JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Appeal No. 438 of 2016

Date of hearing: 03.03.2017.

Date of decision: 16.03.2017.

Appellant: Faraz Mazhar son of Mazhar Ali, through Mr. Muhammad Akbar Awan, Advocate.

Respondent: The State through Mr. Abdullah Rajput, A.P.G. Sindh.

1. For hearing of MA No. 12084/2016

2. For hearing of main appeal.

J U D G M E N T

KHADIM HUSSAIN TUNIO, J: - Appellant Faraz Mazhar was tried by learned IX-Additional Sessions Judge, Karachi-East in Sessions case No. 496 of 2015. By judgment dated 28.11.2016, appellant was convicted u/s 23(i)(a) of Sindh Arms Act, 2013 and sentenced to suffer R.I for 07 years and to pay the fine of Rs.20,000/-. In case of default in payment of fine, he shall suffer R.I for 6 months more. However, the benefit of section 382-B Cr.P.C was extended to appellant.

2.         Instant appeal was fixed for hearing of Miscellaneous Application under section 426 Cr.P.C. as well as for main appeal but the learned counsel for the appellant and learned A.P.G. Sindh both were ready to argue the main appeal, hence arguments were heard on main appeal.

3.         Mr. Muhammad Akbar Awan,  learned counsel for appellant contended that the PWs are police officials and interested witnesses; that no independent witness has been examined by the prosecution though the appellant alleged to have been apprehended by the mob of public persons; that there are material contradictions and discrepancies in the evidence of the PWs; that the contradictions in evidence of PWs have not been considered by the learned trial Court; that the conviction and sentence awarded to appellant is capricious and based on presumptions, suppositions, conjectures and surmises; that the prosecution failed to prove its case against appellant; that there is violation of section 103, Cr.P.C.; that impugned judgment is not sustainable under the law; that the sentence awarded to the appellant by the learned trial Court is not sustainable under the law and is liable to be set-aside.

4.         Mr. Abdullah Rajput, learned APG, has supported the impugned judgment.

5.         I have heard learned counsel for parties and perused record carefully with their assistance.

6.         Before touching the merits of the case, the provision of section 342 Cr.P.C. is reproduced herein below for ready reference and convenience:-

S.342 Cr.P.C.Power to examine the accused.

(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecutionhave been examined and before he is called on for his defence.

(2) The accused shall not render him liable to punishment by refusing to answer such questions or by giving false answers to them; but the Court [....] may draw such inference from such refusal or answer as it thinks just.

(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

[(4) Except as provided by subsection (2) of S. 340 no oath shall be administered to the accused.]

7.         It is observed that the appellant has been charged for an offence punishable u/s: 23(1)A Sindh Arms Act 2013. It is also observed that the learned trial Court has not put all the incriminating piece of evidence to the appellant in his statement u/s.342 Cr.P.C. as such same cannot be used as piece of evidence against the appellant. It is further observed that the statement of appellant u/s. 342 Cr.P.C. does not bear signature/LTI of appellant. The Hon’ble Apex Court has already observed in the case of Munawar Hussain alias Asghar Ali reported in 1991 SCMR-1601, while deciding criminal revision application No: 48 of 2001 Re- Akhtar Hussain Vs. The State. Reference in this respect can also be made on cases of Nadir Khan Vs. The State (2002 MLD-1873), Ashiq Ali Vs. the State (2005 P.Cr. L J-48), Nazir Ahmed and others Vs. the State and others (PLD 2005 Karachi-18) and Muhammad Ayub Vs.The State (2006 P.Cr.L.J-257). In the present case learned trial Court has not put the question to the accused in his statement u/s.  342,  Cr.P.C  that theBallistic Experts report is in positive.

            In case reported as Habibullah alias Bhutto and 4 others Vs. the State (PLJ 2007 Cr. C (Karachi)269= PLD 2007 Karachi 68) it has been observed :-

“From this fact alone it appears that the learned trial Judge did not go through the evidence while recording the statements under section 342, Cr.P.C. so as to put all incriminating pieces of evidence to the appellants to obtain their explanation. Under section 342, Cr.P.C. a duty is cast upon the trial Judge to put questions to the accused persons on the incriminating facts which have come in the evidence enabling the accused persons to explain circumstances appearing on the evidence against them. Thus the Provisions of section 342, Cr.P.C. have not been fully complied with.

It is not out of place to mention that a duty and obligation is also cast upon the defence counsel to take active part in the proceedings and assist the Court if he finds any irregularity or illegality being committed by the trial Court. In order to put check upon the proceedings, the C appellate Court is required to examine and determine, while examining the question whether failure of justice has occurred due to error, omissions or irregularity in the proceedings, whether the objection could or should have been raised at an earlier stage in the proceedings as provided under explanation to section 537, Cr. P.C. The defect in recording the statement was such where the defence counsel could and should have raised the same before the trial Judge so that a proper guidance could have been extended to the Court. If such procedure would have adopted, then the defects could have not occurred in the proceedings. Silence on the part of the defence counsel clearly indicates that he did not find the defects such, which could have prejudiced the appellants in their defence. Nevertheless, each case has to be examined C from the facts and circumstances appearing thereunder and the defect committed by the trial Court. This does not mean that the trial Court is given license to commit such defects. It is the duty of the Judge to put all incriminating evidence to the accused to obtain his explanation. If he does not do so then the said piece of evidence cannot be used against the accused to convict him. If it is done then it is very dangerous thing to do so therefore the Judge should be very careful in recording such statement.”

8.         In view of above position, discussion, and circumstances, the appeal in hand is accepted. The impugned judgment dated 28.11.2016, passed by the learned IX-Additional Sessions Judge, Karachi East, is set-aside and case is remanded to the learned trial Court, for re-trial from the stage of recording of statement u/s. 342, Cr.P.C.  afreshand attention of the appellant shall be invited to all the incriminating pieces of evidence placed on record and he be provided an opportunity to offer explanation with regard thereto and obtain signature/LTI of appellant on his statement u/s. 342,  Cr.P.C. The appellant shall be at liberty to lead evidence in his defence or to appear himself as his own witness in terms of section 340(2), Cr.P.C. if he chooses to do so. Parties are directed to appear before learned trial Court on 01.04.2017, without claiming further notice.

            Instant Cr. Appeal stands disposed of alongwith pending applications.

JUDGE