Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Aftab Ahmed Gorar

Date of hearing: : 18.04.2016

Date of order : 18.04.2016

Appellant Ishtiaq Ahmed : through Mr. Abdul Razzak advocate

State : through Mr. Zafar Ahmed Khan

Additional P.G.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Ishtiaq Ahmed was tried by VI Additional Sessions Judge, Karachi East for offences under sections 396/302/324/34 PPC. By judgment dated 13.11.2012, accused Ishtiaq Ahmed was found guilty and convicted under section 302 PPC and sentenced to death. He was also convicted under section 324, PPC and sentenced to seven years R.I. and to pay fine of Rs.30,000/- and in case of default in payment of fine, he was ordered to suffer R.I. for six months. Trial Court made reference to this Court for confirmation of death sentence as required under section 374 Cr.P.C.

2. Facts of this case and evidence produced before the trial Court find an elaborate mention in the judgment passed by the trial Court and, therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

3. Mr. Abdul Razzak, learned counsel for the appellant, argued that trial Court had recorded statement of accused in a casual manner, in a case punishable for death or imprisonment for life. He has submitted that while not putting all the incriminating pieces of evidence to the accused, particularly question regarding identification parade, serious prejudice has been caused to him and omission on the part of the trial Court amounts to denial of a fair opportunity to the accused and it has vitiated the trial. In support of his contentions, he has relied upon an unreported judgment in Criminal Appeal No.292 of 2009 dated 28.10.2010 in the case of MUHAMMAD HASSAN versus THE STATE and MUHAMMAD NAWAZ and others Versus The STATE AND OTHERS (2016 SCMR 267).

4. Mr. Zafar Ahmed Khan, learned A.P.G. appearing for the State did not controvert the above legal position and recorded no objection to the remand of the case to the trial Court.

5. We have carefully gone through the evidence and statement of accused recorded by the trial Court under section 342 Cr.P.C. Mr. Obaid Ahmed Khan, VI Additional Sessions Judge, Karachi East, recorded statement of accused Ishtiaq Ahmed under section 342, Cr.PC at Ex-24. Seven (7) questions were put up to accused but material question regarding identification of the accused by the witnesses before the Magistrate was not put up to him. It is well settled that all the material questions regarding allegations against the accused should be put to him while recording his statement under section 342 Cr.P.C. for his explanation but in this case no question regarding identification parade was put to the accused and such illegality committed by the trial Court is not curable under the law as held in the cases of Mohammad Shah v. the State 2010 SCMR 1009

6. From the perusal of statement of accused Ishtiaq Ahmed recorded under section 342, Cr.PC it transpires that following material question/incriminating piece of evidence was not put to the accused for his explanation/reply:

(1) Civil Judge/Judicial Magistrate had deposed that he held identification parade on 09.07.2007 in which PWs Muhammad Raheel and Mst. Hashmat Bibi identified the accused before him.

7. Keeping in view the above lapses/omissions on the part of trial Court we have perused the judgment of the trial Court. Trial Court has relied upon the above piece of evidence for recording conviction against the accused. It is the requirement of the law that all incriminating pieces of evidence available on record are required to be put to the accused as required under section 342, Cr.PC in which words used are, “For the purpose of enabling the accused to explain any circumstances appearing in evidence against him” which clearly demonstrate that not only the circumstances appearing in the Examination-in-Chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means Examination-in-Chief, cross-examination and re-examination, as provided under Article 132 read with Article 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The perusal of statement of accused, under section 342, Cr.PC, reveals that the portion of the evidence was not put to the accused in his statement under section 342, Cr.PC enabling him to explain the circumstances particularly when accused led police to place where he had buried dead body. It is well settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.PC, then the same cannot be used against him for his conviction.

Learned Division Bench of this Court in the case of HABIBULLAH alias BHUTTO and 3 others versus THE STATE (PLD 2007 Karachi 68) remanded the case to the trial Court for re-trial from the stage of recording the statement of the appellants under section 342, Cr.PC and re-writing the judgment in accordance with law.

8. Honourable Supreme Court in an unreported judgment in Criminal Appeal No.292 of 2009 dated 28.10.2010 in the case of MUHAMMAD HASSAN versus THE STATE held as under:-

“3. In view of the order we propose to pass there is no occasion for going into the factual aspects of this case and it may suffice to observe that the case of the prosecution against the appellant was based upon prompt lodging of the F.I.R., statements of three eyewitnesses, medical evidence, motive, recovery of weapon of offence and a report of the Forensic Science Laboratory regarding matching of some of the crime-empties with the firearm allegedly recovered from the appellant’s possession during the investigation but we have found that except for the alleged recovery of Kalashnikov from the appellant’s possession during the investigation no other piece of evidence being relied upon by the prosecution against the appellant was put to the appellant at the time of recording of his statement under section 342, Cr.PC.

4. It is by now a settled principle of criminal law that each and every material piece of evidence being relied upon by the prosecution against an accused person must be put to him at the time of recording of his statement under section 342, Cr.PC so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused person defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a trial. The case in hand is a case of murder entailing a sentence of death and we have truly been shocked by the cursory and casual manner in which the learned trial Court had handled the matter of recording of the appellant’s statement under section 342, Cr.PC which statement is completely shorn of the necessary details which were required to put to the appellant. We have been equally dismayed by the fact that even the learned Judges of the Division Bench of the High Court of Sindh deciding the appellant’s appeal had failed to take notice of such a glaring illegality committed by the trial Court. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely an irregularity curable under section 537, Cr.PC but the same was a downright illegality which had vitiated the appellant’s conviction and sentence recorded and upheld by the learned Courts below.”

9. In the case of MUHAMMAD NAWAZ and others Versus The STATE AND OTHERS (2016 SCMR 267) Honourable Supreme Court of Pakistan has observed as under:-

“………….While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence.”

10. In the present case trial Court did not perform it’s function diligently and has taken the matter lightly and in a casual manner, awarded death sentence to the accused. As such, appellant was prejudiced in his trial and defence. Therefore, a miscarriage of justice has occurred in the case. Procedure adopted by trial Court is an illegal procedure that cannot be cured under section 537, Cr.PC. Thus, it has vitiated the trial. Hence, impugned judgment is liable to be set aside.

11. In the light of what has been discussed above, the impugned judgment is set aside. The case is remanded to the trial Court for retrial from the stage of recording the statements of the appellant under section 342, Cr.PC and rewriting the judgment in accordance with law.

12. Appeal is allowed in the above terms. Reference of confirmation of death sentence is answered in negative.

This appeal stands disposed of in the above terms.

J U D G E

Gulsher/PS