 342, Cr.P.C. as pointed out, and further conceded that the certificate as required under section 364, Cr.P.C. has not been appended under the said statements of the accused/petitioners. However, he further submitted that under such circumstances, the criminal revision petition may be allowed but the case be remanded to the trial Court. In view of what is stated above, as the facts appearing in evidence have not been put to the petitioners/accused in their examination under section

342. Cr.P.C. by the learned trial Court and as the said serious omission renders the prosecution evidence incapable of being used against the accused and as the learned trial Court failed to append the certificate as required under the'', provisions of section 364, Cr.P.C. and as the said omission is illegal and not curable, therefore, the present criminal revision petitions are hereby allowed and the conviction of the petitioners and the sentences awarded to them in consequence thereof are hereby set aside. However, as it is more than six years old case, pertaining to January 1985 and as the petitioners have already suffered the agony of protracted trial and have further suffered the sentence of couple of months, therefore, under the facts and circumstances of the case, I am not pursuaded to remand the case. The petitioners are on bail, their bail bonds stand discharged. In accordance with terms stated above the present Criminal Revision Petitions Nos.444 and 463 of 1989 stand disposed of. N.H.Q./F-256/L Revisions allowed.