BAKHSHAL alias BASHAN alias BAKHSH ALI vs STATE

This appeal filed by Bakhshal alias Bashan alias Bakhsh Ali son of Jhangal is directed against the judgment dated 31-8-2002 'passed by learned Sections Judge, Sukkur whereby he has convicted him under Section 364-A, P.P.C. and sentenced him to suffer R.I. for seven years. He has further convicted him under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him thereunder to three years' R.I. and fine of Rs,5,000 or in default of payment of fine one month's further imprisonment. The benefit of Section 382-B, Cr.P.C. has been extended to "him.

2.Briefly stated the case of prosecution as revealed in F.I.R. recorded on the statement of Abdul Hakeem on 22.1.2001 at Police Station, Aba'd, District Sukkar is to the effect that his grand-daughter Siddiqa, daughter of Saddaruddin, aged about seven years, had gone to the house of his brother Abdul Haq on 18.1..2001 for taking "clothes. The complainant alongwith his brother Abdul Haq and Qamaruddin was going from his house to his shop situated in Bahar Colony, Sukkur at about 5-00 p,m. When they were passing through the under construction house of Shafi Muhammad they heard the cries of Mst. Siddiqa when they rushed there, they saw that the accused Bakhshal alias Bashan son of Jhangal,, who was known to them, was holding his grand daughter while his hand was in her Shalwar and was trying to put off her Shalwar. So they tried to catch him but on seeing them he ran away through the opened window. They were told by Siddina that the accused had forcibly taken her away to that under-construction house and was trying to commit rape but she raised. hue and .cry which attracted them and the accused made good his escape. The complainant alleged that they went to the house of father of the accused and informed him of the whole occurrence. They demanded for the "Faislah" but he requested them to wait for two or three days. However, on the day of report, father of accused replied that he will not give any "Faislah'', and asked them to do so whatever they could. Hence this report was lodged. The appellant/accused was subsequently, arrested and challaned to face trial.

3.At the trial, the prosecution examined seven witnesses in 'all. Statement of the appellant/accused was also recorded and on conclusion of the trial he was convicted and sentenced as mentioned hereinabove.

4.The case was fixed for regular hearing and learned counsel for the appellant as well as learned counsel for the State were heard. At the outset learned counsel for the appellant raising a legal objection submitted that statement of the appellant/accused, recorded under the provision of Section 342, Cr.P.C. was not recorded as required under the provision of Section 364(2), Cr.P.C.

Plating reliance on a number of judgments of superior Courts, he submitted that the case be remanded to the learned trial Court for recording the statement of appellant/accused afresh as required under the above provisions. Learned counsel for the State also shared the same views.

5. I have given my anxious consideration to the point raised by the learned counsel for the appellant. It may be appreciated that the examination of an accused under Section 342, Cr.P.C. is intended to afford him full opportunity to explain all incriminating circumstances appearing evidence against him. Affording such an opportunity is a must and the accused has to be heard in detail 'to enable him to explain his position and lead any evidence in defence and also make statement on oath in disproof of the allegation levelled against him if he opts to do so. Moreover, it is by now well-settled that the provisions contained in Section 364(2), Cr.P.C. are mandatory in nature and non-compliance of the same is not a merely curable irregularity but is an incurable illegality, In the instant case the trial Court is not appending the necessary certificate has thus committed an illegality whereby proceedings of the trial Court stand vitiated inasmuch as noncompliance of the mandatory provisions of law viz. Section 364(2), Cr.P.C. are concerned. That being so it follows that case has to be remanded to the trial Court for adjudication afresh.

6. Consequently, in view of above, this appeal is allowed; conviction and sentences of the appellant are set aside and the case is remanded to the learned trial Court for recording the statement of the appellant/accused under Section 342, Cr.P.C. afresh as required, under the provisions of Section 364(2), Cr.P.C. while also providing an opportunity to the parties to lead any further evidence if they opt to do so, and thereafter rewriting the judgment as required under the law. The learned trial Court may consider and decide, on merits, bail application in the matter, if matte by the appellant according to law.